Attached files
| file | filename |
|---|---|
| EX-99.2 - EX.99.1 - PV PRESS RELEASE - NextWave Wireless Inc. | mm07-3010_8ke9902.htm |
| EX-99.1 - EX.99.1 - NW PRESS RELEASE - NextWave Wireless Inc. | mm07-3010_8ke9901.htm |
| EX-2.1 - EX.2.1 - STOCK PURCHASE AGREEMENT - NextWave Wireless Inc. | mm07-3010_8ke0201.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
Report (Date of earliest event reported): July 30, 2010
NEXTWAVE
WIRELESS INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
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000-51958
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20-5361360
|
|
(State
or other jurisdiction of
incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
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12264
El Camino Real, Suite 305
San
Diego, California
(Address
of principal executive offices)
|
92130
(Zip
Code)
|
Registrant’s
telephone number, including area code: (858) 731-5300
N/A
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following
provisions:
|
¨
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
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x
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
¨
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
|
|
¨
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
|
Item
1.01 Entry
into a Material Definitive Agreement.
On July
30, 2010, NextWave Wireless Inc. (the “Company”), NextWave Broadband Inc., a
wholly-owned subsidiary of the Company (“NWBB”) and PacketVideo Corporation, a
majority-owned subsidiary of NWBB (“PacketVideo”), entered into a Stock Purchase
Agreement (the “Stock Purchase Agreement”) with NTT DOCOMO, INC. (“DOCOMO”)
pursuant to which NWBB agreed to sell to DOCOMO all of the issued and
outstanding shares of common stock of PacketVideo held by NWBB, representing 65%
of the issued and outstanding common stock of PacketVideo, for an aggregate
purchase price of $111.6 million (the “Transaction”). The Company expects to
apply the proceeds of the Transaction, net of transaction expenses, to retire
approximately $95 million of First Lien Notes pursuant to its secured note
agreements, and expects to retain approximately $12.5 million to fund its
working capital needs.
DOCOMO
acquired 35% of the issued and outstanding common stock of PacketVideo in July
2009. In connection with the July 2009 transaction, the Company, NWBB,
PacketVideo and DOCOMO entered into a Stockholders’ Agreement dated July 2,
2009, pursuant to which, among other things, DOCOMO was granted the right to
purchase (the “Option”) all of the remaining shares of common stock of
PacketVideo held by NWBB (the “Shares”), subject to the satisfaction of
specified conditions and in accordance with the procedures set forth in the
Stockholders’ Agreement. As
previously disclosed by the Company, DOCOMO expressed its intent to exercise the
Option and in connection therewith, the Company and DOCOMO followed the
valuation procedures set forth in the Stockholders’ Agreement to agree upon the
price for the Shares in connection with DOCOMO’s exercise of the
Option.
Pursuant
to the Stock Purchase Agreement, the Company, NWBB and PacketVideo are making
customary representations to DOCOMO relating to PacketVideo and the ownership of
the Shares. Such representations and warranties will survive for 8 months
following the closing date and be subject to indemnification pursuant to the
Stock Purchase Agreement, subject to a cap of $8 million with certain
exceptions.
The Stock
Purchase Agreement also includes covenants by the Company, NWBB and PacketVideo,
including, among others, covenants (1) to carry on PacketVideo’s business
in the ordinary course during the pre-closing period, (2) for PacketVideo
not to engage in certain specified transactions or activities during the
pre-closing period, and (3) for the Company to file a proxy statement and
cause a special meeting of the Company’s stockholders to be held regarding the
adoption and approval of the Stock Purchase Agreement and the
Transaction.
The
closing of the Transaction is subject to the satisfaction or waiver of a number
of closing conditions, including, among others, (1) adoption and approval
of the Stock Purchase Agreement by the holders of a majority of the issued and
outstanding shares of the Company’s common stock, (2) the expiration or
termination of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (3) the absence of any legal
prohibitions on the closing of the Transaction, (4) subject to certain
exceptions, the continued accuracy of the Company’s representations and
warranties as of the closing date of the Transaction, (5) the termination of the
July 2009 Stockholders’ Agreement and modification of the Registration Rights
Agreement dated July 2, 2009 among PacketVideo, NWBB and DOCOMO to remove NWBB
as a party, and (6) the resignation of James C. Brailean, Ph.D., the Company’s
Chief Executive Officer, Chief Operating Officer and President, from the
Company’s Board of Directors and from his positions as an officer and employee
of the Company.
The Stock
Purchase Agreement also includes provisions enabling the Company and/or DOCOMO
to terminate the Stock Purchase Agreement in certain specified circumstances,
including, among others, (1) by mutual written consent of the Company and
DOCOMO, (2) by either the Company or DOCOMO if there has been a material breach,
inaccuracy in or failure to perform any representation, warranty, covenant or
agreement made by the other party that has not been cured within 20 days of
receipt of notice regarding such material breach, inaccuracy or failure, (3) by
either the Company or DOCOMO if any of the conditions to the other party’s
obligations to close the Transaction have not been met or it becomes apparent
will not be met by a specified end date, (4) by either the Company or DOCOMO,
subject to certain limitations set forth in the Stock Purchase Agreement, if any
law makes consummation of the Transaction illegal or otherwise prohibited or if
any governmental authority issues an order restraining or enjoining the
Transaction, and (5) by either the Company or DOCOMO if the adoption and
approval of the Stock Purchase Agreement by the holders of a majority of the
issued and outstanding shares of the Company’s common stock is not
obtained. Following a termination of the Stock Purchase Agreement,
the Company and
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NWBB may
be required to reimburse up to $700,000 of the aggregate expenses of DOCOMO
under specified circumstances.
The
Company and NWBB have also agreed not to compete with PacketVideo’s business,
solicit its employees, or induce its customers to terminate or modify their
relationship with PacketVideo, subject to limited exceptions, for a period of
two years following the closing date.
On August
1, 2010, the Company issued a press release announcing the Transaction and its
entry into the Stock Purchase Agreement. A copy of the press release
is attached as Exhibit 99.1 hereto. On August 1, 2010, PacketVideo issued a
press release announcing the Transaction. A copy of the PacketVideo
press release is attached as Exhibit 99.2 hereto.
The foregoing description of the Stock
Purchase Agreement does not purport to be complete and is qualified in its
entirety by reference to the Stock Purchase Agreement, a copy of which is
attached hereto as Exhibit 2.1 and incorporated herein by
reference.
Important
Additional Information
This
current report on Form 8-K contains “forward-looking statements” for purposes of
the Private Securities Litigation Reform Act of 1995 that involve risks and
uncertainties. There can be no assurances that forward-looking statements will
be achieved, including that the proposed Transaction will be approved by the
Company’s stockholders or that the other conditions to closing of the
Transaction will be satisfied. Actual events or results could differ
materially from the events or results predicted by such statements. Important
factors that could cause actual events or results to differ materially are
discussed in greater detail in the filings of the Company with the Securities
and Exchange Commission. All such documents are available through the SEC’s
website at www.sec.gov. The
Company makes no commitment to update any forward-looking statements in order to
reflect subsequent changes, events or circumstances except as may be required
pursuant to applicable law.
The
Company will file a proxy statement with the Securities and Exchange Commission
(the “SEC”) regarding the Transaction. BEFORE MAKING ANY VOTING DECISION
WITH RESPECT TO THE TRANSACTION, THE COMPANY’S STOCKHOLDERS ARE ADVISED TO READ
THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES AVAILABLE BECAUSE IT WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE TRANSACTION.
Stockholders
may obtain free copies of the proxy statement and other documents filed by the
Company (when available), at the SEC’s website at www.sec.gov or at the
Company’s website at www.nextwave.com. The
proxy statement and such other documents may also be obtained for free, when
they become available from the Company, by directing such request to Investor
Relations, NextWave Wireless Inc., 12264 El Camino Real, Suite 305, San Diego,
California 92130, telephone: 858-731-5300.
The
Company and its directors, executive officers and other members of its
management and employees may be deemed to be participants in the solicitation of
proxies from the Company’s stockholders in connection with the proposed
transaction. Information concerning the interests of those persons is set forth
in the Company’s proxy statement relating to the 2010 annual meeting of
stockholders and annual report on Form 10-K for the fiscal year ended January 2,
2010, both filed with the SEC, and will also be set forth in the proxy statement
relating to the proposed Transaction when it becomes available.
Item
5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
(b) As
a condition to the completion of the Transaction, James C. Brailean, Ph.D., the
Company’s Chief Executive Officer, Chief Operating Officer and President is
required to submit his resignation from the Company’s Board of Directors and
from his positions as an officer and employee of the Company. Dr. Brailean
submitted his resignations from the Company’s Board of Directors and from his
position as the Chief Executive Officer, Chief Operating Officer and President
of the Company in connection with the signing of the Stock Purchase Agreement on
July 30, 2010. Dr. Brailean continues to serve as the President and
Chief Executive Officer and as a member of the Board of Directors of PacketVideo
Corporation following his departure from the Company.
3
Mr. Frank
Cassou, the Company’s Executive Vice President -- Chief Legal Officer and Mr.
Francis Harding, the Company’s Executive Vice President -- Chief Financial
Officer, remain as executive officers of the Company reporting to the Board
concerning the Company’s day-to-day operations pending the Board's consideration
of a new principal executive officer role.
(e) In
connection with the signing of the Stock Purchase Agreement, the Company has
established cash retention bonuses for certain officers and employees of
PacketVideo. The cash retention bonuses are anticipated to be paid in connection
with the closing of the Transaction, subject to such persons’ continued
employment with PacketVideo. Dr. Brailean would be eligible to
receive a cash retention bonus of $280,000 at closing.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
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Exhibit
No.
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Description
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2.1
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Stock
Purchase Agreement, dated as of July 30, 2010, by and among NextWave
Wireless Inc., NextWave Broadband Inc., PacketVideo Corporation and NTT
DOCOMO, INC.
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99.1
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NextWave
Wireless Inc. Press Release dated August 1, 2010
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| 99.2 | PacketVideo Corporation Press Release dated August 1, 2010 | ||
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NEXTWAVE
WIRELESS INC.
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By:
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/s/ Frank
A. Cassou
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Name:
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Frank
A. Cassou
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Title:
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Executive
Vice President and Chief Legal Counsel
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Dated: August
2, 2010
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