As filed with the Securities and Exchange Commission on July 13, 2007
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEXTWAVE WIRELESS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 20-5361360
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
12670 HIGH BLUFF DRIVE
SAN DIEGO, CA 92130
(Address of Principal Executive Offices)
IPWIRELESS, INC. EMPLOYEE STOCK BONUS PLAN
(Full Title of Plan)
FRANK A. CASSOU
EXECUTIVE VICE PRESIDENT - CORPORATE DEVELOPMENT AND CHIEF LEGAL COUNSEL
12670 HIGH BLUFF DRIVE
SAN DIEGO, CA 92130
(858) 480-3100
(Name, Address, and Telephone Number,
Including Area Code, of Agent For Service)
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Copies to:
MARITA A. MAKINEN, ESQ.
WEIL GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Each Clas Amount Offering Aggregate Amount of
of Securities to be Price Offering Registration
to be Registered Registered(1) Per Share(2) Price(2) Fee(2)
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Common stock, $0.001 902,062 $7.76 $7,000,000 $214.90
par value per share
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(1) The securities to be registered are issuable under the IPWireless, Inc.
Employee Stock Bonus Plan. Pursuant to Rule 416(a) under the Securities
Act of 1933, this registration statement shall cover such additional
securities as may be offered or issued to prevent dilution resulting from
recapitalizations, stock splits, stock dividends or similar transactions.
(2) In accordance with Rules 457(h) and 457(c) of the Securities Act of 1933,
the registration fee is based upon the average of the high and low prices
of NextWave Wireless Inc. shares of common stock, per value $0.001 per
share, reported by the Nasdaq Global Market, as of July 9, 2007.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the "Securities Act") and the Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
NextWave Wireless Inc. (the "Company") hereby incorporates by
reference into this registration statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
o The Company's Annual Report on Form 10-K for the year ended December
30, 2006, filed on March 30, 2007;
o The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2007, filed on May 15, 2007; and
o The Company's Current Reports on Form 8-K filed on January 3, 2007,
March 26, 2007, April 12, 2007, May 8, 2007, May 18, 2007 and May
23, 2007, and
o The description of the Company's common stock contained in the
Post-Effective Amendment No. 1 to the Registration Statement on Form
S-1, filed on April 23, 2007 (Registration No. 333-139440).
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and prior to the filing of a post-effective
amendment hereto, which indicates that all securities hereunder have been sold
or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement. Copies of these documents are not required to be
filed with this registration statement, and nothing in this registration
statement shall be deemed to incorporate information furnished but not filed
with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
1
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits
registrant's board of directors to indemnify any person against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with any
threatened, pending, or completed action, suit, or proceeding in which such
person is made a party by reason of his or her being or having been a director,
officer, employee, or agent of us, or serving or having served, at our request,
as a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, in terms sufficiently broad to permit
such indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. The
statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
Paragraph A of Article VII of the amended and restated certificate
of incorporation of the registrant provides, in part, as follows:
A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL.
Paragraph B of Article VII of the amended and restated certificate
of incorporation of the registrant provides, in part, as follows:
Each person who is or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was a director or officer of the Company shall be indemnified and
held harmless by the Company to the fullest extent authorized by the DGCL
against all expense, liability and loss (including attorneys' fees, judgments,
fines, and amounts paid in settlement) actually and reasonably incurred by such
person in connection therewith if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best interests of
the Company and with respect to any criminal action or proceeding had no
reasonable cause to believe the person's conduct was unlawful, and such
indemnification shall continue as to a person who has ceased to be a director or
officer; provided, however, that, except as provided in the paragraph
immediately below, the Company shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only if
such proceeding was authorized by the board of directors of the Company. The
right to indemnification so conferred shall include the right to be paid by the
Company for any expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the DGCL requires, the payment
of such expenses incurred by a director or officer in his or her capacity as a
director or officer in advance of the final disposition of a proceeding shall be
made only upon delivery to the Company of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this section or otherwise.
If such a claim is not paid in full by the Company within twenty
days after a written claim, including any required undertaking, has been
received by the Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall be entitled to be paid also the expense
of prosecuting such claim. It shall be a defense to any such action that the
claimant has not met the standards of conduct which make it permissible under
the DGCL for the Company to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Company. Neither the failure
of the Company to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Company that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Pursuant to Section 102(b)(7) of the DGCL, a director or officer
will be liable for any act or omission (i) not performed or omitted in good
faith or which such person did not reasonably believe to be in registrant's best
interests or which involved intentional misconduct or knowing violation of the
law or (ii) from which such person received an improper personal benefit. The
2
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4/A filed on
November 7, 2006).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-4/A filed on November 7, 2006).
5.1 Opinion of Weil, Gotshal & Manges LLP as to the legality of
the shares being registered (filed herewith).
23.1 Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm (filed herewith).
23.2 Consent of Weil, Gotshal & Manges LLP (included in its opinion
which appears as Exhibit 5.1 to this Registration Statement).
24 Power of Attorney (included on signature page).
99.1 IPWireless, Inc. Employee Stock Bonus Plan (filed herewith).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) 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;
(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; and
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
3
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in the
registration statement 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) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is against public
policy as expressed in the Securities 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
Securities Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, California, on this 13th day of July,
2007.
NEXTWAVE WIRELESS INC.
(REGISTRANT)
By: /s/ Frank A. Cassou
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Frank A. Cassou
Executive Vice President -
Corporate Development and
Chief Legal Counsel, Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned constitutes and
appoints each of Frank A. Cassou, George C. Alex and Roseann Rustici, or any of
them, each acting alone, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in his name,
place and stead, in any and all capacities, to sign this Registration Statement
on Form S-8, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, each acting alone, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming that
any such attorney-in-fact and agent, or his/her substitute or 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 in the capacities and on the
dates indicated.
Signature Title Date
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Chairman of the Board of July 13, 2007
Directors, Chief Executive
/s/ Allen Salmasi Officer and President
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Allen Salmasi (Principal Executive Officer)
Executive Vice President - July 13, 2007
/s/ George C. Alex Chief Financial Officer
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George C. Alex (Principal Financial Officer)
Executive Vice President - July 13, 2007
/s/ Francis J. Harding Chief Accounting Officer
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Francis J. Harding (Principal Accounting Officer)
/s/ James C. Brailean Director July 13, 2007
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James C. Brailean
/s/ William Jones Director July 13, 2007
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William Jones
/s/ Douglas F. Manchester Director July 13, 2007
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Douglas F. Manchester
Director
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Jack Rosen
/s/ Robert T. Symington Director July 13, 2007
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Robert T. Symington
/s/ William H. Webster Director July 13, 2007
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William H. Webster
S-2
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4/A filed on
November 7, 2006).
4.2 Amended and Restated By-Laws of the Registrant (incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-4/A filed on November 7, 2006).
5.1 Opinion of Weil, Gotshal & Manges LLP as to the legality of
the shares being registered (filed herewith).
23.1 Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm (filed herewith).
23.2 Consent of Weil, Gotshal & Manges LLP (included in its opinion
which appears as Exhibit 5.1 to this Registration Statement).
24 Power of Attorney (included on signature page).
99.1 IPWireless, Inc. Employee Stock Bonus Plan (filed herewith).