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As filed with the Securities and Exchange Commission on May 11, 2012
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM 40-F
o REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
OR
ý ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended February 29, 2012
Commission file number: 001-34491
| DRAGONWAVE INC. (Exact Name of Registrant as Specified in its Charter) | ||||
Canada (Province or other jurisdiction of incorporation or organization) | 4812 (Primary Standard Industrial Classification Code) | Not Applicable (I.R.S. Employer Identification No.) | ||
411 Legget Drive, Suite 600, Ottawa, Ontario, Canada, K2K 3C9
(613) 599-9991
(Address and Telephone Number of Registrant's Principal Executive Offices)
Copies to:
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, Delaware, 19808
(800) 927-9800
(Name, address (including zip code) and telephone number
(including area code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of Each Class: Common Shares, no par value | Name of Each Exchange On Which Registered: The NASDAQ Stock Market LLC Toronto Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act: N/A
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: N/A
For annual reports, indicate by check mark the information filed with this form:
| ý Annual Information Form | o Audited Annual Financial Statements |
Indicate the number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of the period covered by the annual report: As at February 29, 2012, 35,586,206 common shares of the Registrant were issued and outstanding.
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.ý Yeso No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).ý Yeso No
DragonWave Inc. ("we", "us", "our", the "Company" or the "Registrant") is a Canadian issuer eligible to file its annual report pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, on Form 40-F pursuant to the multi-jurisdictional disclosure system of the Exchange Act. We are a "foreign private issuer" as defined in Rule 3b-4 under the Exchange Act. Our equity securities are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3.
The Registrant is filing this Amendment No. 1 (this "Amendment") to the Registrant's Annual Report on Form 40-F dated May 3, 2012 (as amended hereby, the "Form 40-F") for the sole purpose of submitting its Annual Information Form for the year ended February 29, 2012 and Form 52-109F1 Certificates of Annual Filings, filed as Exhibit 99.4 and Exhibits 99.5 and 99.6, respectively. No other changes have been made to the Form 40-F. This Amendment speaks as of the original time of filing the Form 40-F and does not modify or update in any way disclosures made in the Form 40-F except as expressly set forth herein.
The Form 40-F shall be incorporated by reference into the Registrant's Form S-8, SEC File No. 333-167806, filed on June 25, 2010.
The Form 40-F and the documents incorporated herein by reference, contain forward-looking statements and forward-looking information within the meaning of applicable securities laws. Such forward-looking statements or forward-looking information include, but are not limited to statements with respect to strategic plans and corporate goals and objectives.
Forward-looking statements, which involve assumptions and describe the future plans, strategies and expectations of the Company, are generally identifiable by use of the words "may", "will", "should", "continue", "expect", "anticipate", "estimate", "believe", "intend", "plan" or "project" or the negative of these words or other variations on these words or comparable terminology. Forward-looking statements include, without limitation, statements regarding strategic plans, and corporate goals and objectives. There can be no assurance that forward-looking statements will prove to be accurate and actual results such as the goals and objectives of the Company's compensation programs for executives and directors, performance, achievements or developments and future events could differ materially from those expressed or implied in such statements. The following are some of the important risk factors relating to DragonWave and its business that could cause actual results, performance, achievements or developments to differ materially from those discussed in the forward-looking statements:
- •
- ability to successfully complete and integrate acquisitions of products or businesses, including the proposed acquisition of Nokia Siemens Networks, into our existing product lines and businesses and other risks associated with acquisitions;
- •
- dependence on the development and growth of the market for high-capacity wireless communications services;
- •
- reliance on a small number of customers for a large percentage of revenue;
- •
- intense competition from several competitors;
- •
- competition from indirect competitors;
- •
- dependence on the ability to develop new products and enhance existing products;
- •
- ability to successfully manage growth;
- •
- a history of losses;
- •
- dependence on establishing and maintaining relationships with channel partners;
- •
- quarterly revenue and operating results which are difficult to predict and can fluctuate substantially;
- •
- impact that the recent general economic downturn may still be having on customers;
- •
- disruption resulting from economic and geopolitical uncertainty;
- •
- currency fluctuations;
- •
- exposure to credit risk for accounts receivable;
- •
- pressure on DragonWave's pricing models;
- •
- the allocation of radio spectrum and regulatory approvals for DragonWave's products;
- •
- the ability of DragonWave's customers to secure a license for applicable radio spectrum;
- •
- changes in government regulation or industry standards that may limit the potential market for DragonWave's products;
- •
- risks associated with the possible loss of DragonWave's foreign private issuer status;
- •
- risks and expenses associated with DragonWave's status as a public company;
- •
- reliance on outsourced manufacturing;
- •
- reliance on suppliers of components;
- •
- ability to protect its own intellectual property and potential harm to DragonWave's business if it infringes the intellectual property rights of others;
- •
- risks associated with software licensed by DragonWave;
- •
- a lengthy and variable sales cycle;
- •
- dependence on DragonWave's ability to recruit and retain management and other qualified personnel;
- •
- exposure to risks resulting from its international sales and operations, including the requirement to comply with export control and economic sanctions laws; and
- •
- product defects, product liability claims, or health and safety risks relating to wireless products.
The risks and uncertainties related to the risk factors listed above, and the materializing of such risk and uncertainties, may be materially increased by the completion of the anticipated acquisition by us of the microwave transport business of Nokia Siemens Networks. In particular, material risks and uncertainties following and contingent upon closing of the acquisition will include, without limitation:
- •
- reliance on Nokia Siemens Networks for a large percentage of our revenues;
- •
- increased cash requirements to fund acquired operations, and associated requirements to comply with debt financing covenants with our lenders, which should be understood in light of our history of losses noted above;
- •
- increased exposure to global currency fluctuations;
- •
- increased regulatory compliance obligations, including financial reporting obligations associated with completing a significant acquisition; and
- •
- risks associated with acquisitions generally as detailed on in our most recently filed Annual Information Form, or AIF.
Although we have attempted to identify factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements and forward-looking information, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. Forward-looking statements and forward-looking information are based upon management's beliefs, estimates and opinions at the time they are made and we undertake no obligation to update forward-looking statements and forward-looking information if these beliefs, estimates and opinions or circumstances should change, except as required by applicable law. There can be no assurance that forward-looking statements and forward-looking information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements and information. Accordingly, readers should not place undue reliance on forward-looking statements and forward-looking information.
The list above is not exhaustive of the factors that may affect our forward-looking statements and forward-looking information. Some of the important risks and uncertainties that could affect forward-looking statements and forward-looking information are described further in the exhibits attached to the Form 40-F. In light of these risks, uncertainties and assumptions, the forward looking events discussed in this annual report on Form 40-F and the documents incorporated herein by reference, including, without limitation, our published financial guidance, may not occur.
Our AIF for the fiscal year ended February 29, 2012 is filed as Exhibit 99.4 and incorporated by reference in the Form 40-F.
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Amendment No. 1 to Form 40-F to be signed on its behalf by the undersigned, thereto duly authorized.
| DRAGONWAVE INC. | ||||
By: | /s/ RUSSELL FREDERICK | |||
| Name: | Russell Frederick | |||
| Title: | Chief Financial Officer | |||
Date: May 11, 2012
| | | | | Incorporated by Reference | ||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Exhibit No | Exhibit Title | Filed Herewith | Previously Filed | Form | Exhibit No. | File No. | Filing Date | |||||||||||||
| 23.1 | Consent of Independent Registered Public Accounting Firm of Ernst & Young LLP dated May 2, 2012 | X | ||||||||||||||||||
| 31.1 | Certification of Principal Executive Officer required by Rule 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated May 11, 2012 | X | ||||||||||||||||||
| 31.2 | Certification of Principal Financial Officer required by Rules 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, dated May 11, 2012 | X | ||||||||||||||||||
| 32.1 | Certification of Chief Executive Officer pursuant to 18 USC. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated May 11, 2012 | X | ||||||||||||||||||
| 32.2 | Certification of Chief Financial Officer pursuant to 18 USC. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated May 11, 2012 | X | ||||||||||||||||||
| 99.1 | Audited consolidated financial statements and notes thereto for the years ended February 29, 2012 and February 28, 2011 | X | ||||||||||||||||||
| 99.2 | Management's Discussion and Analysis for the year ended February 29, 2012 | X | ||||||||||||||||||
| 99.3 | Press Release dated May 3, 2012 — DragonWave Announces Financial Results for Fourth Quarter and Full Fiscal Year 2012 | X | ||||||||||||||||||
| 99.4 | Annual Information Form for the year ended February 29, 2012 | X | ||||||||||||||||||
| 99.5 | Form 52-109F1 Certificate of Annual Filings (Chief Executive Officer) | X | ||||||||||||||||||
| 99.6 | Form 52-109F1 Certificate of Annual Filings (Chief Financial Officer) | X | ||||||||||||||||||
| 101 | Interactive Data File | X | ||||||||||||||||||
EXPLANATORY NOTE
INCORPORATION BY REFERENCE
FORWARD-LOOKING STATEMENTS
ANNUAL INFORMATION FORM
SIGNATURES
EXHIBIT INDEX