EXHIBIT 99.2
SCHEDULE "A"
TERMS OF OFFERING
This is Schedule "A" to the subscription agreement (the "Agreement") relating to
the purchase of promissory notes and warrants of WaveRiver Communications Inc.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Agreement.
1) Offering. The Notes and Warrants subscribed for hereunder form part of
an offering (the "Offering") of up to 1,000 Units.
2) Definitions. In the Agreement and the schedules to the Agreement, the
defined terms set out in the first page of the Agreement shall apply
and, unless the context otherwise requires:
(a) "Agent" means Xxxxxxx X. Xxxxx, acting as agent for the
benefit of the Purchasers under the Security Documents;
(b) "Business Day" means any day except Saturday, Sunday or a
statutory holiday in Toronto, Ontario;
(c) "Claim" means any claim of any nature whatsoever including any
demand, cause of action, suit or proceeding;
(d) "Closing Date" means on or about October 5, 2001 or such other
date as the Purchaser and the Company may agree;
(e) "Closing Time" means 10:00 a.m. (Toronto time) on the Closing
Date or such other time on the Closing Date as the Purchaser
and the Company may agree;
(f) "General Security Agreements" means the general security
agreements entered into between the Guarantor and the Agent
and the Company and the Agent;
(g) "Guarantee Agreement" means the guarantee agreement entered
into between the Guarantor and the Agent;
(h) "Guarantor" means WaveRider Communications (Canada) Inc.;
(i) "Holders" means the Purchasers and all other Persons from time
to time holding any of the Notes;
(j) "Loss" means any loss whatsoever, whether direct or indirect,
including expenses, costs, damages, judgments, penalties,
awards, assessments, fines and all fees, disbursements and
expenses of counsel, experts and consultants;
(k) "Person" means an individual, corporation, partnership,
unincorporated association, unincorporated syndicate,
unincorporated organization, trust, trustee, executor,
administrator, or other legal representative;
(l) "Purchasers" means those persons who subscribe for the Units
under the Offering;
(m) "Qualifying Provinces" means the provinces of Ontario and
British Columbia and "Qualifying Province" means, as the
context requires, any one of the Qualifying Provinces;
(n) "Required Holders" means, at any time, Holders which are then
in compliance with their obligations hereunder (as determined
by the Agent) and holding Notes representing more than 50% of
the aggregate outstanding principal amount of all outstanding
Notes;
(o) "Securities Laws" means the securities laws, regulations and
rules, and the blanket rulings and policies and written
interpretations of, and multi-level or national instruments
adopted by, the Securities Regulators of all of the Qualifying
Provinces or, as the context may require, any one or more of
the Qualifying Provinces;
(p) "Securities Regulators" means the securities commissions or
other securities regulatory authorities of all of the
Qualifying Provinces or the relevant Qualifying Province as
the context so requires;
(q) "Security Documents" means the Guarantee Agreement and the
General Security Agreements;
(r) "U.S. Person" means a U.S. Person as that term is defined in
Regulation S; under the Securities Act of 1933, as amended, of
the United States of America; and
(s) "U.S. Securities Act" means the United States Securities Act
of 1933, as amended.
3) Terms of the Notes and Warrants.
(a) Notes. The terms and conditions of the Notes are set out in
the form of Note attached as Schedule "E" to this Agreement.
(b) Warrants. The terms and conditions of the Warrants are set out
in the form of Warrant attached as Schedule "F" to this
Agreement.
4) Acceptance by the Company of Offer to Purchase. The acceptance by the
Company of the Purchaser's irrevocable subscription to purchase the
Notes and Warrants as contemplated by this Agreement shall constitute
an agreement by the Company with the Purchaser that the Purchaser shall
have, in respect of such Notes and Warrants, the benefits of the
representations, warranties and covenants of the Company contained in
the Agreement.
5) Covenants of the Company. The Company hereby covenants and agrees to
use its reasonable best efforts to promptly comply with all filing and
other requirements under the Securities Laws.
6) Closing of Purchase. The Purchaser acknowledges and agrees that closing
of the Offering will be completed at the Closing Time at such location
as the Purchaser and the Company may agree.
7) Payment and Delivery. Subscription proceeds shall be delivered to the
Company by certified cheque payable to Owen, Bird, Barristers and
Solicitors, in trust, or to the Company directly.
8) Resale Restrictions. The Purchaser understands and acknowledges that
the Notes, Warrants and Common Shares underlying the Warrants will be
subject to resale restrictions under the Securities Laws and the U.S.
Securities Act and the Purchaser agrees to comply with such
restrictions. The Purchaser further understands and acknowledges that
the Company is not currently a "reporting issuer" under the Securities
Laws and that Canadian resident holders of securities of the Company
may not be able to sell such securities for an indefinite period of
time. The Purchaser also acknowledges that it has been advised to
consult its own legal advisors with respect to applicable resale
restrictions and that it is solely responsible for complying with such
restrictions (and the Company is not in any manner responsible for
ensuring compliance by the Purchaser with such restrictions).
(a) Since the Notes and Warrants are not registered under the U.S.
Securities Act or applicable state securities laws, and since
the Purchaser has no right to require that the Notes and
Warrants be so registered, the Purchaser acknowledges and
agrees that he shall have no right at any time to sell,
assign, pledge, transfer, or otherwise dispose of or encumber
the Notes and Warrants (except by will or by the laws of
descent and distribution) unless the Company shall first have
been provided with an opinion of counsel acceptable to the
Company that such sale is exempt from such registration under
the U.S. Securities Act and any applicable state securities
laws.
9. Restrictive Legends. The Purchaser acknowledges that each certificate
representing the Notes, Warrants and Common Shares underlying the
Warrants will bear restrictive legends which may refer to the Agreement
and to the restrictions on transfer referred to in Paragraph 8.
10. Piggy-Back Registration Rights for Warrants. Following the completion
of the Offering, the next time the Company shall determine to proceed
with the preparation and filing of a registration statement under the
U.S. Securities Act, the Company shall give prompt written notice of
such determination to the Purchasers and shall use its reasonable
commercial efforts to cause the Common Shares issuable upon exercise of
the Warrants held by the Purchasers to be included in such registration
statement.
11. Reliance. The Purchaser acknowledges that the Company and its officers,
directors, employees, and agents are relying on the truth and accuracy
of the representations and warranties set out in the attached Schedule
"B" in the offering of Notes and Warrants for sale to the Purchaser
without having first registered the Notes or the Warrants under the
U.S. Securities Act. All representations, warranties, and covenants
contained in the Agreement shall survive the acceptance of the
Agreement and the sale of Notes and Warrants. Notwithstanding the
foregoing, however, no representation, warranty, acknowledgment, or
agreement made herein by the Purchaser shall in any manner be deemed to
constitute a waiver of any rights granted to him under federal or state
securities laws.
12. Consent to Use of Information. The Purchaser hereby consents to the
utilization by the Company, as necessary in connection with dealings
with any governmental and regulatory authorities, of any information
supplied to the Company by the Purchaser or by his representatives in
connection with the offer and sale of the Notes and Warrants, and
agrees to supply any additional information reasonably requested by any
such authority.
13. Modification. Neither the Agreement nor any provision hereof shall be
modified, changed, discharged or terminated except by an instrument in
writing signed by the parties.
14. Costs. The Company acknowledges and agrees that all reasonable legal
and out of pocket expenses incurred by the Purchaser relating to the
sale of the Notes and Warrants to the Purchaser shall be borne by the
Company.
15. Notice to Purchaser. Correspondence and notices to the Purchaser should
be sent to the address set out in the second page of the Agreement
until such time as the Purchaser shall notify the Company, in writing,
of a different address to which such correspondence and notices are to
be sent.
16. Miscellaneous. The agreement resulting from the acceptance of the
Agreement by the Company contains the whole agreement between the
Company and the Purchaser in respect of the subject matter hereof and
there are no warranties, representations, terms, conditions or
collateral agreements, express, implied or statutory, other than as
expressly set forth herein and in any amendments hereto. All
representations, warranties, agreements and covenants made or deemed to
be made by the Purchaser herein will survive the execution and
delivery, and acceptance, of the Agreement and the closing of the
Offering. The terms and provisions of the Agreement shall be binding
upon and enure to the benefit of the Purchaser, the Company and their
respective heirs, executors, administrators, successors and assigns,
provided that the Agreement shall not be assignable by any party
without the prior written consent of the others. The Agreement is
intended to and shall take effect on the Closing Date, notwithstanding
its actual date of execution or delivery by any of its parties. Time
shall be of the essence of the Agreement. The Agreement and the rights
and obligations of the parties hereunder will be governed by and
construed according to the laws of the Province of Ontario and the laws
of Canada applicable therein. The Agreement may be executed in any
number of counterparts, each of which when delivered, either in
original or facsimile form, shall be deemed to be an original and all
of which together shall constitute one and the same document.
