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Solicitation Agent Agreement

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WAVERIDER COMMUNICATIONS, INC.


SOLICITATION AGENT AGREEMENT


October 31, 2001


Gruntal & Co., L.L.C. 1 Liberty Plaza New York, NY 10006


Ladies and Gentlemen:


This Solicitation agent Agreement (the "Agreement") sets forth our agreement relating to (a) the proposed rights offering (the "Rights Offering") to be undertaken by WaveRider Communications, Inc., a Nevada corporation (the "Company"), pursuant to which the Company will distribute to holders of record of shares of its common stock, par value $.001 per share (the "Common Shares") as of October 19, 2001 (the "Record Date"), rights (the "Rights") to purchase units (the "Units"). Each Right will permit, until its expiration on the thirtieth day after distribution (as such date may be extended by 30 days at the discretion of the Company) (the "Expiration Date"), the right to purchase for $.40 per Unit in cash (a) one (1) Common Share and (b) one (1) warrant (the "Warrants") which (i) entitles the holder to purchase one (1) Common Share at an exercise price of $.50 per share in cash; (ii) becomes exercisable on the business date immediately following the Expiration Date and remains exercisable for a period of three (3) years thereafter unless earlier redeemed by the Company at a price of $.01 per Warrant; (iii) can be redeemed by the Company, in whole or in part, on not less than 30 days' prior written notice if for any period of thirty (30) consecutive trading days the last reported sales price of the Company's common stock for each trading day during such period is at least 300% of the then current exercise price; and (iv) may be exercised until the close of business on the day immediately preceding the date fixed for redemption by such notice.


1. THE OFFERING. The Company proposes to undertake the Rights Offering pursuant to which each holder of Common Shares shall receive one Right for each Common Share held of record at 5:00 p.m., New York time, on the Record Date. Holders of Rights will be entitled to subscribe for and purchase, one Unit for each Right held (the "Basic Subscription Privilege"). Any holder of record of Common Shares who fully exercises all Rights issued to him is entitled to subscribe for Units which were not otherwise subscribed for by others pursuant to their Basic Subscription Privileges (the "Over-Subscription Privilege"). Units acquired pursuant to the Over-Subscription Privilege are subject to allotment, as more fully discussed in the Prospectus (as defined in Section 6(a)).


2. APPOINTMENT AS SOLICITATION AGENT. The Company hereby appoints Gruntal & Co., L.L.C. as the Solicitation Agent (the "Solicitation Agent") and authorizes the Solicitation Agent to act as such in connection with the Rights Offering. As Solicitation Agent, Gruntal & Co., L.L.C. agrees, in accordance with its customary practice, to use its best efforts to solicit the exercise of Rights pursuant to the Rights Offering.


3. AUTHORITY TO APPOINT CO-SOLICITATION AGENTS. The Company hereby agrees that the Solicitation Agent shall have authority, but shall be under no obligation, to appoint one or more co-solicitation Agent (each a "Co-Solicitation Agent," and, together with the Solicitation Agent, the "Solicitation Agent") and authorizes the Solicitation Agent to act as such in connection with the Rights Offering; provided that each such appointment shall be reasonably satisfactory to the Company.


Each Co-Solicitation Agent each hereby authorizes the Solicitation Agent, acting on behalf of the Co-Solicitation Agent, as their representative: (a) to waive performance or satisfaction by the Company of obligations or conditions included in this Agreement if, in the judgment of the Solicitation Agent, such waiver will not have a material adverse effect upon the interests of the Co-Solicitation Agent and (b) to take such actions as in the discretion of the Solicitation Agent may be necessary or advisable to carry out this Agreement, and the transactions contemplated hereby for the accounts of the several Co-Solicitation Agent. Each Co-Solicitation Agent also authorizes the Solicitation Agent to determine all matters relating to advertising and communications with dealers and others.


4. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS AND TRUST COMPANIES. No Solicitation Agent shall be subject to any liability to the Company (or any of the Company's affiliates or stockholders) for any act or omission on the part of any broker or dealer in securities or any bank or trust company or any other person, and no Solicitation Agent shall be liable for its own acts or omissions in performing its obligations as Solicitation Agent or Co-Solicitation Agent, as applicable, hereunder or otherwise in connection with the Rights Offering or the related transactions, except for any losses, claims, damages, liabilities and expenses determined in a final judgment by a court of competent jurisdiction to have resulted directly from any such acts or omissions undertaken or omitted to be taken by such Solicitation Agent or Co-Solicitation Agent through its gross negligence, willful misconduct or bad faith. Except as provided in Section 7, in soliciting or obtaining subscriptions or purchases, no Solicitation Agent shall be deemed to be acting as the agent of the Company or as the agent of any broker, dealer, bank or trust company, and no broker, dealer, bank or trust company shall be deemed to be acting as an agent of any Solicitation Agent or as the agent of the Company.


5. THE OFFER DOCUMENTS. There will be used, in connection with the Rights Offering, certain materials in addition to the Registration Statement and the Prospectus (each as defined below), including the instructions regarding the use of subscription certificates; the proposed form of a letter to securities dealers, commercial banks, trust companies and other nominees; the proposed form of a letter from securities dealers, commercial banks, trust companies and other nominees to their customers relating to the Rights Offering; and other soliciting materials relating to the Rights Offering approved by the Company, each in the form which has been approved by the Solicitation Agent (collectively with the Registration Statement and the Prospectus, the "Offer Documents").


The Company agrees to furnish the Solicitation Agent with as many copies of the final forms of the Offer Documents as the Solicitation Agent may request from time to time and the Solicitation Agent is hereby authorized to use copies of the Offer Documents in connection with its acting as Solicitation Agent. The Solicitation Agent hereby agrees that it will not disseminate any written material for, or in connection with, the Rights Offering other than the Offer Documents, and the Solicitation Agent agrees that it will not make any statements in connection with such solicitation, other than the statements which are set forth in, or statements which are consistent with, the Offer Documents or as otherwise authorized by the Company.


The Company represents and agrees that no solicitation material in addition to the Offer Documents and the documents to be filed therewith as exhibits thereto (each in the form which has been approved by the Solicitation Agent), including, without limitation, any materials used in connection with any "road show" presentation, will be used in connection with the Rights Offering or filed with the Commission (as defined below) or any state or local governmental or regulatory authority by or on behalf of the Company without the Solicitation Agent's prior written approval, which approval will not be unreasonably withheld or delayed. In the event that the Company uses or permits the use of any such solicitation material in connection with the Rights Offering or files any such solicitation material with the Commission or any such state or local governmental or regulatory authority without the Solicitation Agent's prior written approval, then the Solicitation Agent shall be entitled to withdraw as Solicitation Agent or Co-Solicitation Agent, as applicable, in connection with the Rights Offering and the related transactions without any liability or penalty to such Solicitation Agent or any other person identified in Section 13 as an "indemnified party," and such withdrawing Solicitation Agent shall be entitled to receive the payment of all fees and expenses payable under this Agreement which have accrued to the date of such withdrawal or which otherwise thereafter become payable.


6. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, the Solicitation Agent, and each of them, that:


(a) A Registration Statement on Form S-3 (Registration No. 333-70114) with respect to the Rights, the Warrants and the Common Shares issuable pursuant to exercise of the Rights and the Warrants has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933 and the rules and regulations promulgated thereunder (the "Securities Act") of the Securities and Exchange Commission (the "Commission") thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act. Copies of the Registration Statement, as amended to date, have been delivered by the Company to the Solicitation Agent. For purposes of this Agreement, "Effective Time" means the date and the time as of which the Registration Statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Effective Date" means the date of the Effective Time; "Registration Statement" means the Registration Statement, as amended at the Effective Time, including any documents incorporated by reference therein at such time; and "Prospectus" means the combined prospectus included in such Registration Statement as first filed with the Commission pursuant to Rule 424(b)


of the Securities Act. References made herein to the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act as of the date of such Prospectus, and any reference to any amendment or supplement to the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder (the "Exchange Act") after the date of the Prospectus, as the case may be, and incorporated by reference in the Prospectus; and any reference to any amendment to the Registration Statement shall be deemed to include any report of the Company filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Time that is incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of the Prospectus.


(b) On its Effective Date, the Registration Statement conformed in all material respects to the requirements of the Securities Act and did not, as of the applicable Effective Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and on the date hereof, the Prospectus conforms in all material respects to the requirements of the Securities Act and does not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to statements in or omissions from any of such documents based upon written information furnished to the Company by or on behalf of any Solicitation Agent specifically for use therein.


(c) The Company and each of it subsidiaries (the "Subsidiaries") is duly formed and is validly existing and in good standing as a corporation under the laws of its respective jurisdiction of incorporation, with corporate power and authority to own its respective properties and conduct its respective business as described in the Prospectus; and each is duly qualified to do business as a foreign corporation in good standing in all jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), business, prospects, results of operations or cash flow of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").


(d) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and considerations of public policy in respect of the indemnification provisions hereof.


(e) The documents incorporated by reference in the Prospectus, at the time such documents were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act.


(f) Since the respective dates as of which information is given in the Registration Statement, except as set forth in the Prospectus, there has not been any material adverse change in the business, prospects, properties, operations, financial condition or results of operations of the Company and its Subsidiaries taken as a whole, and since the date of the latest consolidated balance sheet of the Company and its Subsidiaries included in the Registration Statement, neither the Company nor any of its Subsidiaries has incurred or


undertaken any liabilities or obligations, direct or contingent, that are material to the business, prospects, properties, operations, financial condition or results of operations of the Company and its Subsidiaries taken as a whole, except for liabilities or obligations that were incurred or undertaken in the ordinary course of business, consistent with past practices, or that are disclosed in the Registration Statement.


(g) Upon issuance: (1) the Rights and Warrants will be duly and validly issued, and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, (2) no holder of the Rights or Warrants is or will be subject to personal liability by reason of being such a holder, (3) the Rights, Warrants and Common Shares issuable upon exercise of the Rights and Warrants will conform in all material respects to the description thereof contained in the Prospectus; (4) the Common Shares issuable upon exercise of the Rights have been duly and validly authorized and reserved for issuance and when issued and delivered against payment therefor in accordance with the terms of the Offer Documents will be duly and validly issued, fully paid and non-assessable, with no personal liability attaching to the ownership thereof and will conform in all material respects to the description thereof contained in the Prospectus upon exercise of the Rights and are will be free of any statutory and or contractual preemptive rights and are sufficient in number to meet the exercise requirements of the Rights Offering; and (5) the Warrants and Common Shares issuable upon exercise of the Warrants have been duly and validly authorized and reserved for issuance, and when issued and delivered against payment therefor in accordance with the terms of the Rights Offering Warrants, will be duly and validly issued, fully paid and non-assessable, with no personal liability attaching to the ownership thereof; and will conform in all material respects to the description thereof contained in the Prospectus and will be free of any statutory or contractual preemptive rights.


(h) The Company has an authorized capitalization as set forth under the captions "Capitalization" and "Description of Capital Stock" in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform in all material respects to the description thereof contained under such captions in the Prospectus.


(i) The execution, delivery and performance of this Agreement by the Company, the issuance of the Rights in accordance with the terms of the Offer Document, the issuance of Common Shares and Warrants in accordance with the terms of the Rights Offering and the issuance of the Common Shares upon exercise of the Warrants, and the consummation by the Company of the transactions contemplated hereby, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or conflict with, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any of its properties or the articles of incorporation of the Company, or any agreement or instrument to which the Company is a party or by the Company is bound or to which any of the properties of the Company is subject, and will not result in the imposition or creation of any lien upon any property of the Company, in each case that has had or could reasonably be expected to have a Material Adverse Effect; and the Company has full power and authority to authorize, issue and sell, as applicable, the Rights, Common Shares, the Warrants and the Common Shares issuable upon the exercise of the Warrants as contemplated by the provisions of this Agreement and to perform its obligations under this Agreement and the Offer Documents and to consummate the transactions contemplated hereby and thereby.


(j) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act, except as specifically set forth in Schedule 6(j) attached to this Agreement as of the date of its execution contemplating the registration under the Securities Act (as hereinafter defined).


(k) The consolidated financial statements of the Company and its Subsidiaries, together with the related schedules and notes, contained or incorporated by reference in the Registration Statement present fairly in all material respects the consolidated financial position, results of operations, cash flow and shareholders' equity of the Company and its consolidated Subsidiaries in conformity with generally accepted accounting principles on the basis stated in the registration Statement at the respective dates and for the respective periods to which they apply; such financial statements and related schedules and notes have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, except as disclosed therein; the other financial and statistical information and data with respect to the Company and its Subsidiaries set forth in the Registration Statement present fairly the information purported to be shown thereby at the respective dates or for the respective periods to which they apply and have been prepared on a basis consistent with such financial statements and the books and records of the Company.


(l) Except as set forth in the Prospectus, there are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened, to which the Company or any Subsidiary is a party or of which any of their respective properties or assets is subject that are required to be described in the Registration Statement or the Prospectus and are not so described.


(m) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance of the Rights, Common Shares or the Warrants or Common Shares issuable upon exercise of the Warrants, except: (1) filings required by the Nasdaq National Market; and (2) such filings as have been obtained and made under the Securities Act and as may be required under applicable state securities or blue sky laws.


(n) [Reserved]


(o) Neither the Company nor any of the Subsidiaries is in violation of its charter or bylaws or in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument to which it is a party or by which it or any of its property is bound, except for those defaults that, individually or in the aggregate, would not have a Material Adverse Effect.


(p) The Company and each of the Subsidiaries possesses such licenses, consents, authorizations, approvals, orders, certificates, authorities or permits (collectively, the "Licenses"), including, without limitation, under any applicable U.S. Federal Communications Commission (or similar authority of any other applicable jurisdiction), environmental, safety, health or similar law or regulation applicable to its business relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct its business as now operated, except where the failure to obtain such Licenses, individually or in the aggregate, would not have a Material Adverse Effect, and neither the Company nor any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such License which, individually or in the aggregate, if the subject of any unfavorable decision, ruling or finding, would have a Material Adverse Effect.


(q) Except as set forth in the Prospectus, neither the Company nor any of its Subsidiaries is in violation of any Environmental Law, owns or operates any real property contaminated with any substance that is subject to any Environmental Law, is liable for any off-site disposal or contamination pursuant to any Environmental Law, or is subject to any claim relating to any Environmental Law, which violation, contamination, liability or claim would, individually or in the aggregate, have a Material Adverse Effect, and the Company is not aware of any pending investigation which might lead to such a violation, liability or claim.


(r) PriceWaterhouseCoopers LLP, the accountants who certified the financial statements included in the Prospectus, were, at the time such statements were certified and during the periods covered by such statements, and are, as of the date hereof, independent public accountants, as required by the Securities Act.


(s) The Shares and the Warrants are currently, and at all times prior to closing of the offering shall be, eligible for trading on the Nasdaq National Market System or SmallCap Market or the Over The Counter Bulletin Board Market, and there shall be no perceived disability to the continued eligibility for trading of the Shares or the Warrants on such markets during the term of the Warrants.


7. CONDUCT BY THE SOLICITATION AGENT. Subject to the terms and conditions of this Agreement, the Solicitation Agent agrees in accordance with its customary practice to use its reasonable efforts to solicit the exercise of the Rights pursuant to the Rights Offering by United States residents, in each case pursuant to the Offer Documents, and to respond, in concert with the responsibilities of Innisfree M+A, Inc. as information agent, to requests for information and materials in connection with the Rights Offering. Such services of the Solicitation Agent shall commence upon the commencement of the Rights Offering.


The Company hereby authorizes the Solicitation Agent to act as the Company's agent in making the Rights Offering to residents of such states of the United States as to which such agent designation may be necessary to comply with applicable law.


The Solicitation Agent agrees that (a) prior to the termination of this Agreement it will not, directly or indirectly, bid for or purchase any Shares or Warrants for its own account, except as permitted by Regulation M of the Act and the Exchange Act ("Regulation M") and as provided in this Agreement, and (b) prior to the completion of the Solicitation Agent participation in this distribution (as defined in Regulation M), it will otherwise comply with Regulation M.


8. COMPENSATION OF THE SOLICITATION AGENT. The Company agrees to pay the Solicitation Agent, as described below, and for the services rendered and to be rendered by such Solicitation Agent as financial advisors to the Company in connection with the Rights Offering and the transactions related thereto, the following fees:


(a) If the Closing occurs, a fee to the Solicitation Agent for marketing assistance services in connection with the Rights Offering (the "Solicitation Agent Fee"), to be paid upon the Closing Date, which Solicitation Agent Fee shall be in the amount of seven percent (7%) of the gross proceeds raised upon exercise of the Rights, excluding any Rights exercised by officers and directors of the Company.


(b) Upon exercise of the Warrants a fee to the Solicitation Agent for marketing assistance services in connection with the Rights Offering (the "Warrant Fee"), to be paid from time to time upon the exercise of the Warrants, which Warrant Fees shall be in the amount of three (3%) percent of the gross proceeds raised upon exercise of the Warrants.


(c) With respect to the Solicitation Agent, a fee, to be paid on the Closing Date, in the form of a warrant to purchase a number of Units equal to three percent (3%) of the number of Units purchased in the Rights Offering, which warrant shall be in the form of Schedule 8(c) to this Agreement (the "Underwriters Warrant") .


In addition, the Company will reimburse certain of the Solicitation Agent's out-of-pocket or otherwise incurred expenses as set forth in Section 9 hereof.


The Solicitation Agent shall bear the expenses payable to soliciting broker-dealers as set forth in the Offer Documents.


Other than the Solicitation Agent, the Company will not employ any brokers, dealers or underwriters in connection with the Rights Offering, and except as described above, no other commissions, fees or discounts will be paid in connection with the Rights Offering.


9. EXPENSES. The Company shall pay or cause to be paid, directly and not as reimbursements to the Solicitation Agent: (A) all expenses (including any taxes) incurred in connection with the Rights Offering and the preparation, issuance, execution, authentication and delivery of the Right, Common Shares, Warrants and the Underwriters Warrant,


(B) all fees and expenses (including, without limitation, fees and expenses of the Company's accountants and legal counsel) in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), the Prospectus, the other Offer Documents and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing and the preliminary and final filings under state securities or blue sky laws, if any, (C) all reasonable out-of-pocket expenses (including, without limitation, travel and marketing expenses) of the Solicitation Agent (including reasonable fees, disbursements and other expenses of legal counsel for the Solicitation Agent) incurred in connection with the Rights Offering, which shall be paid immediately upon receipt by the Company, (D) all filing fees and reasonable fees and disbursements of counsel to the Solicitation Agent incurred in connection with the qualification of the distribut
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