Verizon Merger Agreement | Note 2—Verizon Merger Agreement On April 9, 2017, we signed the Agreement and Plan of Merger with AT&T Inc. and Switchback Merger Sub Inc. (the “AT&T Merger Agreement”). Among the terms, the AT&T Merger Agreement allowed us to terminate the AT&T Merger Agreement if we received a better offer (as defined). If such an offer was accepted, we would be required to pay AT&T a termination fee of $38 million. We did receive better offers from Verizon. On May 11, 2017, we entered into an Agreement and Plan of Merger (the “Verizon Merger Agreement”) with Verizon, a Delaware corporation, and Waves Merger Sub I, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Verizon (“Merger Sub”). The Verizon Merger Agreement called for Verizon to pay the $38 million to AT&T on our behalf. Such payment was made by Verizon on May 11, 2017. Per Section 7.3(b) of the Verizon Merger Agreement, “Termination by the Company,” if we terminated the Verizon agreement as a result of receiving a Superior Proposal (as defined), before the Requisite Company Vote (as defined) being obtained, then we would repay Verizon the $38 million paid to AT&T. This contingency would create a liability to us only if we accepted a Superior Proposal. As of July 31, 2017, we did not receive and did not enter into an agreement for a Superior Proposal. The Requisite Company Vote occurred on August 2, 2017, as further noted below. As a result, we never owed the termination fee to Verizon. Pursuant to the Verizon Merger Agreement, among other things, Merger Sub will be merged with and into the Company (the “Merger”) with the Company being the surviving corporation of the Merger. At the effective time of the Merger (the “Effective Time”), each share of Class A common stock, par value $0.01 per share, of the Company and each share of Class B common stock, par value $0.01 per share, of the Company (collectively, the “Shares”) issued and outstanding immediately prior to the Effective Time (other than Shares owned by Verizon, Merger Sub or any other direct or indirect subsidiary of Verizon, and Shares owned by the Company or any direct or indirect subsidiary of the Company, and in each case not held on behalf of third parties) will be converted into the right to receive a number of validly issued, fully paid in and nonassessable shares of common stock of Verizon (“Verizon Shares”) equal to the quotient determined by dividing $184.00 by the five (5)-day volume-weighted average per share price ending on the second full trading day prior to the Effective Time, rounded to two decimal points, of Verizon Shares on the New York Stock Exchange (the “Verizon Share Value”) and rounded to the nearest ten-thousandth of a share (collectively and in the aggregate, the “Merger Consideration”). It is our intention that (i) the Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder, and (ii) the Verizon Merger Agreement shall constitute a plan of reorganization within the meaning of Treasury Regulation Section 1.368-2(g), as noted in the Verizon Merger Agreement. Our board of directors (the “Board”) has unanimously approved the Verizon Merger Agreement and determined that the Verizon Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company and its stockholders, and has resolved to recommend that our stockholders adopt the Verizon Merger Agreement. We agreed, subject to certain exceptions with respect to unsolicited proposals, not to directly or indirectly solicit competing acquisition proposals or to participate in any discussions concerning, or provide non-public information in connection with, any unsolicited acquisition proposals. However, the Board may, subject to certain conditions, change its recommendation in favor of approval of the Verizon Merger Agreement if, in connection with receipt of a superior proposal or an event occurring after the date of the Verizon Merger Agreement with respect to the Company, it determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law. On August 2, 2017, we held a special meeting of our stockholders to vote on a proposal to adopt the Verizon Merger Agreement. At such meeting, the proposal to adopt the Verizon Merger Agreement was approved with 89% of the votes entitled to be cast at the special meeting voting; and of the votes cast, approximately 99% of the votes cast in favor of the proposal to adopt the Verizon Merger Agreement. That approval terminated the Board’s ability to consider unsolicited acquisition proposals, change its recommendation of the Merger and terminate the Verizon Merger Agreement in connection therewith. The completion of the Merger is subject to the satisfaction or waiver of customary closing conditions, including: (i) receipt of regulatory approvals, including receipt of consent to the Merger from the FCC and the expiration or termination of any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR”); (ii) there being no law or injunction prohibiting consummation of the transactions contemplated under the Verizon Merger Agreement; (iii) the effectiveness of a registration statement on Form S-4 relating to the Merger; (iv) subject to specified materiality standards, the continuing accuracy of certain representations and warranties of each party; (v) continued compliance by each party in all material respects with its covenants; (vi) no event having occurred that has had, or would reasonably be likely to have, a Material Adverse Effect (as defined in the Verizon Merger Agreement) on the Company; (vii) receipt by the Company of an opinion from its tax counsel to the effect that the Merger will qualify as a “reorganization” for United States federal income tax purposes within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended; (viii) receipt of approval for listing the Verizon Shares on the New York Stock Exchange and the NASDAQ Global Select Market, subject to official notice of issuance; and (ix) the FCC consent referred to in clause (i) of this paragraph having become a Final Order (as defined in the Verizon Merger Agreement). We and Verizon filed notification and report forms under the HSR Act with the Federal Trade Commission and the Antitrust Division of the Department of Justice on May 19, 2017. The HSR Act waiting period expired on June 19, 2017, and the condition for HSR Act clearance was satisfied. On June 1, 2017, we and Verizon submitted applications to the FCC seeking consent to transfer control of the Company’s spectrum licenses to Verizon. For further discussion, see Note 14 – Commitments and Contingencies Regulatory Enforcement We have made customary representations and warranties in the Verizon Merger Agreement. The Verizon Merger Agreement also contains customary covenants and agreements, including covenants and agreements relating to the conduct of our business between the date of the signing of the Verizon Merger Agreement and the closing of the transactions contemplated under the Verizon Merger Agreement. The representations and warranties made by the Company are qualified by disclosures made in its disclosure schedules and SEC filings. None of the representations and warranties in the Verizon Merger Agreement survive the closing of the transactions contemplated by the Verizon Merger Agreement . The Verizon Merger Agreement contains certain termination rights for both us and Verizon including upon (i) an uncured breach by the other party which results in the failure of a closing condition, (ii) the failure to receive the approval of the Verizon Merger Agreement by the Company’s stockholders, and (iii) the Company’s Board changing its recommendation in favor of the Verizon Merger Agreement. The Verizon Merger Agreement further provides that, upon termination of the Verizon Merger Agreement, under certain circumstances following a change in recommendation by the Company in connection with its receipt of a superior proposal or due to an Intervening Event (as defined in the Verizon Merger Agreement), the Company may be required to pay Verizon a termination fee equal to $38 million. As a result of the adoption of the Verizon Merger Agreement at the special meeting of our stockholders on August 2, 2017, we never owed the termination fee to Verizon. Either the Company or Verizon may terminate the Verizon Merger Agreement if the completion of the Merger has not occurred on or before February 12, 2018 (as it may be extended as provided below, the “Termination Date”); provided, however, that if regulatory approvals have not been obtained and all other conditions to closing have been satisfied or waived, the Termination Date will automatically be extended for an additional one hundred and eighty days. In addition, Verizon is required to pay us an aggregate amount equal to $85 million (the “Parent Termination Fee”) in the event that the Merger has not closed by the extended Termination Date, and all conditions to closing other than receipt of FCC consent or HSR approval (or expiration of the waiting period under the HSR) have been satisfied or waived. In the event that the Verizon Merger Agreement is terminated other than as a result of Verizon’s breach or under circumstances in which Verizon is required to pay the Parent Termination Fee, we will be required to pay Verizon an amount equal to the AT&T Termination Fee (as defined in the Verizon Merger Agreement) paid by Verizon on our behalf. The Verizon Merger Agreement was attached as Exhibit 2.1 to the Form 8-K filed by the Company with the SEC on May 11, 2017 to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company, Verizon or Merger Sub, or to modify or supplement any factual disclosures about the Company or Verizon in their public reports filed with the SEC. The Verizon Merger Agreement includes representations, warranties and covenants of the Company, Verizon and Merger Sub made solely for purposes of the Verizon Merger Agreement and which may be subject to important qualifications and limitations agreed to by the Company, Verizon and Merger Sub in connection with the negotiated terms of the Verizon Merger Agreement. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to the Company’s or Verizon’s SEC filings or may have been used for purposes of allocating risk among the Company, Verizon and Merger Sub rather than establishing matters as facts. The foregoing summary of the Verizon Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Verizon Merger Agreement, which was attached as Exhibit 2.1 to the Form 8-K filed by the Company with the SEC on May 11, 2017. In addition, Howard Jonas, who has the right to vote a majority of the voting power of the Company’s common stock, entered into a voting agreement with Verizon concurrently with the entry into the Verizon Merger Agreement (the “Voting Agreement”). The Voting Agreement provided that Mr. Jonas (holding his Class A shares through a trust) would vote his Class A shares in the Company in favor of the Merger and the other transactions contemplated in the Verizon Merger Agreement, on the terms and subject to the conditions set forth in the Voting Agreement. The Voting Agreement would terminate automatically upon the earliest to occur of (i) the effective time of the Merger, (ii) the valid termination of the Verizon Merger Agreement pursuant to Article VII thereof, (iii) a change of recommendation by the Board in the event of a Superior Proposal or Intervening Event, (iv) any change being made to the terms of the Verizon Merger Agreement that would terminate the Trust’s or Mr. Jonas’s obligation to vote in favor of the Merger (on the terms and subject to the conditions in the Verizon Merger Agreement) or (v) February 12, 2018. We are not a party to the Voting Agreement. At the special meeting of our stockholders on August 2, 2017, Mr. Jonas voted his shares in the Company in favor of the Merger. The foregoing summary of the Voting Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of Voting Agreement, which is attached as Exhibit A to the Verizon Merger Agreement, which was attached as Exhibit 2.1 to the Form 8-K filed by us with the SEC on May 11, 2017 and is incorporated herein by reference. The Company has incurred costs totaling approximately $60,000 related to the Verizon Merger Agreement in Fiscal 2018. These costs were included in selling, general and administrative expenses. If the Merger is consummated, the Company estimates that it will incur various fees and expenses, which will be paid by Verizon. These fees and expenses include but are not limited to the following: 1. Payment to the FCC of 20% of the Proceeds (as defined in the FCC Consent Decree) (see Note 14 – Commitments and Contingencies Regulatory Enforcement 2. Financial advisor and legal fees - $63.9 million 3. Balance owed to PTPMS Communications, LLC (“PTPMS”) (see Note 14 – Commitments and Contingencies PTPMS 4. Balance owed to Former Chief Executive Officer of Straight Path Spectrum (the “Former SPSI CEO”) - $3.0 million (see Note 14 – Commitments and Contingencies Other Commitments and Contingencies 5. The following severance and retention payments to certain members of management: In connection with its entry into the AT&T Merger Agreement and then the Verizon Merger Agreement, the Company approved severance arrangements for Davidi Jonas (“Jonas”), the Company’s Chief Executive Officer and President, Jonathan Rand (“Rand”), the Company’s Chief Financial Officer and treasurer, Zhouyue (Jerry) Pi (“Pi”), the Company’s Chief Technology Officer, and David Breau (“Breau”), the Company’s General Counsel (each an “Executive”, and collectively, the “Executives”). The severance arrangements provide that if, within two years following the consummation of the Merger, the Company terminates an Executive’s employment without “Cause” or an Executive resigns for “Good Reason” (each such term to be defined in the severance agreements to be entered into prior to the consummation of the Merger), the Executive shall be entitled to receive a lump sum payment equal to one and one-half times (1.5x) (two and one-half times (2.5x) for Jonas) the sum of the Executive’s annual base salary and target bonus, subject to the execution of a release of claims. The Company also approved retention bonus payments for Jonas, Rand and Breau in the amounts of $1,800,000, $1,000,000 and $1,000,000, respectively. Subject to continued employment through the consummation of the Merger, such individuals shall be entitled to receive their retention bonus payment in a lump sum within thirty days following the consummation of the Merger. |