As filed with the Securities and Exchange Commission on July 13, 2007
Registration No. 333-_________
UNITED STATES
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 (Zip Code)
Offices)
NEXTWAVE WIRELESS INC. 2007 NEW EMPLOYEE STOCK INCENTIVE PLAN
(FULL TITLE OF THE 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)
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
Maximum Maximum
Title of Each Offering Aggregate Amount of
Class of Securities Amount to be Price Per Offering Registration
to be Registered Registered(1) Share(3) Price(3) Fee(3)
--------------------------------------------------------------------------------
Common stock, 2,500,000(2) $10.04 $21,635,023 $664.20
$0.001 par value
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, this registration
statement shall also cover any additional shares of common stock of the
registrant which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of common stock of the registrant.
(2) Represents 2,500,000 additional shares of common stock of the registrant
issuable pursuant to awards available for grant under the NextWave
Wireless Inc. 2007 New Employee Stock Incentive Plan, as amended.
(3) In accordance with Rule 457(h) of the Securities Act of 1933, the
registration fee is based on the exercise price for outstanding options
($10.04 per share of common stock). The registration fees for remaining
shares issuable pursuant to awards available for grant under the NextWave
Wireless Inc. 2007 New Employee Stock Incentive Plan, as amended has been
computed pursuant to Rules 457(h) and 457(c) of the Securities Act of 1933
based on the average of the high and low prices of the registrant's shares
of common stock reported on the Nasdaq Stock Market as of July 9,2007
($7.76).
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INFORMATION REQUIRED PURSUANT TO
GENERAL INSTRUCTION E TO FORM S-8
GENERAL INSTRUCTION E INFORMATION
This registration statement on Form S-8 registers additional securities of
the same class as other securities of the registrant for which a registration
statement of the registrant on Form S-8 relating to the same employee benefit
plan is effective. Pursuant to General Instruction E to Form S-8, the contents
of the registrant's registration statement on Form S-8 No. 333-139169, as filed
with the Securities and Exchange Commission (the "Commission") on May 2, 2007,
is hereby incorporated by reference.
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 NextWave Wireless Inc. 2007 New Employee Stock Incentive Plan
(incorporated by reference to Exhibit 99.5 to the Registrant's
Form S-8 filed with the Commission on May 2, 2007)
(Registration No. 333-13169).
99.2 Amendment to NextWave Wireless Inc. 2007 New Employee Stock
Incentive Plan (filed herewith).
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Registration Statement on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto authorized, in the city of San Diego, California, on July
13, 2007.
NEXTWAVE WIRELESS INC.
By: /s/ Frank A. Cassou
--------------------------------
Frank A. Cassou
Executive Vice President -
Corporate Development and
Chief Legal Counsel
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POWER OF ATTORNEY AND SIGNATURES
Know all by these presents, that each individual whose signature appears
below constitutes and appoints each of Frank A. Cassou, George C. Alex and
Roseann Rustici, or any of them, each acting alone, his or her true and lawful
attorney-in-fact and agent with full powers of substitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement on Form S-8, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be in and about the premises, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
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
--------------------------
Francis J. Harding (Principal Accounting Officer)
/s/ James C. Brailea Director July 13, 2007
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James C. Brailean
/s/ William Jones Director July 13, 2007
--------------------------
William Jones
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/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
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
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 NextWave Wireless Inc. 2007 New Employee Stock Incentive Plan
(incorporated by reference to Exhibit 99.5 to the Registrant's
Form S-8 filed with the Commission on May 2, 2007)
(Registration No. 333-13169).
99.2 Amendment to NextWave Wireless Inc. 2007 New Employee Stock
Incentive Plan (filed herewith).
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