As filed with the Securities and Exchange Commission on August 11, 2004
Registration No. 333-115481
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 2 to
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
WaveRider Communications Inc.
(Exact name of registrant as specified in its charter)
Nevada 33-30264030
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
(416) 502-3200
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
-------------------
T. SCOTT WORTHINGTON
Vice President and Chief Financial Officer
WaveRider Communications Inc.
255 Consumers Road, Suite 500
Toronto, Ontario Canada M2J 1R4
Phone No.: (416) 502-3200 / Facsimile No.: (416) 502-2968
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------
Copies to:
DAVID A. BROADWIN, ESQ.
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
(617) 832-1000 / Facsimile No.: (617) 832-7000
-------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box.
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legal facsimile thereof, pursuant to Item 11(a)(1) of
this form, check the following box.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
-------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
WaveRider Communications Inc.
1,842,410 Shares of Common Stock
The selling stockholders are offering up to 1,842,410 shares of our
common stock consisting of:
1,190,913 shares of our common stock issuable upon conversion of
our outstanding convertible debentures in an aggregate
principal amount of $1,812,500 having an initial conversion
price of $2.175 per share that were sold in a private
placement transaction completed April 23, 2004;
248,424 shares of our common stock issuable upon conversion of our
outstanding convertible debentures in an aggregate principal
amount of $500,000 having an amended initial conversion price
of $2.175 per share that were sold in a private placement
transaction completed July 14, 2003; and
403,073 shares of our common stock issuable upon exercise of our
outstanding Series S common stock purchase warrants having an
exercise price of $2.076 per share that were sold in a private
placement transaction completed April 23, 2004.
The conversion price of any convertible debentures submitted for
conversion is subject to adjustment if the average closing price per share of
our common stock for the 20 consecutive trading days before a conversion date is
below $2.61 per share . In such a case, upon notice of conversion, we have the
option of issuing shares of our common stock or paying cash equal to 120% of the
principal amount being converted. The number of shares to be issued for the
convertible debentures sold on April 23, 2004 is based on a conversion price
equal to 93% of the average of the lowest three closing prices during such 20
day period. The number of shares to be issued for the convertible debentures
sold on July 14, 2003 is based on a conversion price equal to 95% of the average
of the lowest three closing prices during such 20 day period.
If the Series S common stock purchase warrants are exercised in their
entirety, we will receive proceeds of $557,853. Otherwise, we will not receive
any proceeds from the sale of our common stock by the selling stockholders.
Our common stock is traded over-the-counter on the OTC Electronic
Bulletin Board of the National Association of Securities Dealers, Inc. under the
symbol "WAVR.OB."
A copy of our annual report on Form 10-KSB for the year ended December
31, 2003, and a copy of our quarterly report on Form 10-QSB for the quarter
ended June 30, 2004, accompany this prospectus.
The mailing address, the telephone and facsimile numbers of our executive
offices is:
WaveRider Communications Inc.
255 Consumers Road, Suite 500
Toronto, Ontario, Canada M2J 1R4
Telephone No.: (416) 502-3200
Facsimile No.: (416) 502-2968
Investing in our common stock involves a high degree of risk. Please
consider carefully the Risk Factors beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or passed upon the
adequacy or accuracy of the prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is May 12, 2004.
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You should rely only on the information contained in this document,
incorporated by reference herein or to which we have referred you. We have not
authorized anyone to provide you with information that is different. This
document may be used only where it is legal to sell these securities. The
information in this document is accurate only as of the date of this document,
regardless of the time of the delivery of this prospectus or of any sale of our
common stock.
TABLE OF CONTENTS
Page
FORWARD-LOOKING STATEMENTS.....................................................2
SUMMARY .......................................................................3
RISK FACTORS...................................................................3
AVAILABLE INFORMATION..........................................................6
INCORPORATION BY REFERENCE.....................................................7
USE OF PROCEEDS................................................................7
SELLING SECURITY HOLDERS.......................................................7
PLAN OF DISTRIBUTION..........................................................10
DESCRIPTION OF SECURITIES TO BE REGISTERED....................................11
LEGAL MATTERS.................................................................13
EXPERTS ......................................................................13
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES............................................13
FINANCIAL STATEMENTS..........................................................13
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS..............................14
SIGNATURES....................................................................18
FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus, or incorporated by reference
into this prospectus, contains forward-looking statements that involve
substantial risks and uncertainties. Any statement in this prospectus that is
not a statement of an historical fact constitutes a "forward-looking statement".
Further, when we use the words "may", "expect", "anticipate", "plan", "believe",
"seek", "estimate", "internal", and similar words, we intend to identify
statements and expressions that may be forward-looking statements. We believe it
is important to communicate certain of our expectations to our investors.
Forward-looking statements are not guarantees of future performance. They
involve risks, uncertainties and assumptions that could cause our future results
to differ materially from those expressed in any forward-looking statements.
Many factors are beyond our ability to control or predict. You are accordingly
cautioned not to place undue reliance on such forward-looking statements. We
have no obligation or intent to update publicly any forward-looking statements
whether in response to new information, future events or otherwise.
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SUMMARY
The selling stockholders are offering up to 1,842,410 shares of our
common stock consisting of:
1,190,913 shares of our common stock issuable upon conversion of
our outstanding convertible debentures in an aggregate
principal amount of $1,812,500 having an initial conversion
price of $2.175 per share that were sold in a private
placement transaction completed April 23, 2004;
248,424 shares of our common stock issuable upon conversion of our
outstanding convertible debentures in an aggregate principal
amount of $500,000 having an amended initial conversion price
of $2.175 per share that were sold in a private placement
transaction completed July 14, 2003; and
403,073 shares of our common stock issuable upon exercise of our
outstanding Series S common stock purchase warrants having an
exercise price of $2.076 per share that were sold in a private
placement transaction completed April 23, 2004.
The conversion price of any convertible debentures submitted for
conversion is subject to adjustment if the average closing price per share of
our common stock for the 20 consecutive trading days before a conversion date is
below $2.61 per share . In such a case, upon notice of conversion, we have the
option of issuing shares of our common stock or paying cash equal to 120% of the
principal amount being converted. The number of shares to be issued for the
convertible debentures sold on April 23, 2004 is based on a conversion price
equal to 93% of the average of the lowest three closing prices during such 20
day period. The number of shares to be issued for the convertible debentures
sold on July 14, 2003 is based on a conversion price equal to 95% of the average
of the lowest three closing prices during such 20 day period.
RISK FACTORS
An investment in us involves a high degree of risk and common stock
should not be purchased by anyone who cannot afford the loss of their entire
investment. You should carefully consider all of the following risk factors
discussed below as well as other information in the prospectus before purchasing
the common stock. The risks described below are not all of the risks facing us.
Additional risks, including those that are currently not known to us or that we
currently deem immaterial, may also impair our business operations.
We have a history of losses, and our future profitability is uncertain.
Due to our limited operating history, we are subject to the uncertainties
and risks associated with any new business. We have experienced significant
operating losses every year since incorporation. We incurred a net loss of
$4,164,737 for the six months ended June 30, 2004 (2003 - $377,265) and reported
an accumulated deficit at that date of $92,427,036 (December 31, 2003 -
$88,262,299).
There can be no assurance that we will ever generate an overall profit
from our products or that we will ever reach profitability on a sustained basis.
Competition in the data communication industry is intense, and there is
uncertainty that, given our new technology and limited resources, that we will
be able to succeed.
Although our products are based on a wireless technology, we compete not
only against companies that base their products on wireless technology, but also
against companies that base their products on hard-wired technology (wire or
fiber optic cable). There can be no assurance that we will be able to compete
successfully in the future against existing or new competitors or that our
operating results will not be adversely affected by increased price competition.
Competition is based on the design and quality of the products, product
performance, price and service, with the relative importance of such factors
varying among products and markets. Competition in the various markets we serve
comes from companies of various sizes many of which are larger and have greater
financial and other resources than we do and, thus, can withstand adverse
economic or market conditions better than we can.
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Our future operating results are subject to a number of risks, including
our ability or inability to implement our strategic plan, to attract qualified
personnel and to raise sufficient financing as required. Inability of our
management to guide growth effectively, including implementing appropriate
systems, procedures and controls, could have a material adverse effect on our
business, financial condition and operating results.
The data communication industry is in a state of rapid technological change, and
we may not be able to keep up.
We may be unable to keep up with technological advances in the data
communications industry. As a result, our products may become obsolete or
unattractive. The data communications industry is characterized by rapid
technological change. In addition to frequent improvements of existing
technology, there is frequent introduction of new technologies leading to more
complex and powerful products. Keeping up with these changes requires
significant management, technological and financial resources. As a small
company, we do not have the management, technological and financial resources
that larger companies in our industry may have. There can be no assurance that
we will be able or successful in enhancing our existing products, or in
developing, manufacturing and marketing new products. An inability to do so
would adversely affect our business, financial condition and results of
operations.
We have limited intellectual property protection, and there is risk that our
competitors will be able to appropriate our technology.
Our ability to compete depends to a significant extent on our ability to
protect our intellectual property and to operate without infringing the
intellectual property rights of others. We regard our technology as proprietary.
We have pending patent applications but we do not have any issued patents, nor
do we have any registered copyrights with respect to our intellectual property
rights. We rely on employee and third party non-disclosure agreements and on the
legal principles restricting the unauthorized disclosure and use of trade
secrets. Despite our precautions, it might be possible for a third party to copy
or otherwise obtain our technology, and use it without authorization. Although
we intend to defend our intellectual property, we cannot assure you that the
steps we have taken or that we may take in the future will be sufficient to
prevent misappropriation or unauthorized use of our technology. In addition,
there can be no assurance that foreign intellectual property laws will protect
our intellectual property rights. There is no assurance that patent application
or copyright registration that have been or may be filed will be granted, or
that any issued patent or copyrights will not be challenged, invalidated or
circumvented. There is no assurance that the rights granted under patents that
may be issued or copyrights that may be registered will provide sufficient
protection to our intellectual property rights. Moreover, we cannot assure you
that our competitors will not independently develop technologies similar, or
even superior, to our technology.
Use of our products is subordinated to other uses, and there is risk that our
customers may have to limit or discontinue the use of our products.
License-free operation of our products in certain radio frequency bands
is subordinated to certain licensed and unlicensed uses of these bands. This
subordination means that our products must not cause harmful interference to
other equipment operating in the band, and must accept potential interference
from any of such other equipment. If our equipment is unable to operate without
any such harmful interference, or is unable to accept interference caused by
others, our customers could be required to cease operations in some or all of
these bands in the locations affected by the harmful interference. As well, in
the event these bands become unacceptably crowded, and no additional frequencies
are allocated to unlicensed use, our business could be adversely affected.
Currently, our products are designed to operate in frequency bands for
which licenses are not required in the United States, Canada and other countries
that we view as our potential market. Extensive regulation of the data
communications industry by U.S. or foreign governments and, in particular,
imposing license requirements in the frequency bands of our products could
materially and adversely affect us through the effect on our customers and
potential customers. Continued license-free operation will depend upon the
continuation of existing U.S., Canadian and such other countries' government
policies and, while no planned policy changes have been announced or are
expected, this cannot be assured.
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We may be subject to product liability claims and we lack product liability
insurance.
We face an inherent risk of exposure to product liability claims in the
event that the products designed and sold by us contain errors, "bugs" or
defects. There can be no assurance that we will avoid significant product
liability exposure. We do not currently have product liability insurance and
there can be no assurance that insurance coverage will be available in the
future on commercially reasonable terms, or at all. Further, there can be no
assurance that such insurance, if obtained, would be adequate to cover potential
product liability claims, or that a loss of insurance coverage or the assertion
of a product liability claim or claims would not materially adversely affect our
business, financial condition and results of operations.
We depend upon third party manufacturers and there is risk that, if these
suppliers become unavailable for any reason, we may for an unknown period of
time have no product to sell.
We depend upon a limited number of third party manufacturers to make our
products. If our suppliers are not able to manufacture for us for any reason, we
would, for an unknown period of time, have difficulty finding alternate sources
of supply. Inability to obtain manufacturing capacity would have a material
adverse effect on our business, financial condition and results of operations.
We may suffer dilution if we issue substantial shares of our common stock:
o upon conversion of convertible debentures; and
o upon exercise of the outstanding warrants and options.
We are obligated to issue a substantial number of shares of common stock
upon the conversion of our convertible debentures and exercise of our
outstanding warrants and options. The price, which we may receive for the shares
of common stock, that are issuable upon conversion or exercise of such
securities, may be less than the market price of the common stock at the time of
such conversions or exercise. Should a significant number of these securities be
exercised or converted, the resulting increase in the amount of the common stock
in the public market could have a substantial dilutive effect on our outstanding
common stock.
The conversion and exercise of all of the aforementioned securities or
the issuance of new shares of common stock may also adversely affect the terms
under which we could obtain additional equity capital.
Our common stock now trades on the less well recognized Over the Counter
Bulletin Board, which could limit liquidity.
As a result of our common stock being delisted from the Nasdaq National
Market in April of 2002, we have a less liquid market for our common stock than
had existed. As a result, our shares may be more difficult to sell because
potentially smaller quantities of shares could be bought and sold, transactions
could be delayed and security analyst and news coverage of our company may be
reduced. These factors could result in lower prices and larger spreads in the
bids and ask prices for our shares.
Our common stock is subject to the penny stock rules which means our market
liquidity could be adversely affected.
The SEC's regulations define a "penny stock" to be an equity security
that has a market price less than $5.00 per share, subject to certain
exceptions. These rules impose additional sales practice requirements on broker
dealers that sell low-priced securities to persons other than established
customers and institutional accredited investors; and require the delivery of a
disclosure schedule explaining the nature and risks of the penny stock market.
As a result, the ability or willingness of broker-dealers to sell or make a
market in our common stock might decline.
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No dividends anticipated.
We intend to retain any future earnings to fund the operation and
expansion of our business. We do not anticipate paying cash dividends on our
shares in the foreseeable future.
RECENT DEVELOPMENTS
1. On July 1, 2004, a one for ten consolidation of our common stock became
effective pursuant to shareholder approval given on September 4, 2003. All
common stock information presented herein has been restated to reflect the
consolidation.
2. This summary highlights selected information regarding the reorganization of
WaveRider as a Canadian corporation. A preliminary joint proxy
statement-prospectus which is part of a Form F-4 registration statement is being
filed with the Securities and Exchange Commission. It contains further
information about this transaction. This filing is a public document available
on the SEC's web site at www.sec.gov. We urge you to obtain and read carefully
the most current version of the Form F-4 before making an investment decision.
We are seeking stockholder approval at an annual meeting to be held on
September 27, 2004 of a merger transaction that will result in WaveRider's
corporate reorganization as a Canadian corporate entity. We refer to the merger
and related steps as the "reorganization". The reorganization will result in our
stockholders owing common shares of a Canadian corporation rather than common
stock of a Nevada corporation. The number of shares that our stockholders own
will not change as a result of the reorganization.
After the reorganization, our stockholders will own an interest in
Waverider Communications (Canada), Inc. ("WCAN"), a Canadian corporation, which
will be managed by the same board of directors and officers that currently
manage WaveRider. WCAN and its subsidiaries will continue to engage in the same
business conducted by WaveRider and its subsidiaries prior to the
reorganization, and will have the same assets and employees as WaveRider and its
subsidiaries.
The reorganization contains certain important changes to the rights of
our stockholders and is not without some risk. Completion of the reorganization,
which is currently anticipated to occur in the third quarter of 2004, is subject
to a number of conditions, including stockholder approval, and certain other
customary conditions. We cannot assure you that the reorganization will be
consummated, or if it is consummated, when it will be consummated and what the
value of shares of common stock will be following the transaction.
AVAILABLE INFORMATION
We are a public company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission. Copies of the reports, proxy statements and other information may be
read and copied at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You can request copies of such documents by writing to
the SEC and paying a fee for the copying cost. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The
SEC maintains a web site at (http://www.sec.gov) that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the SEC.
This prospectus is part of a Registration Statement on Form S-2 that we
filed with the SEC. Certain information in the Registration Statement has been
omitted from this prospectus in accordance with the rules and regulations of the
SEC. We have also filed exhibits and schedules with the Registration Statement
that are excluded from this prospectus. For further information you may:
o read a copy of the Registration Statement, including the exhibits and
schedules, without charge at the SEC's Public Reference Room; or
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o obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
INCORPORATION BY REFERENCE
The Securities and Exchange Commission allows us to incorporate be
reference certain of our publicly filed documents into this prospectus, which
means that information included in those documents is considered part of this
prospectus. We incorporate by reference into this prospectus:
o Our annual report on Form 10-KSB for the fiscal year ended December 31,
2003;
o Our quarterly report on Form 10-QSB for the quarter ended March 31,
2004;
o Our quarterly report on Form 10-QSB for the quarter ended June 30,2004;
o Our current report on Form 8-K filed with the Securities and Exchange
Commission on March 8, 2004;
o Our current report on Form 8-K filed with the Securities and Exchange
Commission on April 8, 2004;
o Our current report on Form 8-K filed with the Securities and Exchange
Commission on April 26, 2004;
o Our current report on Form 8-K filed with the Securities and Exchange
Commission on April 29, 2004; and
o Our current report on Form 8-K filed with the Securities and Exchange
Commission on July 29, 2004.
Upon a written or oral request, we will provide to you, at no cost, a
copy of any or all of such documents incorporated by reference, other than
exhibits to such documents unless the exhibits are specifically incorporated by
reference in those documents. You should direct any requests for documents to T.
Scott Worthington, Vice President and Chief Financial Officer, WaveRider
Communications Inc., 255 Consumers Road, Suite 500, Toronto, Ontario, Canada M2J
1R4, Facsimile No. (416) 502-2968 and Telephone No. (416) 502-3200.
USE OF PROCEEDS
We received proceeds of $2,000,000, less transaction and other costs,
from the sale of convertible debentures in the aggregate principal amount of
$2,125,000. Included in the transaction costs were an allowance for legal fees
of $10,000 paid to Crescent International Ltd. and administrative fees of
$60,000 paid to GreenLight (Switzerland) SA. The net proceeds of this offering
will be used for general working capital purposes.
The shares of common stock offered by this prospectus are being offered
by the selling stockholders. We will not receive any additional proceeds from
the sale of shares by the selling stockholders except that we may receive
proceeds of up to $557,853 if the Series S common stock purchase warrants are
exercised in their entirety. For information about the selling stockholders, see
"Selling Stockholders."
The costs associated with this offering, other than the transaction
costs, are approximately $30,000.
SELLING SECURITY HOLDERS
Palisades Master Fund L.P. and Crescent International Ltd., each a
selling stockholder, may acquire the shares of our common stock being registered
for resale by Palisades Master Fund L.P. and Crescent International Ltd.,
respectively, by the registration statement, of which this prospectus is a part:
o upon conversion of outstanding convertible debentures in the
aggregate principal amount of $1,812,500 that were sold in a
private placement transaction completed April 23, 2004;
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o upon conversion of outstanding convertible debentures in the
aggregate principal amount of $500,000 that were sold in a
private placement transaction completed July 14, 2003; and
o upon exercise of outstanding Series S common stock purchase
warrants having an exercise price of $2.076 per share to
purchase 268,715 shares of our common stock in connection with
the private placement transaction completed on April 23, 2004.
We are required to register for resale 150% of the securities issuable
upon conversion of the convertible debentures and exercise of the Series S
common stock purchase warrants. We will be required to amend this registration
statement, of which this prospectus is a part, at any time if the remaining
number of shares of common stock issuable upon conversion of the convertible
debentures and exercise of the Series S common stock purchase warrants exceeds
85% of the number of common stock registered by this registration statement, of
which this prospectus is a part.
On February 10, 2004, Crescent International Ltd., DMI Trust and
GreenLight (Switzerland) S.A. filed Amendment no. 3 to its Form 13G disclosing
that its principal investment manager, GreenLight (Switzerland) S.A., has voting
and investment control over our securities held by Crescent International Ltd.
and DMI Trust owns 100% of the capital stock of Crescent International Ltd. Each
of GreenLight (Switzerland) S.A. and DMI Trust may be deemed to be the
beneficial owners of our common stock held by Crescent International Ltd.
Palisades Master Fund L.P. has informed us that its investment advisor,
PEF Advisors, LLC, has voting and investment control over our securities held by
Palisades Master Fund L.P.
We have agreed to file a registration statement, of which this prospectus
is a part, to register the shares of the selling stockholders described above in
order to permit the selling stockholders to sell these shares from time to time
in the public market or in privately-negotiated transactions.
We will not receive any portion of the proceeds from the sale of shares
of common stock by the selling stockholders.
Based on the information supplied to us by each selling stockholder, the
following table sets forth certain information regarding the approximate number
of shares owned by each selling stockholder as of May 4, 2004, and as adjusted
to reflect the sale by the selling stockholders of the shares of common stock
offered by this prospectus.
Selling Stockholders
Shares Beneficially Owned Shares Beneficially Owned
Prior to Offering (1) Number of After Offering(1)(2)
------------------------ Shares ------------------------
Name Number Percent(3) Offered Number Percent(3)
- ------------------------------ ------------ --------- ------------ -------- ---------
Crescent International Ltd. (4) 1,671,643 (5) 9.99% 1,182,719 (6) 488,924 2.9%
Palisades Master Fund L.P. (7) 791,830 (8) 4.99% 659,691 (9) 132,139 *
- -----------------------------
* Less than one percent.
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Except as indicated, each
person possesses sole voting and investment power with respect to all of
the shares of common stock owned by such person, subject to community
property laws where applicable. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to options and convertible securities held
by that person that are currently exercisable, or become exercisable within
60 days of the date of this prospectus are deemed outstanding. Such shares,
however, are not deemed outstanding for the purpose of computing the
percentage ownership of any other person. The information as to each person
has been furnished by such person.
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(2) Assumes that all shares of common stock offered in this prospectus will be
sold.
(3) Based on approximately 15,044,788 shares of common stock issued and
outstanding as of August 9, 2004, plus, for each person, such number of
shares of common stock subject to options and convertible securities held
by such person that are currently exercisable, or become exercisable within
60 days of the date of this table; provided that Crescent International
Ltd. is prohibited from converting their debentures until their beneficial
ownership is below 9.999% or exercising their Series S warrants until their
beneficial ownership is below 4.999% and Palisades Master Fund L.P. is
prohibited from converting or exercising any security until their
beneficial ownership is below 4.999%.
(4) In accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, GreenLight (Switzerland) S.A. and DMI Trust may be deemed to be
beneficial owners of the shares of our common stock held by Crescent
International Ltd.
(5) Includes 793,104 shares of common stock issuable upon conversion of
convertible debentures purchased on July 14, 2003 and registered on Form
S-2, registration number 333-107885 and common stock purchase warrants to
purchase 157,783 shares of our common stock that are exercisable within 60
days of August 9, 2004.
(6) The shares of our common stock being offered on behalf of Crescent
International Ltd. consist of 799,937 shares of our common stock upon
conversion of the convertible debentures sold on April 23, 2004, 248,424
shares of our common stock upon conversion of the convertible debentures
sold on July 14, 2003, as a result of the reset of the conversion price in
connection with the April 23, 2004 transaction, and 134,358 shares of our
common stock upon exercise of the Series S common stock purchase warrants
that are convertible and exercisable within 60 days of August 9, 2004.
(7) In accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, PEF Advisors, LLC may be deemed to be beneficial owners of the
shares of our common stock held by Palisades Master Fund L.P.
(8) Includes common stock purchase warrants to purchase 31,847 shares of our
common stock that are exercisable within 60 days of August 9, 2004.
(9) The shares of our common stock being offered on behalf of Palisades Master
Fund L.P. consist of 525,333 shares of our common stock upon conversion of
the convertible debentures and 134,358 shares of our common stock upon
exercise of the Series S common stock purchase warrants that are
convertible and exercisable within 60 days of August 9, 2004.
The selling stockholders and we are not making any representation that
any shares covered by the prospectus will or will not be offered for sale or
resale. The selling stockholders reserve the right to accept or reject, in whole
or in part, any proposed sale of shares. The shares offered by this prospectus
may be offered from time to time by the selling stockholders named above.
Maximum Number of Shares Issuable to Crescent International Ltd. and Palisades
Master Fund L.P.
The maximum number of shares of our common stock we may issue to
Crescent International Ltd. or Palisades Master Fund L.P., respectively,
pursuant to our agreements with them is dependant in part on the market price
for our common stock. Under the terms of our securities purchase agreement with
Crescent International Ltd. and Palisades Master Fund L.P., the number of shares
to be obtained by each of Crescent International Ltd. and Palisades Master Fund
L.P., respectively, upon exercise of warrants cannot exceed the number of shares
that, when all other shares of common stock and securities then owned by each of
them, would result in Crescent International Ltd. or Palisades Master Fund L.P.
owning more than 9.999% or 4.999%, respectively, and upon conversion of the
debentures cannot exceed the number of shares that, when combined with all other
shares of common stock and securities then owned by each of them, would result
in Crescent International Ltd. or Palisades Master Fund L.P., owning more than
4.999%, respectively, of our outstanding common stock at any given point in
time.
Prior Relationships Between Selling Stockholders and Us
We are not aware of any material relationship between us and any of the
selling stockholders within the past three years other than as a result of the
ownership of the stockholders' shares, and in particular, Crescent International
Ltd. purchased shares of our Series D convertible preferred stock in June 2001
and each of Crescent International Ltd. and Palisades Master Fund L.P. purchased
convertible debentures and received Series R common stock purchase warrants in
July 2003. We paid GreenLight (Switzerland) S.A. an arrangement fee in
connection with this transaction, the transaction with Crescent International
Ltd. and Palisades Master Fund L.P. in July 2003, and the sale of Series D
convertible preferred stock to Crescent International Ltd. in June 2001.
9
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the applicable
exchange;
o privately negotiated transactions;
o broker-dealers may agree with the selling stockholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; or
o any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended, if available, rather than under this
prospectus. Broker-dealers engaged by the selling stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholder may from time to time pledge or grant a security
interest in some or all of the convertible debentures or common stock or
warrants owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the shares of
common stock from time to time under this prospectus, or under an amendment to
this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act of 1933 amending the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
The selling stockholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any profit
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933. The selling
stockholders have informed us that none of them have any agreement or
understanding, directly or indirectly, with any person to distribute the common
stock.
10
We are required to pay all fees and expenses incurred by us incident to
the registration of the shares of common stock. We have agreed to indemnify the
selling stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act of 1933.
DESCRIPTION OF SECURITIES
Under our articles of incorporation, our authorized capital stock
consists of 400,000,000 shares of common stock, $0.001 par value per share, and
5,000,000 shares of preferred stock, $0.01 par value per share.
On July 1, 2004, a one for ten consolidation of our common stock became
effective pursuant to shareholder approval given on September 4, 2003. All
common stock information presented herein has been restated to reflect the
consolidation.
Common Stock
As of August 9, 2004, 15,044,788 shares of our common stock were issued
and outstanding. All outstanding shares of our common stock are duly authorized,
validly issued, fully-paid and non-assessable. Please refer to the description
of our common stock contained in the registration statement on Form 8-A filed
with the SEC on March 18, 1995, including any amendments or reports filed for
the purpose of updating that section which is incorporated by reference into
this prospectus.
Each holder of our common stock has equal ratable rights to dividends
from funds legally available therefore, if, as and when declared by our board of
directors. The declaration and payment of all dividends, however, is subject to
the discretion of our board of directors. In the event of liquidation,
dissolution or winding up of our affairs, the holders of our common stock rank
junior to the holders, if any, of our Series C and Series D preferred stock.
Holders of our common stock are entitled to one vote per share on all matters
which stockholders may vote on at all meetings of stockholders. The holders of
our common stock do not have cumulative voting rights. The holders of our common
stock do not have preemptive, subscription or conversion rights and there are no
redemption or sinking fund provisions applicable thereto.
Convertible Debentures
We issued convertible debentures on July 14, 2003 in the aggregate
principal amount of $1,600,000, of which $500,000 is currently outstanding, and
on April 23, 2004 in the aggregate principal amount of $2,125,000, of which
$1,812,500 is currently outstanding. The initial conversion price of the
debentures issued on July 14, 2003 was $4.318 and was reset to the current
conversion price of $2.175 on April 23, 2004. The initial conversion price of
the debentures issued on April 23, 2004 is $2.175 per share. However, the reset
and initial conversion price of these convertible debentures are subject to
adjustment if the average closing price per share of our common stock for the 20
consecutive trading days before a conversion date is below $2.61 per share. In
such a case, upon notice of conversion, we have the option of issuing shares of
our common stock or paying cash equal to 120% of the principal amount being
converted based on a conversion price equal to 95%, for debentures issued on
July 14, 2003, or 93%, for debentures issued on April 23, 2004, of the average
of the lowest three closing prices during such 20 day period. If we choose to
pay cash, the conversion price of the convertible debentures will not be
adjusted.
We have the right, at our discretion, to redeem the entire principal
amount of the debenture outstanding at a cash price equal to 120% of the
principal amount outstanding. We may only exercise this redemption right if:
o we have provided 10 trading days prior written notice to the holders of
the outstanding convertible debentures;
o the closing bid price of our common stock has been greater than $4.35
per share for the 20 trading days before we give notice to exercise
this right;
o we have honored all conversions;
11
o there is an effective registration statement pursuant to which the
holders of the convertible debentures and Series S common stock
purchase warrants are able to resell their shares of common stock
issuable upon conversion and exercise;
o our common stock is listed on the OTC Bulletin Board or another trading
exchange or market;
o all liquidated damages and other amounts owing in respect of the
debentures have been paid or will be paid in cash;
o we have a sufficient number of authorized but unissued shares of our
common stock to issue upon conversion of the convertible debentures and
exercise of the Series S common stock purchase warrants; and
o we are not in default under the convertible debentures.
Series S Common Stock Purchase Warrants
We issued Series S common stock purchase warrants to purchase an
aggregate of 268,715 shares of common stock with an exercise price of $2.076 per
share to Crescent International Ltd. and Palisades Master Fund L.P. The warrants
are exercisable for a period of five (5) years.
The warrants contain provisions that protect holders against dilution by
adjustment of the exercise price in certain events such as stock dividends and
distributions, stock splits, recapitalizations, mergers, consolidations, and
issuances of common stock below $2.076 per share. We will not be required to
issue fractional shares upon the exercise of any warrant. The holder of a
warrant will not possess any rights as a stockholder until the holder exercises
the warrant.
Anti-takeover effect of Nevada law
As a Nevada corporation, we are subject to the General Corporation Law of
the State of Nevada, including Section 78.438. In general, Section 78.438
restricts the ability of a public Nevada corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder.
An interested stockholder includes any person who is the beneficial
owner, directly or indirectly, of at least 10% of the voting power of the
outstanding voting shares or is an affiliate or associate of the corporation and
at any time within three years immediately before the date in question was the
beneficial owner, directly or indirectly, of at least 10% of the voting power of
the then outstanding shares. An interested stockholder may engage in a
combination with the corporation if the board of directors approves the
combination or the purchase of shares made by the interested stockholder on or
before the date the interested stockholder acquired the shares.
Since our articles of incorporation do not contain a provision expressly
electing not to be governed by Section 78.438, it applies to us. As a result,
potential acquirors may be discouraged from attempting to acquire us. This may
have the effect of depriving our stockholders of acquisition opportunities to
sell or otherwise dispose of our stock at above-market prices typical of such
acquisitions.
We are also subject to Sections 78.378 and 78.379 of the Nevada General
Corporation Law. Generally, these sections prohibit any acquisition of a
controlling interest in an issuing corporation unless the acquiror obtains the
approval of the issuing corporation's stockholders. This statute only applies to
a Nevada corporation with at least 200 stockholders of record, at least 100 of
whom are Nevada residents, and does business directly or indirectly in Nevada.
Currently, we do not believe that we do business in Nevada within the meaning of
this statute; however, as the market for our product expands, we may do business
in Nevada.
A "controlling interest" is an interest that enables the acquiring
person, directly or indirectly and individually or in association with others,
to exercise: at least one-fifth but less than one-third, or at least one-third
but less than a majority, or a majority or more, of all the voting power of the
corporation in the election of directors. Once the acquiror crosses one of these
thresholds, the shares acquired during the 90 days preceding this date are
"control shares" which are deprived of the right to vote until a majority of the
voting power of the corporation restore the right.
12
A special stockholders' meeting may be called at the request of an
acquiror to consider the voting rights of the acquiror's shares no more than 50
days (unless the acquiror agrees in writing to a later date) after the delivery
by the acquiror to the corporation of an information statement which sets forth
the range of voting power that the acquiror has acquired or proposes to acquire
and certain other information concerning the acquiror and the proposed control
share acquisition. If no such request for a stockholders' meeting is made,
consideration of the voting rights of the acquiror's shares must be taken at the
next special or annual stockholders' meeting. If the stockholders fail to
restore voting rights to the acquiror, or if the acquiror fails to timely
deliver an information statement to the corporation, then the corporation may,
if so provided in its articles of incorporation or by-laws, call certain of the
acquiror's shares for redemption.
Our articles of incorporation and by-laws do not currently permit us to
call an acquiror's shares for redemption under these circumstances. This statute
also provides that, if the stockholders restore full voting rights to a holder
of control shares which owns a majority of the voting stock, then all other
stockholders who do not vote in favor of restoring voting rights to the control
shares may demand payment of the "fair value" of their shares, which is a value
not less than the highest price per share paid by the acquiring person in an
acquisition.
The provisions described above, together with the ability of the board of
directors to issue preferred stock may have the effect of delaying or deterring
a change in control of our company or a change in our management.
LEGAL MATTERS
Foley Hoag LLP of 155 Seaport Boulevard, Boston, Massachusetts 02210 has
advised us about the legality and validity of the shares. We know of no members
of Foley Hoag who are beneficial owners of our common stock or preferred stock.
EXPERTS
Wolf & Company, P.C., independent auditors, have audited our financial
statements included in our Annual Report on Form 10-KSB for the years ended
December 31, 2003 and December 31, 2002, as set forth in its report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements are incorporated by reference in reliance on
Wolf & Company's report, given on its authority as experts in accounting and
auditing.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Our articles of incorporation and by-laws provide that we may indemnify
our 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 of 1933 may be permitted to directors, officers and controlling persons of
the small business issuer pursuant to the foregoing provisions, or otherwise,
the small business issuer has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
FINANCIAL STATEMENTS
A copy of our annual report on Form 10-KSB for the year ended December
31, 2003, and a copy of our quarterly report on Form 10-QSB for the quarter
ended June 30, 2004, accompany this prospectus.
13
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14: Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses in connection with
the sale of the shares being registered hereby:
SEC registration fee $382
Printing and engraving N/A
Accountants' fees and expenses * $3,000
Legal fees * $26,000
Miscellaneous * $618
----
Total * $30,000
------------------
*Indicates estimate
Item 15: Indemnification of Directors and Officers
Article VI of our 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."
Section 78.7502 of Nevada General Corporation Law ("Nevada Corporation
Law") and Article Ninth of our articles of incorporation provide 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.
14
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 above, 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.
Article Ninth of our articles of incorporation provide that any
indemnification pursuant to subsections 1 and 2 above (unless ordered by a
court) will be paid by us unless a determination is made:
o by a disinterested majority of our board of director who were not
parties to such action, suit or proceeding; or
o if such disinterested majority of our board of directors so directs or
cannot be obtained, by independent legal counsel in a written opinion;
or
o by our stockholders, that indemnification of the director or officer is
not proper in the circumstances because he has not met the applicable
standard of conduct set forth in subsections 1 and 2 above.
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 above, 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:
o By the stockholders;
o By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding;
o 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
o 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.
However, pursuant to article ninth of our articles of incorporation, we
are not obligated to provide indemnification:
o To indemnify or advance expenses to any person with respect to
proceedings brought to establish or enforce a right to indemnification
under our articles of incorporation or any other statue or law or
otherwise as required under Nevada Corporation Law, but such
indemnification or advancement of expenses may be provided by us in
specific cases if our board of directors find it appropriate;
o To indemnify any person for any expenses incurred by him or her with
respect to any proceeding instituted by him or her to enforce or
interpret our articles of incorporation, if a court of competent
jurisdiction determines that each of the material assertions made by
him or her in such proceeding was not made in good faith or was
frivolous;
o To indemnify any person for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties, and amounts paid in settlement) which have
been paid directly to him or her by an insurance carrier under a policy
of our officers' and directors' liability insurance; or
o To indemnify any person for expenses or the payment of profits arising
from the purchase and sale by him or her of securities in violation of
Section 16(b) of the Securities Exchange act of 1934, as amended, or
any similar or successor statute.
15
Furthermore, article ninth of our articles of incorporation prohibit us
from indemnifying any person who is adjudged liable for:
o Brach of duty to us or our stockholders that resulted in personal
enrichment to which he was not legally entitled;
o Intentional fraud or dishonesty or illegal conduct; or
o For any other cause prohibited by applicable state or federal law,
unless a court determines otherwise.
Nevada Corporation Law and article ninth of articles of incorporation
provide that the indemnification and advancement of expenses authorized or
ordered by a court pursuant to this section:
o 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 by-law, 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 above, 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.
o 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 and Article Ninth of our articles of incorporation, we purchased and
maintain insurance coverage on certain liabilities of its directors and
officers.
Item 16: Exhibits
Number Description
4.1 * Form of Convertible Debenture dated April 23, 2004
4.2 * Form of Series S Common Stock Purchase Warrant dated April
23, 2004
5.1 Legal Opinion of Foley Hoag LLP
10.1 * Securities Purchase Agreement dated April 23, 2004, between
WaveRider Communications Inc.,
Crescent International Ltd. and Palisades Master Fund L.P.
10.2 * Registration Rights Agreement dated April 23, 2004, between
WaveRider Communications Inc.,
Crescent International Ltd. and Palisades Master Fund L.P.
13.1 ** Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2003
13.2 *** Quarterly Report on Form 10-QSB for the quarter ended June
30, 2004
23.1 Consent of Wolf & Company, P.C.
23.4 Consent of Foley Hoag LLP (included in Exhibit 5.1)
24.1 **** Power of Attorney
- ----------------------
* Incorporated herein by reference from the Current Report on Form 8-K
filed with the Securities and Exchange Commission on April 26, 2004.
** Filed with the Securities and Exchange Commission on March 8, 2004 and
incorporated herein by reference.
16
*** Filed with the Securities and Exchange Commission on July 29, 2004 and
incorporated herein by reference.
**** Previously filed.
Item 17: Undertakings
The undersigned Registrant hereby undertakes:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) Include any additional or changed material information on
the Plan of Distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Toronto, Ontario, Canada, on August 9, 2004.
WAVERIDER COMMUNICATIONS INC.
By: /s/ D. Bruce Sinclair
----------------------
D. Bruce Sinclair
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------------------- ----------------------------------------- --------------
/s/ D. Bruce Sinclair Chief Executive Officer and Director August 9, 2004
- ---------------------
D. Bruce Sinclair
/s/ T. Scott Worthington Vice President , Chief Financial Officer, August 9, 2004
- ------------------------ Chief Accounting Officer and Secretary
T. Scott Worthington
* Director August 9, 2004
- ------------------
Gerry Chastelet
* Director August 9, 2004
- ------------------
John Curry
* Director August 9, 2004
- ------------------
Michael J. Milligan
* Director August 9, 2004
- ------------------
Cameron Mingay
* Director August 9, 2004
- ------------------
Dennis R. Wing
18
* By /s/ D. Bruce Sinclair,
-----------------------------------
D. Bruce Sinclair, Attorney-in-fact
19
EXHIBIT INDEX
Number Description
4.1 * Form of Convertible Debenture dated April 23, 2004
4.2 * Form of Series S Common Stock Purchase Warrant dated April
23, 2004
5.1 Legal Opinion of Foley Hoag LLP
10.1 * Securities Purchase Agreement dated April 23, 2004, between
WaveRider Communications Inc.,
Crescent International Ltd. and Palisades Master Fund L.P.
10.2 * Registration Rights Agreement dated April 23, 2004, between
WaveRider Communications Inc.,
Crescent International Ltd. and Palisades Master Fund L.P.
13.1 ** Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2003
13.2 *** Quarterly Report on From 10-QSB for the quarter ended March
31, 2004
23.1 Consent of Wolf & Company, P.C.
23.4 Consent of Foley Hoag LLP (included in Exhibit 5.1)
24.1 **** Power of Attorney
- ----------------------
* Incorporated herein by reference from the Current Report on Form 8-K
filed with the Securities and Exchange Commission on April 26, 2004.
** Filed with the Securities and Exchange Commission on March 8, 2004 and
incorporated herein by reference. *** Filed with the Securities and
Exchange Commission on May 4, 2004 and incorporated herein by
reference.
**** Previously filed.
20