U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
(Check One)
| ¨ | Registration statement pursuant to Section 12 of the Securities Exchange Act of 1934 |
or
| x | Annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 |
For the fiscal year ended December 31, 2011
| For the fiscal year ended December 31, 2012 | Commission file number: 001-35152 |
WI-LAN INC.
(Exact name of registrant as specified in its charter)
| Canada | 6794 | 98-0451743 | ||
(Province or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number (if applicable)) | (I.R.S. Employer Identification Number) |
11 Holland Avenue, Suite 608,
Ottawa, Ontario, Canada K1Y 4S1
(613) 688-4900
(Address and Telephone Number of Registrant’s Principal Executive Offices)
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, New York 10036.7703
Attention: Andrew J. Beck
(212) 880-6000
(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 | Name Of Exchange On Which Registered | |
| Common Shares | The NASDAQ Global Select Market |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
For annual reports, indicate by check mark the information filed with this Form:
| x Annual Information Form | x 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:121,540,562 common shares.
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.
Yes x 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 (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files).
Yes x No ¨
FORWARD-LOOKING STATEMENTS
All statements, other than statements of historical facts, included or incorporated by reference in this Annual Report regarding the strategy, future operations, financial position, future revenues, projected costs, prospects, plans and objectives of Wi-LAN Inc. (“WiLAN” or the “Company”) and its management are forward-looking statements. When used herein, the words “may”, “would”, “could”, “will”, “intend”, “plan”, “anticipate”, “believe”, “estimate”, “expect” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. WiLAN cannot guarantee that the Company will actually achieve the plans, intentions or expectations disclosed in any of these forward-looking statements or statements of “belief” and undue reliance should not be placed on any such forward-looking statements or statements of “belief”.
All forward-looking statements and statements of “belief” contained in this Annual Report are subject to known and unknown risks, uncertainties, assumptions and other factors outside of management’s control that could cause WiLAN’s actual results to differ materially from those indicated or implied by forward-looking statements or statements of “belief”, including the factors discussed under “Risk Factors” and in other sections of the Annual Information Form for the fiscal year ended December 31, 2012, which is filed as Exhibit 99.1 to this Annual Report. Those factors and the other cautionary statements made in that Annual Information Form should be read as being applicable to all related forward-looking statements and statements of “belief” wherever they appear or are incorporated by reference in this Annual Report.
Any forward-looking statements and statements of “belief” represent the Company’s estimates based on information available at the time only and should not be relied upon as representing WiLAN’s estimates as of any subsequent date. The Company’s forward-looking statements contained in the exhibits incorporated by reference into this Annual Report are made as of the respective dates set forth in such exhibits. In preparing this Annual Report, the Company has not updated such forward-looking statements to reflect any subsequent information, events or circumstances or otherwise, or any change in management’s beliefs, expectations or opinions that may have occurred prior to the date hereof. The Company assumes no responsibility for the accuracy and completeness of any forward-looking statements and statements of “belief” and, except as required by law, WiLAN does not assume any obligation to update any forward-looking statements or statements of “belief”. The Company disclaims any intention or obligation to update or revise any forward-looking statements or statements of “belief”, whether as a result of new information, future events or otherwise.
DISCLOSURE CONTROLS AND PROCEDURES
As of the end of the period covered by this Annual Report, an evaluation of the effectiveness of the Company’s disclosure controls and procedures (as defined in Rule 13a-15(e) and 15d-15(e)) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) was carried out by our management, under the supervision, and with the participation, of the Company’s Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”). Based upon that evaluation, the CEO and the CFO concluded that as of December 31, 2012, the Company’s disclosure controls and procedures were effective to ensure that information required to be disclosed by the Company in reports that it files or submits to the SEC under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC rules and forms and accumulated and communicated to the Company’s management, including its CEO and CFO, as appropriate, to allow for timely decisions regarding required disclosure.
While the CEO and CFO believe that the Company’s disclosure controls and procedures provide a reasonable level of assurance that they are effective, they do not expect that the Company’s disclosure controls and procedures will prevent all errors and fraud. Because of inherent limitations, a control system, no matter how well conceived or operated, can only provide reasonable, not absolute, assurance that the objectives of the control system are met.
MANAGEMENT’S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING AND
ATTESTATION REPORT OF THE REGISTERED PUBLIC ACCOUNTING FIRM
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is a process designed by, or under the supervision of, the CEO and the CFO to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP. Because of its inherent limitations, however, internal control over financial reporting may not prevent or detect misstatements on a timely basis.
Our management evaluated, under the supervision of the CEO and the CFO, the effectiveness of our internal control over financial reporting as at December 31, 2012. We based our evaluation on criteria established in “Internal Control over Financial Reporting – Guidance for Smaller Public Companies” issued by the Committee of Sponsoring Organizations of the Treadway Commission and, based on that evaluation, we have concluded that, as of December 31, 2012, our internal control over financial reporting is effective.
Auditors’ attestation report.
Management’s report was not subject to attestation by the Company’s independent registered public accounting firm pursuant to an exemption for emerging growth companies under the Jumpstart Our Business Startups Act.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
During the year ended December 31, 2012, no changes occurred in the Company’s internal control over financial reporting that materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.
NOTICES PURSUANT TO REGULATION BTR
Not applicable.
AUDIT COMMITTEE FINANCIAL EXPERT
The Company’s board of directors has determined that all of the members of the audit committee are “audit committee financial experts” as such term is defined in the General Instructions to the Form 40-F. Such members are John Gillberry; William Jenkins; and Richard Shorkey. All such persons are “independent”, as such term is defined under NASDAQ rules.
CODE OF ETHICS
The Company has adopted a Code of Business Conduct and Ethics which applies to all directors, officers and employees of the Company. Such code is available on the Company’s website at www.wilan.com.
All amendments to the Company’s Code of Business Conduct and Ethics, and all waivers of the Code with respect to any director, officer or employee of the Company, will be posted on the Company’s website.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table sets forth information on the fees billed by the Company’s external auditor, PricewaterhouseCoopers LLP, to the Company in thousands of Canadian dollars for each of the fiscal year ended December 31, 2011 and December 31, 2012.
External Auditor Service Fees(1)
| Fiscal Year 2012 | Fiscal Year 2011 | |||||||
Audit Fees(2) | $ | 281 | $ | 451 | ||||
Audit-Related Fees(3) | 47 | 43 | ||||||
Tax Fees(4) | 22 | 3 | ||||||
All Other Fees(5) | 7 | 6 | ||||||
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Total Fees Billed | $ | 357 | $ | 503 | ||||
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Notes:
(1) All amounts in thousands of Canadian dollars.
(2) “Audit Fees” consist of the aggregate fees of PricewaterhouseCoopers LLP (“PwC”), WiLAN’s auditors, for professional services rendered by them for the audit of the Company’s annual financial statements and review of the MD&A and related services that are normally provided by them in connection with statutory and regulatory filings or engagements. Fiscal 2012 fees billed by PwC for services provided by them relate to their review of WiLAN’s internal controls ($79). Fiscal 2011 fees billed by PwC for services provided by them relate to their review of WiLAN’s prospectus and other filings in connection with the January 2011 bought deal financing ($18), the NASDAQ listing in June 2011 ($167) and the MOSAID take-over bid launched in August 2011 ($158).
(3) “Audit-related Fees” consist of the aggregate fees billed by PwC for assurance and related services rendered by them that are reasonably related to the performance of the audit or review of WiLAN’s financial statements and are not reported as Audit Fees. Professional services provided include review and “selected procedures” of quarterly financial statements and accounting advice on certain matters.
(4) “Tax Fees” consist of the aggregate fees billed by PwC for professional services rendered by them for tax compliance, tax advice and tax planning. Tax services included advisory services and review and filing of the Company’s annual income tax returns. Fiscal 2012 fees billed by PwC for services provided by them relate to tax advice with respect to prior years’ tax filings. Fiscal 2011 fees billed by PwC for services provided by them related to tax advice with respect to prior years’ tax filings.
(5) “All Other Fees” consist of fees billed by PwC for products and services other than Audit Fees, Audit Related Fees and Tax Fees.
The Company’s audit committee approved all audit and non-audit services provided to the Company during the periods listed above.
The following describes WiLAN’s policy relating to the engagement of the external auditors for the provision of non-audit services. When requiring the use of accounting and taxation and other consulting services, the Company will not utilize the services of the current external auditor where the delivery of the service may create a potential or perceived conflict of interest. Consulting services which require subsequent external auditing cannot be performed by WiLAN’s auditors. For greater clarity, the following consulting services do not present a conflict of interest: advice relating to the accounting treatment of new accounting pronouncements or services ancillary to the audit; preparation of corporate tax returns; and advice on tax related matters.
Non-audit services to be provided by the external auditors must be pre-approved by the Company’s audit committee.
OFF-BALANCE SHEET ARRANGEMENTS
The Company does not have any off-balance sheet arrangements.
DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The following table lists as of December 31, 2012 information with respect to the Company’s known contractual obligations (stated in thousands of U.S. dollars).
| Payments due by Period | ||||||||||||||||||||
Contractual Obligations | Total | Less than 1 Year | 1-3 Years | 4-5 Years | After 5 Years | |||||||||||||||
Long term debt | $ | — | $ | — | $ | — | $ | — | $ | — | ||||||||||
Capital lease obligations | — | — | — | — | — | |||||||||||||||
Operating leases | 1,836 | 583 | 1,253 | |||||||||||||||||
Purchase obligations | — | — | — | — | — | |||||||||||||||
Other long term obligations | 20,429 | 6,858 | 12,939 | 632 | — | |||||||||||||||
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Total contractual obligations | $ | 22,265 | $ | 7,441 | $ | 14,192 | $ | 632 | $ | — | ||||||||||
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IDENTIFICATION OF THE AUDIT COMMITTEE
The Company has a separately designated standing audit committee established in accordance with section 3(a)(58) of the Exchange Act. Its members are John Gillberry, William Jenkins and Richard Shorkey (Chair).
NASDAQ CORPORATE GOVERNANCE
The Company is a foreign private issuer whose common shares are listed on the NASDAQ Global Select Market. NASDAQ Rule 5615(a)(3) permits a foreign private issuer to follow its home country practice in lieu of the shareholder quorum requirement under NASDAQ Rule 5620(c). The NASDAQ minimum quorum requirement under Rule 5620(c) for a shareholders meeting is 33 1/3% of the outstanding common shares. The Company’s bylaws currently provide that quorum for a shareholders meeting is met if at least two shareholders holding at least 10% of the Company’s outstanding common shares entitled to vote at the meeting are present (whether in person or represented by proxy).
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
The Company undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the staff of the SEC, and to furnish promptly, when requested to do so by the staff of the SEC, information relating to the securities registered pursuant to Form 40-F, the securities in relation to which the obligation to file an annual report on Form 40-F arises or transactions in said securities.
The Company has previously filed with the SEC an Appointment of Agent for Service of Process and Undertaking on Form F-X in connection with the class of securities in relation to which the obligation to file this report arises.
Any change to the name or address of the agent for service of the Company shall be communicated promptly to the SEC by amendment to Form F-X referencing the file number of the Company.
SIGNATURES
Pursuant to the requirements of the United States Securities Exchange Act of 1934, as amended, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereto duly authorized.
| WI-LAN INC. | ||
By: | /s/ Prashant R. Watchmaker | |
| Name: Prashant R. Watchmaker | ||
| Title: Vice-President, Corporate Legal & Corporate Secretary | ||
| Date: March 8, 2013 | ||
EXHIBIT INDEX
Exhibit | Description | |||
| 99.1 | Annual information form for the year ended December 31, 2012 | |||
| 99.2 | Management’s discussion and analysis of financial condition and results of operations for the twelve month period ended December 31, 2012 and the twelve month period ended December 31, 2011 | |||
| 99.3 | Audited annual financial statements for the twelve months ended December 31, 2012 and the twelve months ended December 31, 2011 | |||
| 99.4 | Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) or 15d-14 of the Exchange Act | |||
| 99.5 | Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) or 15d-14 of the Exchange Act | |||
| 99.6 | Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350 | |||
| 99.7 | Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350 | |||
| 99.8 | Consent of PricewaterhouseCoopers LLP | |||
| 101 | The following financial information from the Company’s audited annual financial statements for the twelve months ended December 31, 2012 and the twelve months ended December 31, 2011, formatted in XBRL (Extensible Business Reporting Language) and furnished electronically herewith: (1) Consolidated Statements of Operations and Deficit; (2) Consolidated Balance Sheets; (3) Consolidated Statements of Cash Flows; and (4) Notes to Consolidated Financial Statements | |||
