With the commencement of the California Utility Pole Authority … Mobilitie … Interstate Transport and Broadband build in the City of Los Angeles, this seems like a good time to give you a tour of what [insert your favorite nom de plume here] is actually building on City of Los Angeles street lights.
In words, it goes like this: From an existing or new Sprint site or Mobilitie somewhere a radio signal is transmitted outwards. Nearby Mobilitie sites pick up the signal with a device called a UE relay (User Equipment Relay). From there the signal is sent to a remote radio unit (“RRU”), which converts the incoming signal from the UE Relay to Sprint frequencies. From the RRU, two coaxial cables connect the RRU to the antenna on Sprint’s frequency, and on to Sprint’s customers. There is also an electrical power distribution box to power the UE Relay and RRU. In the case of the City of Los Angeles, electrical power is tapped off of the street lighting power circuit. Where that’s not an option, Mobilitie may have to install a power company electrical meter somewhere on the light standard, or nearby in a meter pedestal.
Here’s what a newly installed Mobilitie (sorry, Interstate Transport and Broadband) site looks like in Los Angeles, with call-outs to identify what I’ve described above. If you’d like to see more photos of new Mobilitie sites in Los Angeles, visit CellTowerPhotos.com.
To nobody’s surprise, the FCC has approved the Softbank+(Sprint+Clearwire) deals. Here’s the press release just sent by Sprint…or should I say, SoftSprint:
Federal Communications Commission Approves SoftBank’s Investment in Sprint and Sprint’s Acquisition of Clearwire
OVERLAND PARK, Kan., BELLEVUE, Wash. & TOKYO (BUSINESS WIRE), July 05, 2013 – The Federal Communications Commission announced today that it has voted unanimously to approve the applications filed by SoftBank (TSE: 9984), Sprint (NYSE: S) and Clearwire (NASDAQ: CLWR) related to their transactions announced last year.
This decision completes all Federal government reviews of both SoftBank’s investment in Sprint and Sprint’s acquisition of Clearwire. Sprint’s shareholders approved the SoftBank transaction with Sprint on June 25th. Clearwire’s shareholders are scheduled to vote on the Sprint transaction with Clearwire, which has been recommended by Clearwire’s Board of Directors, on July 8th.
“We would like to thank Acting Chairwoman Clyburn, Commissioners Rosenworcel and Pai, as well as the staff of the FCC for their thorough review of these transactions,” said Sprint CEO Dan Hesse. “Just two years ago, the wireless industry was at the doorstep of duopoly, but with these transformative transactions, we are one step closer to a stronger Sprint which will better serve consumers, challenge the market share leaders and drive innovation in the American economy.”
“We appreciate the forward thinking, consumer focused stance the FCC has taken by approving the proposed transaction. As the company that built America’s first nationwide 4G network, Clearwire looks forward to joining Sprint and deploying an even faster and richer 4G experience for consumers across the country,” said Clearwire CEO and President Erik Prusch. “This is the right transaction at the right time to best deploy Clearwire’s spectrum to create a broadband network that will bring additional services and alternatives to wireless consumers.”
“The FCC’s thoughtful review and approval of these transactions represents an important step toward creating a more competitive U.S. wireless marketplace,” said SoftBank Chairman & CEO Masayoshi Son. “SoftBank’s investment in Sprint will bring innovation and increased customer focus, which will enable us to begin creating a true competitor in a market dominated by two companies. We look forward to leveraging the significant talent and resources of the New Sprint to bring innovation and better service to U.S. consumers.”
Sprint, Clearwire and SoftBank anticipate that the transactions will close in early July 2013, subject to the remaining closing conditions.
According to a Bloomberg report today citing unnamed sources, two of the three sitting FCC Commissioners have approved the big TwoFer: Clearwire’s takeover by Sprint, and Sprint’s sale of itself to Softbank.
The decision, if in fact it has been made, has not yet been posted to the FCC’s web site.
Presuming the truth of the Bloomberg story, no one should be surprised by this massive frequency consolidation given Sprint’s Network Vision project. These deals have been about access to bandwidth.
It pulled the big plug. Flipped off the lights. Took its toys and went home.
No more beep-beep-beep. No more programming of weird handset codes to identify group users.
In fact, no more service if you have a Sprint iDEN boat anchor and didn’t switch over to Sprint or another carrier prior to 60 seconds ago.
Hey, Sprint warned you this was happening, so don’t act surprised. That said, if you woke up today and find your beep-beep-beep going annnnnn-annnnnn-annnnnn, well, good luck.
Goodbye Nextmai ®… goodbye Chirp®… goodbye Priority Connect®…goodbye all those other cute Nextel registered trademarks!
Sprint reports that about 98% of its shareholders voted for the deal. The FCC approval seems like it will be pro forma.
Now, with the SoftSprint and SprintClear deals done, I suspect Dan Hesse is considering when and how he’ll exit SoftSprint, if he hasn’t already already worked out the details of that deal with Masayoshi Son.
Actually, I’d bet Dan’s exit plan is already set down on paper, and it says something like, ‘Dan, thanks for the hard work. We’ll have you stay on as a special consultant to SoftSprint for the next three years…yeah, we’ll call it a consulting gig. You’ll start about two weeks after the FCC approves the deal. Something like $5M a year, plus a really nice parting gift.’
At least Dan will be able to keep his SAG-AFTRA membership. Maybe part of the consulting gig will be that Dan keeps on making commercials for his new boss.
Here’s Sprint’s press release from this morning:
OVERLAND PARK, Kan. (BUSINESS WIRE), June 25, 2013 – Sprint Nextel Corporation (“Sprint”) (NYSE: S) shareholders voted today to approve and adopt the previously announced merger agreement providing for a substantial investment by SoftBank Corp. (“SoftBank”) (TSE: 9984). Sprint shareholders overwhelmingly approved the deal, with approximately 98 percent of the votes cast at today’s special shareholders meeting voting in favor of the merger agreement, representing approximately 80 percent of Sprint’s outstanding common stock as of April 18, 2013, the record date for the special meeting.
“Today is a historic day for our company, and I want to thank our shareholders for approving this transformative merger agreement,” said Sprint CEO Dan Hesse. “The transaction with SoftBank should enhance Sprint’s long-term value and competitive position by creating a company with greater financial flexibility.”
Consummation of the Sprint-SoftBank transaction remains subject to the receipt of the Federal Communications Commission approval. Sprint and SoftBank anticipate the merger will be consummated in early July 2013.
As previously announced, Sprint stockholders will have the option to elect to receive cash in the amount of $7.65 or one of New Sprint common stock for each share of Sprint common stock owned by them (subject to the previously disclosed proration provisions in the merger agreement). The total cash consideration available to Sprint stockholders is $16.64 billion. Pro forma for the transaction, the current Sprint stockholders’ resulting equity ownership in a stronger, more competitive New Sprint will be 22 percent while SoftBank will own approximately 78 percent. Sprint and SoftBank have previously mailed to Sprint shareholders forms of election and related instructions and established 5:00 p.m., New York time, on July 5, 2013 as the election deadline, subject to extension.
So, in the latest chapter of the SoftSprint-Clearwire-Dish matrimonial saga, it looks like SoftSprint will indeed take Clearwire to the alter.
Yesterday, Sprint (which had sued Clearwire just three days before to block the sale to Dish) decided to up its offer from $3.40 to $5.00, topping Dish’s offer of $4.40.
Just to make sure that Clearwire doesn’t take the ring off the finger one more time, Sprint’s amended marriage proposal contract with Clearwire provides for Clearwire to pay Sprint a break-up fee of $115 million should Clearwire get cold feet…again.
I have to imagine that there were some very interesting conversations between Japan and Kansas about what would happen to the value of the SoftSprint deal if Clearwire went off and married Dish. Soft needs Clearwire’s frequency allotments to make its Sprint purchase ‘reasonable’…it didn’t need cash nearly as much. Soft so much as signed that point exactly when it made noises yesterday about making a run for T-Metro if the SofSprint deal collapses.
Lest anyone be unclear:
Clearwire is all about licensed frequencies for LTE; not WiMax, facilities or customers;
Sprint only makes sense with Clearwire’s licensed frequencies; forget about the cash;
SoftSprint only makes sense with Sprint’s sites being upgraded to Network Vision and getting control of Clearwire’s licensed frequencies.
It didn’t take long for Dish to fire off a public response to Sprint’s compliant to block Dish’s takeover of Clearwire. Here’s what Dish had to say, short and sweet:
“Sprint’s lawsuit is a transparent attempt to divert attention from its failure to deal fairly with Clearwire’s shareholders, as well as to exploit its majority position to block Clearwire’s shareholders from receiving a fair price for their shares. DISH is confident that its superior offer, which has been unanimously recommended by the Clearwire Board, including the majority appointed by Sprint, will be upheld and Clearwire shareholders will be free to realize the 29 percent premium represented by the DISH offer.”
I’m already getting my popcorn ready to have at hand when I read Dish’s answer to Sprint’s complaint. This has all the makings of a great Lifetime Channel movie.
Perhaps the new corporate logo? Not if Sprint has its way in court. (Yeah, this logo is my parody.)
Sprint today filed suit in the Court of Chancery in Delaware to block the sale of Clearwire to to Dish Network. The 45-page verified complaint aims to not only stop the sale, but to ding Dish for tortious interference with Sprint’s rights under its merger agreement with Clearwire.
Most telling in the complaint is Sprint’s assertion that “DISH wants spectrum.” (para. 3.) How very true of both suitors.
Sprint’s complaint is summarized in the press release below.
Below the press release is the “Nature of the Action” section of the complaint. Below that is a link to the 45-page complaint.
As of the initial posting of this message, neither Dish nor Clearwire has yet released any public comments on Sprint’s complaint. I’m sure Dish’s reply will be most entertaining.
June 17, 2013
Sprint Files Lawsuit Against DISH Network Corporation and Clearwire Corporation Citing the Illegality of the DISH Tender Offer for Clearwire
If Completed, Tender Offer Would Violate Delaware Corporate Law, Sprint’s Bargained-For Rights and the Rights of the Strategic Investors Under the Charter and Equity Holders Agreement
Lawsuit Contends that the Tender Offer is Structurally and Actionably Coercive
OVERLAND PARK, Kan. (BUSINESS WIRE), June 17, 2013 – Sprint (NYSE:S) announced today that it has filed a complaint in the Delaware Court of Chancery against DISH Network Corporation (NASDAQ:DISH) and Clearwire Corporation (NASDAQ: CLWR) asking the Court to prevent the consummation of the DISH tender offer for Clearwire. Sprint believes the transaction violates Delaware law and the rights of both Sprint and Clearwire’s other strategic investors under Clearwire’s charter and under the Equity Holders Agreement (“EHA”). In addition to seeking to enjoin the tender offer, Sprint’s lawsuit seeks to rescind certain parts of the tender offer agreement and seeks declaratory, injunctive, compensatory and other relief.
In its complaint, Sprint outlines why DISH’s tender offer violates the rights of Sprint and other Clearwire stockholders under Clearwire’s governing documents and Delaware law. It also details how DISH has repeatedly attempted to fool Clearwire’s shareholders into believing its proposal was actionable in an effort to acquire Clearwire’s spectrum and to obstruct Sprint’s transaction with Clearwire. Among the points the suit makes:
Sprint and the strategic investors invested billions of dollars in cash and assets to form Clearwire. They entered into a shareholders agreement that established their governance rights (the Equity Holders Agreement (EHA)) as to nominating and electing directors, amending the charter and bylaws, issuance of stock, and other governance matters.
Under Clearwire’s charter and the EHA, the DISH Tender Offer (together with the Investors Rights Agreement (IRA) and a related Note Purchase Agreement (the “NPA”)), cannot be completed without the approval of holders of at least 75% of Clearwire’s outstanding voting securities, nor without the approval of Comcast Corp., neither of which approvals have been obtained. Completion of the tender offer without such approvals is unlawful.
DISH’s Tender Offer, if completed, would violate Delaware corporate law and Sprint’s and the strategic investors rights under the Charter and EHA by vesting DISH with a veto power over fundamental corporate events that Delaware law places in the control of the directors or shareholders and that the EHA details how many directors and shareholders are required for action.
The IRA requires Clearwire to place and maintain a number of DISH designees on its board of directors in breach of the provisions in the EHA permitting Sprint to nominate 7 directors, the Significant Investors Group to nominate several other directors, and the nominating committee to nominate the remainder.
The IRA violates the Charter by purporting to grant DISH pre-emptive rights that are explicitly prohibited by the Charter.
The DISH Tender Offer is unlawfully coercive because it threatens to leave non-tendering shareholders holding shares in a company subject to governance deadlocks or substantial damage awards to DISH if Clearwire is unable to deliver on the unenforceable promises set forth in the IRA and NPA.
Sprint is asking for Clearwire’s Charter and the EHA to be enforced by not letting Clearwire sign the IRA or the NPA and by enjoining the tender offer.
Here’s the “Nature of the Action” section of Sprint’s complaint:
1. This action seeks declaratory, injunctive, compensatory and other relief arising from a tender offer launched by DISH for the stock of Clearwire (the “DISH Tender Offer”). The DISH Tender Offer is structurally and actionably coercive and is conditioned upon an agreement with Clearwire that is set to be approved by the Clearwire board of directors (the “Clearwire Board”) that violates and converts the rights of Sprint and other Clearwire stockholders under Clearwire’s governing documents and Delaware law. This action also seeks compensatory relief for DISH’s tortious interference with Clearwire’s performance of its merger agreement with Sprint.
2. Sprint has been a substantial stockholder of Clearwire since its formation in 2008. After lengthy negotiations, on December 17, 2012, Sprint and Clearwire announced a merger agreement whereby Sprint would acquire the outstanding Clearwire stock that it does not already own (the “Sprint Merger Agreement”). Sprint and Clearwire also entered into a financing agreement under which Sprint would provide Clearwire with much-needed financing (the “Interim Financing Agreement”).
3. DISH wants spectrum. Clearwire has spectrum but has struggled financially. Before entering into the Sprint Merger Agreement, Clearwire sought to engage DISH in discussions, but DISH refused to negotiate and did not make a meaningful proposal. After the announcement of the Sprint Merger Agreement, however, DISH feared that by solving Clearwire’s financial problems, a combination of Sprint and Clearwire would eliminate DISH’s negotiating leverage to acquire spectrum on the cheap, so DISH embarked on a plan to tank the merger.
4. Because the Sprint Merger Agreement was conditioned on the approval of a majority of Clearwire’s minority shares, DISH’s strategy focused on fooling Clearwire’s minority stockholders into believing they might obtain a better price from a transaction with DISH. Thus, starting in late December 2012, DISH began making a series of public proposals to make tender offers for a minority position in Clearwire at prices higher than that offered under the Sprint Merger Agreement – in exchange for Clearwire selling DISH key spectrum assets at a bargain price. DISH also insisted that it obtain substantial governance rights from Clearwire. The Clearwire Board rightly recognized that its fiduciary duties did not permit it to sell key assets at a discount in exchange for a tender offer that would benefit only a minority of stockholders, and also rightly recognized that it could not grant DISH the governance rights DISH sought without violating the rights of Sprint and other Clearwire stockholders under Clearwire’s governing documents and Delaware law. So Clearwire repeatedly rejected DISH’s proposals as “not actionable.” DISH appeared to give up on Clearwire and instead turned its attention to making a public proposal to acquire Sprint. Nevertheless, DISH’s repeated public proposals to Clearwire had fooled many Clearwire minority stockholders into believing a higher price might be available from DISH.
5. On May 29, 2013, just two days before Clearwire stockholders were set to vote on Sprint’s proposed merger with Clearwire (the “Sprint-Clearwire Merger”), DISH re-appeared with a publicly announced tender offer at a higher price – the DISH Tender Offer. The DISH Tender Offer was no longer conditioned upon a purchase of spectrum at a bargain price, but was still conditioned upon obtaining governance rights that Clearwire had previously recognized it had no power or right to give. Nevertheless, because DISH is successfully fooling Clearwire’s minority stockholders into voting against the Sprint-Clearwire Merger, leaving Clearwire with no solution to its looming financial crisis, the Clearwire Board panicked and its changed position.
6. Thus, Clearwire reversed course and intends to execute agreements containing the very same governance provisions that it previously recognized it could not legally grant. As described further below, Clearwire is set to enter into an Investor Rights Agreement (the “IRA”) and a Note Purchase Agreement (the “NPA”) with DISH that violate Sprint’s rights under an Equityholders’ Agreement entered into by Sprint, Clearwire and others in 2008 (the “EHA”) and also violate Delaware law and Clearwire’s governing documents – facts previously acknowledged by the Clearwire Board and communicated to DISH.
7. Execution and delivery of the IRA is a condition to the DISH Tender Offer. The IRA purports to grant DISH governance rights, including the purported right to force the Clearwire Board to nominate a slate of directors with guaranteed DISH representation, the purported right to veto amendments to Clearwire’s charter (the “Clearwire Charter”) and bylaws, the purported right to veto any change of control of Clearwire, and purported preemptive rights over any new issuance of Clearwire securities, with certain exceptions. The IRA is invalid and unenforceable because it violates Sprint’s rights under Delaware law and the EHA, which is incorporated into the Clearwire Charter.
8. The NPA is also invalid and unenforceable. Clearwire intends to enter into the NPA in connection with the DISH Tender Offer. The NPA purports to compel Clearwire to issue either exchangeable or non-exchangeable notes, with a structure designed to coerce Sprint to vote to amend the Clearwire Charter. The issuance of exchangeable notes by Clearwire would not be permitted without an amendment to the Clearwire Charter, which could not be accomplished without Sprint’s approval. The nonexchangeable notes (that Clearwire would issue to DISH if Sprint does not approve an amendment to the Clearwire Charter) pay an enormous 12% interest rate, require a commitment fee payable in cash, and carry priority in bankruptcy. Combined with DISH’s other holdings of Clearwire debt, the non-exchangeable notes would give DISH the ability to drive Clearwire into bankruptcy so DISH can take control of Clearwire’s spectrum assets. Thus, not only are Sprint and the other parties to the EHA being deprived of their preemptive rights under the EHA, but Sprint is also being coerced into amending the Clearwire Charter to allow for the issuance of more Clearwire shares in order to avoid the issuance of the non-exchangeable notes.
9. All that is bad enough. But the DISH Tender Offer is also structured to coerce Clearwire’s minority stockholders, to the detriment of Sprint, to tender their stock to DISH or else be left holding stock in a corporation that will be handicapped by unlawful corporate governance restrictions, onerous debt provisions, and potentially be subject to massive money damages claims payable to DISH – an entity which has everything to gain from a failure of Clearwire. Because Sprint owns a majority of Clearwire stock and, as stated, is not a seller, the DISH Tender Offer cannot be followed by a back-end merger with the same consideration and therefore is structurally coercive.
10. As a result, this action seeks equitable relief to prevent consummation of the DISH Tender Offer, and to enjoin or rescind the execution and delivery of the IRA and the NPA.
11. This action also seeks compensatory and other relief to remedy DISH’s wrongful interference with Sprint’s contractual rights, economic advantage and business relations. DISH intentionally and improperly interfered with the performance of the Sprint Merger Agreement and the Interim Financing Agreement between Clearwire and Sprint, thereby preventing performance, causing performance to be more expensive and burdensome, and ultimately threatening the wrongful termination of the Sprint Merger Agreement.
12. Defendants’ acts already have injured Sprint and Sprint’s rights which will further be irreparably injured without immediate relief from this Court.
Separately but related to the Clearwire deal, DISH Network announced earlier today the expiration last Friday of the mandatory waiting period under the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) in connection with the tender offer by DISH Acquisition Holding Corporation, a wholly-owned subsidiary of DISH, to purchase all outstanding shares of Class A Common Stock of Clearwire Corporation , including any shares of Class A Common Stock issued in respect of outstanding shares of Class B Common Stock, for $4.40 per share.
Perhaps the new corporate logo? (Yeah, this is a parody.)
For years I’ve been telling my clients that the relationship between Clearwire and Sprint is far from what Sprint has portrayed it to be.
No, Clearwire not a controlled entity or affiliate of Sprint, but rather an arms-length investment by Sprint in Clearwire. For a number of lease transactions over the past few years, this has been a REALLY BIG DEAL that savvy landlords and their counsel have used to reposition their lease negotiations with both Sprint and Clearwire.
Yesterday, Clearwire’s Board of Directors recommended that its shareholders pass on Sprint’s $3.40/share buyout offer in favor of Dish Network’s much sweeter deal at $4.40/share.
Clearwire’s press release yesterday highlights the Dish offer and Sprint’s inferior offer:
Clearwire Special Committee and Board of Directors Unanimously Recommend Stockholders Tender Into DISH Network $4.40 Per Share Tender Offer
DISH Offer is in Best Interest of Class A Stockholders
Files Schedule 14D-9 with SEC Recommending Stockholders Tender Their Shares Pursuant to DISH Tender Offer
Changes Recommendation to Against $3.40 Per Share Sprint Merger
Company Plans to Adjourn Special Meeting of Stockholders; Rescheduled Meeting to be Held June 24, 2013
BELLEVUE, Wash., June 12, 2013 (GLOBE NEWSWIRE) — Clearwire Corporation (Nasdaq:CLWR) (“Clearwire” or the “Company”) today announced that its board of directors, based on the unanimous recommendation of the Special Committee consisting of independent, non-Sprint-affiliated directors, has unanimously recommended that stockholders accept and tender into DISH Network Corporation’s (Nasdaq:DISH) (“DISH”) cash tender offer to acquire all outstanding common shares of Clearwire at the previously announced price of $4.40 per share. The DISH tender offer has been amended and now is currently set to expire at 12:00 midnight, Eastern time, at the end of July 2, 2013, unless extended or terminated in accordance with the terms and conditions of the offer. The Company’s board of directors, also based on the unanimous recommendation of the Special Committee, also unanimously recommended that stockholders now vote against the $3.40 per share Sprint merger and related matters.
The DISH tender offer is subject to various conditions, including the tender of more than 25% of the fully diluted voting stock in Clearwire and the expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act.
Pursuant to the discretionary authority granted to the chairman of the meeting by Clearwire’s bylaws, the Company plans to adjourn its Special Meeting of Stockholders, which is currently scheduled to be held at 10:30 a.m. Pacific time on Thursday, June 13, 2013, without conducting any business. The Company plans to reconvene the Special Meeting of Stockholders on Monday, June 24 at 9:00 a.m. Pacific time at the Kirkland Performing Arts Center, 350 Kirkland Avenue, Kirkland, Washington, 98033. The record date for stockholders entitled to vote at the Special Meeting remains April 2, 2013.
The Company today filed with the Securities and Exchange Commission (“SEC”) a Solicitation/Recommendation Statement on Schedule 14D-9 and also plans to file a supplement to its proxy statement, each of which explains the matters described in this press release in greater detail. Stockholders are encouraged to read the Schedule 14D-9 filing and proxy supplement, which will be available on the SEC’s website, www.sec.gov.
Evercore Partners is acting as financial advisor and Kirkland & Ellis LLP is acting as counsel to Clearwire. Centerview Partners is acting as financial advisor and Simpson Thacher & Bartlett LLP and Richards, Layton & Finger, P.A. are acting as counsel to Clearwire’s Special Committee. Blackstone Advisory Partners L.P. has advised the company on restructuring matters.
This should be causing some very loud rumblings at Softbank in Japan, and at Sprint’s HQ in Overland Park, Kansas. Very loud rumblings, indeed…
Breaking new: Dish Network offers $25.5 B to buy Sprint. This is a counter to Japan’s Softbankl offer of $20.1 B to buy 70% of Sprint. This effectively puts Clearwire back in play, too.
Don’t you love it when the game gets exciting? Yeah, me too!
Pretty, eh? Naw, I don’t think so, either.
