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 2, 2009
NEXTWAVE WIRELESS INC.
(Exact name of registrant as specified in its charter)
Delaware 000-51958 20-5361360
(State or other jurisdiction (Commission (I.R.S. employer
of incorporation) file number) identification no.)
13050 Science Center Drive, Suite 210
San Diego, California 92121
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:(858) 480-3100
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing 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)
|_| 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 2, 2009, NextWave Wireless Inc. (the "Company"), NextWave
Broadband Inc., a wholly-owned subsidiary of the Company ("NWBB") and
PacketVideo Corporation, a wholly-owned subsidiary of NWBB ("PacketVideo")
entered into a Stock Purchase Agreement (the "Stock Purchase Agreement") with
NTT DoCoMo, Inc. ("DoCoMo") pursuant to which DoCoMo acquired from NWBB 35% of
the issued and outstanding common stock of PacketVideo for $45.5 million. The
net proceeds from the sale of the PacketVideo shares by NWBB will be applied to
redeem a portion of the Company's 7% Senior Secured Notes due 2010.
Pursuant to the Stock Purchase Agreement, the Company, NWBB and
PacketVideo made customary representations to DoCoMo relating to PacketVideo and
the ownership of the PacketVideo shares. Such representations and warranties
will survive and be subject to indemnification pursuant to the agreement,
subject to a cap of $5 million with certain exceptions, for 15 months following
the closing date.
In connection with the Stock Purchase Agreement, the parties also
entered into a Stockholders' Agreement pursuant to which, among other things:
o NWBB and PacketVideo granted DoCoMo rights of first negotiation
and first refusal applicable to future transfers of shares of
PacketVideo common stock held by NWBB or the sale or other
disposition of all or substantially all of the assets of
PacketVideo or certain mergers involving PacketVideo;
o DoCoMo granted NWBB a drag-along right in the event a third party
proposes to acquire all of NWBB's shares of PacketVideo common
stock, subject to certain limitations and DoCoMo's rights of
first negotiation and first refusal described above;
o DoCoMo granted PacketVideo and NWBB a right of first refusal in
the event a third party proposes to acquire any of DoCoMo's
shares of PacketVideo common stock;
o NWBB granted DoCoMo an option to acquire all of NWBB's remaining
shares of PacketVideo common stock for fair market value, as
determined by an independent third party appraiser selected in
accordance with the Stockholders' Agreement, which option will
become exercisable for a period of time following the earliest to
occur of (i) July 31, 2010, (ii) the date on which any creditor
or third party initiates action to enforce any loan, guaranty or
lien in excess of $5.0 million against the Company or any of its
affiliates, or (iii) the date on which PacketVideo achieves an
agreed upon technology milestone;
o PacketVideo granted DoCoMo preemptive rights to acquire DoCoMo's
pro rata portion of any new securities issued by PacketVideo (if
any), subject to certain exclusions;
o DoCoMo was granted certain information rights and the right to
designate one of the three members of PacketVideo's board of
directors; and
o PacketVideo agreed not to take certain actions without obtaining
the prior written consent of DoCoMo.
The covenants set forth in the Stockholders' Agreement terminate if
PacketVideo completes an initial public offering or becomes subject to periodic
reporting requirements under the Securities Exchange Act of 1934, as amended.
Certain covenants also terminate immediately prior to specified significant
change of control transactions or if DoCoMo holds less than 10% of the
outstanding PacketVideo common stock.
PacketVideo, NWBB and DoCoMo also entered into a Registration Rights
Agreement pursuant to which PacketVideo granted NWBB and DoCoMo piggy-back
registration rights in the event PacketVideo proposes to register any of its
securities and demand registration rights following an initial public offering
of PacketVideo, in each case subject to limitations set forth in the
Registration Rights Agreement.
Pursuant to the Amended and Restated Certificate of Incorporation of
PacketVideo filed in connection with the transaction, the shares of PacketVideo
common stock held by DoCoMo have full ratchet antidilution price protection in
the event of certain subsequent issuances of PacketVideo common stock at a price
per share below the price per share paid by DoCoMo. In the event of any such
2
dilutive issuance, additional shares of PacketVideo common stock would be issued
to DoCoMo so that the aggregate number of shares held by DoCoMo after the
issuance of such additional shares to DoCoMo would have an aggregate value equal
to the aggregate purchase price paid by DoCoMo for its PacketVideo shares.
Pursuant to the Stock Purchase Agreement, the parties agreed to
negotiate a technology collaboration agreement providing for the mutual
management of PacketVideo's development efforts relating to DoCoMo's products
and technologies. In addition, the parties agreed to establish the terms and
conditions of a newly created equity-based incentive plan for PacketVideo, which
would provide for shares of PacketVideo to be issued to PacketVideo employees,
in an amount of up to fifteen percent (15%) of the Company's outstanding capital
stock on a fully diluted basis as of the closing date.
The foregoing descriptions of the Stock Purchase Agreement, the
Stockholders' Agreement, the Registration Rights Agreement and the Amended and
Restated Certificate of Incorporation of PacketVideo are summaries of the
material terms of such documents. Copies of the Stock Purchase Agreement, the
Stockholders' Agreement and the Registration Rights Agreement will be filed as
exhibits to the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 27, 2009.
Item 8.01 Other Events.
In order to facilitate the transactions contemplated by the Stock
Purchase Agreement, the Company, PacketVideo, NWBB and other subsidiaries of the
Company entered into an amendment and limited waiver to the agreements governing
the 7% Senior Secured Notes due 2010 of NextWave Wireless LLC, the
Senior-Subordinated Secured Second Lien Notes due 2010 of NextWave Wireless LLC
and the Third Lien Subordinated Secured Convertible Notes due 2011 of NextWave
Wireless Inc. Pursuant to such amendment and limited waiver, all liens on the
PacketVideo shares sold by NWBB to DoCoMo pursuant to the Stock Purchase
Agreement were released. In addition PacketVideo's guaranty of the Company's
indebtedness under the note agreements was released. The holders of the notes
also waived compliance with various other provisions in the note agreements to
facilitate certain rights granted to DoCoMo pursuant to the Stockholders'
Agreement.
3
SIGNATURE
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.
Date: July 6, 2009
NEXTWAVE WIRELESS INC.
By: /s/ Frank A. Cassou
------------------------------------------------
Frank A. Cassou
Executive Vice President and Chief Legal Counsel
4