As filed with the Securities and Exchange Commission on August 20, 2004.
Registration Statement #333-118224
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Pre-Effective Amendment No. 1
to
FORM F-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WAVERIDER COMMUNICATIONS (CANADA) INC.
(Exact name of registrant as specified in its charter)
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BRITISH COLUMBIA, CANADA 4813 [NOT APPLICABLE]
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification
Number)
255 Consumers Road
Suite 500
Toronto, Ontario M2J 1R4
(416) 502-3200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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T. Scott Worthington
Vice President Finance and Chief Financial Officer
and Corporate Secretary
255 Consumers Road
Suite 500
Toronto, Ontario M2J 1R4
(416) 502-3200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
David A. Broadwin, Esq. Cameron A. Mingay, Esq.
Foley Hoag LLP Cassels Brock & Blackwell LLP
155 Seaport Boulevard 2100 Scotia Plaza
Boston, Massachusetts 40 King Street West
USA 02210 Toronto, Ontario
Telephone No. (617) 832-1000 Canada M5H 3C2
Facsimile No. (617) 832-7000 Telephone No. (416) 860-6615
Facsimile No. (416) 640-3163
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective and the
satisfaction of all other conditions to the merger of WaveRider Communications
Inc., a Nevada corporation ("WaveRider"), with a Nevada corporation to be
incorporated that will be a wholly-owned subsidiary of a Canadian corporation
named "WaveRider Communications (Canada) Inc." ("WCAN") pursuant to a proposed
Agreement and Plan of Merger in the form attached as Annex A to the joint proxy
statement/prospectus contained herein.
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
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,
check the following box. [X]
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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 COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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Explanatory Note
This Amendment No. 1 is being filed to include the consents required pursuant to
Rule 438 promulgated under the Securities Act of 1933.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(A) The registrant's Articles provide that the registrant will indemnify
directors, officers, former directors or officers of the registrant, and the
registrant may also indemnify other individuals who have acted at the
registrant's request as a director or officer or in a similar capacity (any of
the foregoing being referred to as an "eligible party"), of another company,
against all costs, charges and expenses, including an amount paid to settle or
satisfy a judgment, penalty or fine, reasonably incurred by such individual in
respect of any legal proceeding or investigative action in which the individual
is involved because of that association with the registrant or such other
company, to the greatest extent permitted by the Business Corporations Act
(British Columbia) (the "BCBCA").
As provided in the BCBCA, the registrant may not indemnify an individual
identified above if any of the following circumstances apply:
a) if the indemnity or payment is made under an earlier agreement to
indemnify or pay expenses and, at the ( time that the agreement to
indemnify or pay expenses was made, the registrant was prohibited
from giving the indemnity or paying the expenses by its memorandum
or articles;
b) if the indemnity or payment is made otherwise than under an earlier
agreement to indemnify or pay ( expenses and, at the time that the
indemnity or payment is made, the registrant is prohibited from
giving the indemnify or paying the expenses by its constating
document;
c) if, in relation to the subject matter of the proceeding eligible for
indemnification, the eligible party (did not act honestly and in
good faith with a view to the best interests of the registrant or
the associated corporation, as the case may be;
d) in the case of a proceeding eligible for indemnification, other than
a civil proceeding, if the eligible ( party did not have reasonable
grounds for believing that the eligible party's conduct in respect
of which the proceeding was brought was lawful.
On the application of the registrant or an eligible party, the court may
do one or more of the following:
a) order the registrant to indemnify an eligible party against any
liability incurred by the eligible party ( in respect of an eligible
proceeding;
b) order the registrant to pay some or all of the expenses incurred by
an eligible party in respect of an ( eligible proceeding;
c) order the enforcement of, or any payment under, an agreement of
indemnification entered into by the ( registrant;
d) order the registrant to pay some or all of the expenses actually and
reasonably incurred by any person ( in obtaining an order under this
section;
(e) make any other order the court considers appropriate.
The foregoing summary is necessarily subject to the complete text of the
registrant's Articles and it is qualified in its entirety by reference thereto.
(B) The registrant may enter from time to time into indemnity agreements
with each of its directors and officers or other persons to supplement the
indemnification protection available under the registrant's articles referred to
above.
Part II - 1
(C) A British Columbia corporation also has the power to purchase and
maintain insurance for its directors and officers. The directors and officers of
the registrant are covered by an insurance policy indemnifying them against
certain liabilities, including certain liabilities arising under the Securities
Act of 1933, which might be incurred by them in such capacities and against
which they might not be indemnified by the registrant. The registrant is also
covered by an insurance policy indemnifying it against certain liabilities it
may incur on its own behalf and in respect of its obligations to indemnify its
directors and officers, as noted above.
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 issuer pursuant to the foregoing provisions, or otherwise, the
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. (See "ITEM 22. UNDERTAKINGS).
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
2.1 Form of Agreement and Plan of Merger among WaveRider, Inc.,
WaveRider Communications (Canada) Inc. and WaveRider
Acquisition Company (included as Annex A to the
joint proxy statement/prospectus that constitutes part of
this registration statement)*
3.1 Notice of Articles of WaveRider Communications (Canada) Inc.*
3.2 Articles of WaveRider Communications (Canada) Inc.*
4.1 Form of specimen certificate representing common shares of
WaveRider Communications (Canada) Inc.
5.1 Opinion of Dumoulin Black, regarding the legality of
securities to be issued by WaveRider Communications
(Canada) Inc.*
8.1 Opinion of Cassels Brock & Blackwell LLP, regarding certain
Canadian tax matters*
8.2 Opinion of Foley Hoag LLP, regarding certain U.S. tax matters*
10.1 Share Incentive Plan of WaveRider Communications (Canada) Inc.
(included in Annex A to the joint proxy statement/prospectus
that constitutes part of this registration statement)*
23.1 Consent of Wolf & Company, P.C.*
23.2 Consent of PriceWaterhouseCoopers LLP*
23.3 Consent of Cassels Brock & Blackwell LLP
(included in Exhibit 8.1)*
23.4 Consent of Foley Hoag LLP (included in Exhibit 8.2)*
23.5 Consent of Dumoulin Black (included in Exhibit 5.1)*
Part II - 2
99.1 Proxy card for use in connection with the Stockholders'
Meeting of WaveRider Communications Inc.*
99.2 Consent of John E. Curry filed pursuant to Rule 438
99.3 Consent of Michael J. Milligan filed pursuant to Rule 438
99.4 Consent of Cameron A. Mingay filed pursuant to Rule 438
99.5 Consent of D. Bruce Sinclair filed pursuant to Rule 438
99.6 Consent of Dennis R. Wing filed pursuant to Rule 438
99.7 Consent of Gerry Chastelet filed pursuant to Rule 438
- ------------------
* Previously filed.
(b) Financial Statement Schedules.
Not applicable.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
i. To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
ii. To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
iii. To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
B. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
D. To file a post-effective amendment to the registration statement to
include any financial statements required by Item 8.A. of Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided that the
registrant includes in the prospectus, by means of a post-effective
amendment, financial statements required pursuant to this paragraph
(a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of
those financial statements.
Part II - 3
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant 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. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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Part II - 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Toronto, Province of
Ontario, Canada, on August 20, 2004.
WaveRider Communications (Canada) Inc.
By: /s/ D. Bruce Sinclair
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Chief Executive Officer
By: /s/ Gerry Chastelet
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Authorized Representative in the United States
Each person whose signature appears below appoints Bruce Sinclair, Gerry
Chastelet and Scott Worthington, and each of them, each of whom may act without
the joinder of the other, as his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully and for all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that such attorneys-in-fact and agents or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons as of August 20,
2004 in the capacities indicated.
SIGNATURE TITLE
/s/ D. Bruce Sinclair Director, Chief Executive Officer
- ------------------------ (principal executive officer)
D. Bruce Sinclair
/s/ T. Scott Worthington Director, Vice President and
- ------------------------ Chief Financial Officer
T. Scott Worthington and Corporate Secretary (principal financial and
accounting officer)
Part II - 5
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
[GRAPHIC OMITTED][GRAPHIC OMITTED]
2.1 Form of Agreement and Plan of Merger among WaveRider, Inc.,
WaveRider Communications (Canada) Inc. and WaveRider
Acquisition Company (included as Annex A to the
joint proxy statement/prospectus that constitutes part of
this registration statement)*
3.1 Notice of Articles of WaveRider Communications (Canada) Inc.*
3.2 Articles of WaveRider Communications (Canada) Inc.*
4.1 Form of specimen certificate representing common shares of
WaveRider Communications (Canada) Inc.
5.1 Opinion of Dumoulin Black, regarding the legality of
securities to be issued by WaveRider Communications
(Canada) Inc.*
8.1 Opinion of Cassels Brock & Blackwell LLP, regarding certain
Canadian tax matters*
8.2 Opinion of Foley Hoag LLP, regarding certain U.S. tax matters*
10.1 Share Incentive Plan of WaveRider Communications (Canada) Inc.
(included in Annex A to the joint proxy statement/prospectus
that constitutes part of this registration statement)*
23.1 Consent of Wolf & Company, P.C.*
23.2 Consent of PriceWaterhouseCoopers LLP*
23.3 Consent of Cassels Brock & Blackwell LLP
(included in Exhibit 8.1)*
23.4 Consent of Foley Hoag LLP (included in Exhibit 8.2)*
23.5 Consent of Dumoulin Black (included in Exhibit 5.1)*
99.1 Proxy card for use in connection with the Stockholders'
Meeting of WaveRider Communications Inc.*
Part II - 6
99.2 Consent of John E. Curry filed pursuant to Rule 438
99.3 Consent of Michael J. Milligan filed pursuant to Rule 438
99.4 Consent of Cameron A. Mingay filed pursuant to Rule 438
99.5 Consent of D. Bruce Sinclair filed pursuant to Rule 438
99.6 Consent of Dennis R. Wing filed pursuant to Rule 438
99.7 Consent of Gerry Chastelet filed pursuant to Rule 438
- ------------------
* Previously filed.
Part II - 7