As filed with the Securities and Exchange Commission on January 18, 2007
Registration No. 333-139169
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
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
Incorporation or Organization) Identification No.)
12670 HIGH BLUFF DRIVE
SAN DIEGO, CA 92130
(Address of Principal Executive Offices)
PACKETVIDEO CORPORATION 2005 EQUITY INCENTIVE 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
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share (2) Price (2)
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Common stock, $0.001 par value 1,833,333 $6.92 $12,693,858.50 1,358.24
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(1) The securities to be registered are issuable under the PacketVideo
Corporation 2005 Equity Incentive Plan. Pursuant to Rule 416 under the
Securities Act of 1933, this Post-Effective Amendment shall cover such
additional securities as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
(2) In accordance with Rule 457(h), the registration fee is based on the
weighted average exercise price for outstanding options. The registration
fee for remaining shares issuable under the PacketVideo Corporation 2005
Equity Incentive Plan has been computed pursuant to Rule 457(h)(1) based on
the aggregate book value of the shares as of January 16, 2007
($3,210,750.50).
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EXPLANATORY NOTE
On December 7, 2006, we filed an S-8 registration statement (the
"Original S-8") under the Securities Act of 1933, as amended (the "Securities
Act"), to register up to 12,708,867 shares of our common stock, par value $0.001
per share ("Common Stock"), to be issued to participants in the NextWave
Wireless Inc. 2005 Stock Incentive Plan (the "Stock Incentive Plan") and the
CYGNUS Communications, Inc. 2004 Stock Option Plan (the "CYGNUS Plan"). The
purpose of this Post-Effective Amendment on Form S-8 is to register an
additional 1,833,333 shares of our Common Stock, to be issued to participants in
the PacketVideo Corporation 2005 Equity Incentive Plan (the "PacketVideo Plan").
Under the PacketVideo Plan, on January 3, 2007, each outstanding option,
exercised or not, was automatically converted into an option or other award to
purchase shares of our Common Stock rather than shares of our wholly owned
subsidiary PacketVideo Corporation.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The Registrant has prepared this Post-Effective Amendment in accordance
with the requirements of Form S-8 under the Securities Act to register Common
Stock issuable pursuant to the PacketVideo Plan. The information called for by
Part I of this Post-Effective Amendment (the "Part I Information") in respect of
the 1,833,333 shares of Common Stock issuable pursuant to the PacketVideo Plan
is included in the description of the PacketVideo Plan contained in the
documents made available to PacketVideo Plan participants as specified by Rule
428(b)(1) under the Securities Act. The Part I Information is not filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Post-Effective Amendment or as prospectuses or prospectus supplements pursuant
to the note to Part I of Form S-8 and Rule 424 of the Securities Act.
Throughout this Post-Effective Amendment, the words "NextWave
Wireless," "we," "us," the "Company," and "our" refer to NextWave Wireless Inc.
and its consolidated subsidiaries.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. NextWave Wireless hereby incorporates by reference in this
Post-Effective Amendment the following documents, which are on file with the
SEC:
o The contents of the Registrant's registration statement on Form S-8
(registration number 333-139169) filed by the Registrant with the
Securities and Exchange Commission on December 7, 2006;
o The Company's prospectus filed on November 16, 2006 pursuant to Rule
424(b) under the Securities Act, in which there is set forth our
audited financial statements for the year ended December 31, 2005;
o The description of the Common Stock in Amendment No. 2 to the
Company's Registration Statement on Form S-4 (Registration No.
333-137388), filed November 7, 2006, as amended, and including any
amendment or report filed for the purpose of updating such
description; and
2
o All other reports filed pursuant to Section 13(a) and 15(d) of the
Exchange Act since the end of the Registrant's 2005 fiscal year.
All documents filed by NextWave Wireless pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated in this Post-Effective Amendment by reference and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Weil, Gotshal & Manges has rendered an opinion on the validity of the
securities being registered and does not have an interest in the Common Stock.
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.
As permitted by Section 102(b)(7) of the DGCL, Article VII of
Registrant's Certificate of Incorporation limits the liability of its directors
and officers for any loss, claim or damage incurred by reason of any act or
omission performed or omitted by such person on Registrant's behalf and in good
faith and in a manner reasonably believed to be within the scope of the
authority conferred on such person by Registrant's bylaws. Registrant will
advance the costs incurred by or on behalf of any director or officer in
connection with any indemnified loss within 20 days after Registrant receives a
detailed statement providing reasonable documentation of such costs and
providing a written undertaking stating that such person will repay all advanced
costs if it is later determined that such individual was entitled to
indemnification by Registrant. We believe that the limitation of liability
provision in Registrant's by-laws will facilitate its ability to continue to
attract and retain qualified individuals to serve as directors and officers.
However, 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 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.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or other agent of Registrant in which
indemnification is being sought, nor is the Registrant aware of any threatened
litigation that may result in a claim for indemnification by any director,
officer, employee or other agent of the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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4.1 - Amended and Restated Certificate of Incorporation of
the Company, as restated on November 6, 2006
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4/A filed
November 7, 2006)
4.2 - Amended and Restated By-laws of the Company, adopted
on September 12, 2006(incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement
on Form S-4/A filed November 7, 2006)
4.3 - Specimen common stock certificate (incorporated by
reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-4/A filed November
7, 2006)
5.1 - Opinion of Weil, Gotshal & Manges LLP*
23.1 - Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm*
23.2 - Consent of Moss Adams LLP, Independent Registered
Public Accounting Firm*
23.3 - Consent of Weil, Gotshal & Manges LLP (included in
its opinion which appears as Exhibit 5 to this
Post-Effective Amendment)*
99.1 - NextWave Wireless Inc. 2005 Stock Incentive Plan*
99.2 - PacketVideo Corporation 2005 Equity Incentive Plan
(incorporated by reference to Exhibit 10.2 to the
Registration Statement of NextWave Wireless LLC on
Form 10 filed on May 1, 2006)
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* 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
Post-Effective Amendment;
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the Post-Effective Amendment (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 Post-Effective
Amendment; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Post-Effective
Amendment or any material change to such
information in the Post-Effective Amendment;
4
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
Securities and Exchange 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
Post-Effective Amendment.
(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
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 of
1933 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 this Post-Effective Amendment on Form S-8 and has duly
caused this Post-Effective Amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in City of New York, State of New York,
on this 18th day of January, 2007.
NEXTWAVE WIRELESS INC.
By: /s/ Frank A. Cassou
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Frank A. Cassou
Executive Vice President - Corporate
Development and Chief Legal Counsel,
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment 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 Directors, Chief January 18, 2007
----------------------------------- Executive Officer and President
Allen Salmasi (Principal Executive Officer)
* Executive Vice President - Chief Financial January 18, 2007
----------------------------------- Officer (Principal Financial Officer)
George C. Alex
* Senior Vice President - Corporate Controller January 18, 2007
----------------------------------- (Principal Accounting Officer)
Fran J. Harding
/s/ Frank A. Cassou Director January 18, 2007
-----------------------------------
Frank A. Cassou
* Director January 18, 2007
-----------------------------------
Kevin M. Finn
* Director January 18, 2007
-----------------------------------
Douglas F. Manchester
* Director January 18, 2007
-----------------------------------
Jack Rosen
* Director January 18, 2007
-----------------------------------
Robert T. Symington
S-1
SIGNATURE TITLE DATE
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* Director January 18, 2007
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William H. Webster
/s/ Frank A. Cassou
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* By: Frank A. Cassou
Attorney-in-fact
S-2
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 - Amended and Restated Certificate of Incorporation of
the Company, as restated on November 6, 2006
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4/A filed
November 7, 2006)
4.2 - Amended and Restated By-laws of the Company, adopted
on September 12, 2006(incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement
on Form S-4/A filed November 7, 2006)
4.3 - Specimen common stock certificate (incorporated by
reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-4/A filed November
7, 2006)
5.1 - Opinion of Weil, Gotshal & Manges LLP*
23.1 - Consent of Ernst & Young LLP, Independent Registered
Public Accounting Firm*
23.2 - Consent of Moss Adams LLP, Independent Registered
Public Accounting Firm*
23.3 - Consent of Weil, Gotshal & Manges LLP (included in
its opinion which appears as Exhibit 5 to this
Post-Effective Amendment)*
99.1 - NextWave Wireless Inc. 2005 Stock Incentive Plan*
99.2 - PacketVideo Corporation 2005 Equity Incentive Plan
(incorporated by reference to Exhibit 10.2 to the
Registration Statement of NextWave Wireless LLC on
Form 10 filed on May 1, 2006)
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* Filed herewith.