WAVERIDER COMMUNICATIONS INC amends offer.
Excerpted from S-3/A filed on 04/28 by WAVERIDER COMMUNICATIONS INC:
WAVERIDER COMMUNICATIONS INC amends offer.
prospectus will be filed, if required, pursuant to Rule 424(c) under the
Securities Act of 1933. Such supplement will disclose:
(1) the name of each selling stockholder and of the participating
broker-dealer(s);
(2) the number of shares involved;
(3) the price at which such shares were sold;
(4) the commissions paid or discounts or concessions allowed to
such broker-dealer(s), where applicable;
(5) that such broker-dealer(s) did not conduct any investigation
to verify the information set out or incorporated by reference
in this prospectus; and
(6) other facts material to the transaction.
WaveRider has agreed to pay the expenses incurred in connection with
preparing and filing this prospectus and the Registration Statement of which it
is a part (other than selling commissions). WaveRider has agreed to indemnify
the selling stockholders against certain liabilities, including liabilities
under the Securities Act.
In addition, in the event the selling stockholders sell short the
common stock of WaveRider, this prospectus may be delivered in connection with
such short sales and the shares offered by this prospectus may be used to cover
such short sales. It is the view of the SEC that the December Selling
Stockholders are "underwriters" within the meaning of the Securities Act. In
making sales, broker-dealers or agents engaged by the selling stockholders may
arrange for other broker-dealers or agents to participate. Such broker-dealers
or agents may receive commissions or discounts from the selling stockholders in
amounts to be negotiated immediately prior to the sale. These broker-dealers or
agents, and any other participating broker-dealers or agents, as well as the
selling stockholders, may be considered "underwriters" within the meaning of the
Securities Act of 1933.
WaveRider has informed the selling stockholders that the
anti-manipulative rules under the Exchange Act of 1934, including Regulation M,
may apply to their sales in the market. WaveRider has furnished the selling
stockholders with a copy of Regulation M. WaveRider has also informed the
selling stockholders that they must deliver a copy of this prospectus with any
sale of their shares.
DISCLOSURE OF SEC POSITION
ON INDEMNIFICATION FOR SECURITIES ACTS LIABILITIES
WaveRider's amended and restated Articles of Incorporation and By-Laws
provide that WaveRider shall indemnify its directors and officers, to the
fullest extent permitted under Nevada law, including in circumstances in which
indemnification is otherwise discretionary under Nevada law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of WaveRider,
pursuant to the foregoing provisions, or otherwise, WaveRider has been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Securities Act, and is, therefore, unenforceable.
LEGAL MATTERS
Foley, Hoag & Eliot LLP, of One Post Office Square, Boston,
Massachusetts 02109-2170 will issue an opinion, for WaveRider and the selling
stockholders, about the legality and validity of the shares. WaveRider knows of
no members of Foley, Hoag & Eliot who are beneficial owners of common stock of
WaveRider.
EXPERTS
The financial statements as at December 31, 1998 and for the year then ended
incorporated in this registration by reference to the Annual Report on Form
10-KSB for the year ended December 31, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of the said firm as experts in auditing and accounting.
The financial statements as at December 31, 1997 and for the year then ended
incorporated in this registration by reference to the Annual Report on Form
10-KSB for the year ended December 31, 1998 have been so incorporated in
reliance on the report of Johnson, Holscher & Company, P.C., independent public
accountants, given on the authority of said firm as experts in auditing and
accounting.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection
with the sale of the shares being registered hereby:
SEC registration fee $ 4,952
Printing and engraving $ 1,000
Accountants' fees and expenses $ 1,000
Legal fees $10,000
Miscellaneous $ 4,048
Total $20,000
Item 15. Indemnification of Directors and Officers
Article VI of WaveRider's By-Laws provides that: "Every Director,
officer, employee and agent of the Company, and every person serving at the
Company's request as a director, officer (or in a position functionally
equivalent to that of officer or director), employee or agent of another
corporation, partnership, joint venture, trust or other entity, shall be
indemnified to the extent and in the manner provided by the Company's Charter,
as it may be amended, and in the absence of any such provision therein, in
accordance with Nevada law."
WaveRider's Charter contains no provisions regarding the
indemnification of directors and officers.
Section 78.7502 of Nevada General Corporation Law ("Nevada Corporation
Law") provides, that:
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner in which he reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstance of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
Section 78.751 of Nevada Corporation Law provides, that: Any
discretionary indemnification under Section 78.7502, unless ordered by a court
or advanced pursuant to subsection 2, may be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal counsel in a
written opinion.
The indemnification and advancement of expenses authorized or ordered
by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to Section 78.7502 or for
the advancement of expenses made pursuant to subsection 2, may not be made to or
on behalf of any director or officer if a final adjudication establishes that
his acts or omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
In accordance with the provisions of Section 78.752 of Nevada
Corporation Law, WaveRider purchased and maintains insurance coverage on certain
liabilities of its directors and officers.
Item 16. Exhibits
Exhibit No. Description
3.1 Articles of Incorporation of WaveRider, incorporated by reference to
Exhibit 3.1 registration statement on Form S-18, File no. 33-25889-LA.
3.2 Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the
annual report on Form 10-KSB for the year ended December 31, 1996.
3.3 Certificate of Amendment to the Articles of Incorporation of the Company
filed with the Nevada Secretary of State on October 8th, 1993,
incorporated by reference to Exhibit 3.3 to the quarterly report on Form
10-QSB for the period ended September 30th, 1994.
3.4 Certificate of Amendment to the Articles of Incorporation of the Company
filed with the Nevada Secretary of State on October 25th, 1993,
incorporated by reference to Exhibit 2(d) to the registration statement on
Form 8-A, File No. 0-25680.
3.5 Certificate of Amendment to the Articles of Incorporation of WaveRider
filed with the Nevada Secretary of State on March 25th, 1995, incorporated
by reference to Exhibit 2(e) to registration statement on Form 8-A, File
no. 0-25680.
3.6 Certificate of Amendment to the Articles of Incorporation of the Company,
designating the Series A Voting Convertible Preferred Stock, filed with
the Nevada Secretary of State on March 24th, 1997, incorporated by
reference to Exhibit 3.6 on Form 10KSB for the year ended December 31,
1996.
3.7 Certificate of Amendment to the Articles of Incorporation of the Company
designating the Series B Voting Convertible Preferred Stock, filed with
the Nevada Secretary of State on May 16, 1997.
3.8 Certificate of Amendment to the Memorandum of WaveRider changing the name
to WaveRider Communications Inc., filed with the Nevada Secretary of State
on May 27, 1997.
4.1 Specimen common stock certificate, incorporated by reference to Exhibit
4.1 to registration statement on Form S-18, File no. 33-25889-LA.
4.2 Specimen Class A Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.2 on Form 10KSB for the year ended December 31,
1996.
4.3 Specimen Class B Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.3 on Form
10KSB for the year ended December 31, 1996.
4.4 Specimen Class C Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.4 on Form 10KSB for the year ended December 31,
1996.
4.5 Specimen Class D Common Stock Purchase Warrant Certificate, incorporated
by reference to Exhibit 4.5 on Form 10KSB for the year ended December 31,
1996.
4.6 Warrant Terms dated February 10th, 1997, relating to the Class A, Class B,
Class C and Class D, Common Stock Purchase Warrants, incorporated by
reference to Exhibit 4.6 on Form 10KSB for the year ended December 31,
1996.
4.7 Warrant Terms dated April 15, 1998, relating to the Class E Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.7 on Form 10KSB
for the year ended December 31, 1998.
4.8 Warrant Terms dated June 11, 1998, relating to the Class F Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.8 on Form 10KSB
for the year ended December 31, 1998.
4.9 Warrant Terms dated December 15, 1998, relating to the Class G Common
Stock Purchase Warrants, incorporated by reference to Exhibit 4.9 on Form
10KSB for the year ended December 31, 1998.
4.10 Warrant Terms dated December 29, 1998, relating to the Common Stock
Purchase Warrants, incorporated by reference to Exhibit 4.10 on Form 10KSB
for the year ended December 31, 1998.
5.1 Opinion of Foley, Hoag & Eliot LLP.
10.1 Agreement dated February 2nd, 1997, between Ray Hoag and WaveRider,
incorporated by reference to Exhibit 10.2 on Form 10KSB for the year ended
December 31, 1996.
10.2 Agreement dated February 2nd, 1997, between C. Jeremy Renton and
WaveRider, incorporated by reference to Exhibit 10.21 on Form 10KSB for
the year ended December 31, 1996.
10.3 Stock Option Agreement dated January 22nd, 1997 between WaveRider and
Charlie Rodriguez, incorporated by reference to Exhibit 10.22 on Form
10KSB for the year ended December 31, 1996.
10.4 Stock Option Agreement dated January 22nd, 1997 between WaveRider and C.
Jeremy Renton, incorporated by reference to Exhibit 10.23 on Form 10KSB
for the year ended December 31, 1996.
10.5 Stock Option Agreement dated January 22nd, 1997, between WaveRider and Ray
Hoag, incorporated by reference to Exhibit 10.24 on Form 10KSB for the
year ended December 31, 1996.
10.6 Share Exchange Agreement executed the 13th day of May, 1997 between
WaveRider and the shareholders of Major Wireless Communications Inc.,
("Major Wireless"), with respect to the purchase by the Company of all the
issued and outstanding shares in the capital stock of Major Wireless,
incorporated by reference to Exhibit 2.1 in Form 8-K filed May 29, 1997.
10.7 Agreement supplemental to the Share Exchange Agreement executed the 13th
day of May, 1997 (see 10.6 supra) incorporated by reference to Exhibit
10.1 in Form 8-K filed May 29, 1997.
10.8 Employee Stock Compensation (1997) Plan incorporated by reference to
Exhibit 99 in Form S-8 filed August 29th, 1997.
10.9 Employee Stock Option (1997) Plan incorporated by reference to Exhibit 99
in Form S-8 filed August 29th, 1997.
10.10 Employment Agreement between WaveRider and D. Bruce Sinclair dated
November 18, 1997 incorporated as Exhibit 10.10 to WaveRider's annual
report on Form 10-KSB, for the year ended December 31, 1997.
10.11*Convertible Debenture Agreement between WaveRider and International
Advisory Services Ltd. And Wyndel Consulting Ltd. Dated December 15, 1998.
10.12*Letter of termination of the Convertible Debenture Agreement contained in
Exhibit 10.11, dated January 8, 1999.
10.13*Common Stock Purchase Agreement between WaveRider and Sovereign Partners
LP and Canadian Advantage Limited Partnership, dated December 31, 1998,
including the exhibits to such agreement.
23.2 Consent of Johnson, Holscher & Company P.C., independent auditors.
23.3 Consent of PricewaterhouseCoopers LLP, independent auditors
23.4 Consent of Foley, Hoag & Eliot LLP (included in last sentence of Exhibit
5.1).
24.1 Power of Attorney (contained in the signature page).
*Previously filed
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