Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
April 4, 2007
Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549
Attn: Mr. Robert S. Littlepage
RE: NEXTWAVE WIRELESS INC.
CURRENT REPORT ON FORM 8-K
FILED MARCH 26, 2007
FILE NO. 001-33226
Ladies and Gentlemen:
On behalf of our client, NextWave Wireless Inc. (the "Company"), we are
transmitting herewith via the EDGAR system for filing with the Securities and
Exchange Commission (the "Commission") our response to the Staff's letter dated
March 29, 2007, regarding the Company's disclosure, in the above-referenced
Current Report on Form 8-K, of its intention to restate its financial results
for the first three quarters of 2006. Based on our telephonic discussions with
the Staff on April 2-3, 2007, we have also outlined below the Company's plan for
becoming current in its reporting obligations under the Securities Exchange Act
of 1934, as amended (the "1934 Act"). As you know, on March 30, 2007, the
Company timely filed its Annual Report on Form 10-K for the fiscal year ended
December 30, 2006 (the "2006 10-K"), which contains fully restated interim
unaudited condensed consolidated financial statements for the periods affected
by the restatement.
Set forth below in bold is the comment set forth in the Staff's letter.
Immediately following the Staff's comment is the Company's response.
1. WE NOTE THAT ON DECEMBER 29, 2006 A FORM S-1 (FILE NO. 333-139440) WAS
DECLARED EFFECTIVE. ADDITIONALLY, A FORM S-4 (FILE NO. 333-137388) WAS
DECLARED EFFECTIVE ON NOVEMBER 13, 2006. IN LIGHT OF THE PENDING
RESTATEMENT DISCLOSED IN YOUR FORM 8-K, PLEASE CONFIRM TO US THAT, TO THE
EXTENT THAT THERE IS CONTINUING ACTIVITY UNDER ANY REGISTRATION STATEMENT
FILED SUBJECT TO THE SECURITIES EXCHANGE ACT OF 1933, ALL ACTIVITY SHALL
CEASE UNTIL SUCH TIME AS THE REGISTRATION STATEMENT CAN BE AMENDED TO
INCLUDE COMPLETE AND ACCURATE FINANCIAL STATEMENTS FOR ALL PERIODS
REQUIRED BY THE FORM ON WHICH IT WAS FILED.
Securities and Exchange Commission
Division of Corporation Finance
April 4, 2007
Page 2
As confirmed orally to Ms. Kenya Wright Gumbs in our phone
discussions on April 2, 2007, the Company promptly suspended all
activity under its then-active registration statements filed
pursuant to the Securities Act of 1933, as amended (the "1933 Act")
upon the Company's March 23 announcement that it needed to restate
its financial results for the first three quarters of 2006 to
reflect a correction in its accounting for certain revenue contracts
and for the incorrect capitalization of certain engineering costs in
its PacketVideo Corporation subsidiary. Below we outline the
Company's registration statements filed pursuant to the 1933 Act as
well as the corrective filings the Company plans to make in
accordance with our conversations with the Staff:
o The Company maintains a Registration Statement on Form S-1
(the "Shelf Registration Statement") which was declared
effective by the Staff on December 29, 2006. The Shelf
Registration Statement registers the resale of the Company's
common stock issuable pursuant to the exercise of warrants
which were issued on November 13, 2006 in an exempt private
placement (the "Registrable Securities"). On March 23, 2007,
the Company notified all holders of the Registrable Securities
in writing of the suspension of the Shelf Registration
Statement and informed them that the Company would notify them
in writing when the Shelf Registration Statement and the
related prospectus were available for use. The Company plans
to amend the Shelf Registration Statement to include complete
and accurate financial statements for all periods required by
Form S-1. At such time, the suspension will be lifted.
o The Company maintains a Registration Statement on Form S-8
relating to its equity incentive plans. On March 23, 2007, the
Company suspended the use of its Registration Statement on
Form S-8. The Company intends to file a new Registration
Statement on Form S-8 incorporating by reference the Company's
2006 10-K, which contains fully restated financial information
for the first three quarters of 2006, as well as full-year
financial information which is unaffected by the restatement.
At or prior to the time such updated Registration Statement on
Form S-8 is filed, the Company will also file an amendment to
its Quarterly Report on Form 10-Q for the quarter ended
September 30, 3006. As discussed with the Staff, and the light
of the fact that the 2006 10-K contained the restated
quarterly disclosure described above, the Company will not
amend the Registration Statement on Form 10 of NextWave
Wireless LLC (containing financial information for the quarter
ended April 1, 2006) or the Quarterly Report on Form 10-Q for
the quarter ended June 30, 2006 of NextWave Wireless LLC.
NextWave Wireless LLC is a predecessor of NextWave Wireless
Inc. and filed a Form 15 with the Commission on November 13,
2006 to certify the termination of its obligation to file
periodic reports with the Commission pursuant to Rule
12g-4(a)(1)(i).
Securities and Exchange Commission
Division of Corporation Finance
April 4, 2007
Page 3
o As noted by the Staff, the Company filed a Registration
Statement on Form S-4 which was declared effective by the
Staff on November 13, 2006. The Form S-4 registered the shares
of NextWave Wireless Inc. issued in the merger of NextWave
Wireless LLC with and into a subsidiary of NextWave Wireless
Inc. This transaction was consummated on November 13, 2006,
and the limited liability company interests of all members of
NextWave Wireless LLC were automatically converted into shares
of common stock of NextWave Wireless Inc. on such date,
pursuant to the terms of the related merger agreement. Because
such Registration Statement is no longer in use, the Company
does not propose to amend it.
Securities and Exchange Commission
Division of Corporation Finance
April 4, 2007
Page 4
In connection with the Company's response to the comments of the
Securities and Exchange Commission, the Company hereby acknowledges that:
o the Company is responsible for the adequacy and accuracy of the
disclosure in the filing;
o Staff comments or changes to disclosure in response to Staff
comments do not foreclose the Commission from taking any action with
respect to the filing; and
o the Company may not assert staff comments as a defense in any
proceedings initiated by the Commission or any person under the
federal securities laws of the United States.
We would very much appreciate receiving the Staff's comments, if any, at
your earliest convenience. If it would expedite the review of the information
provided herein, please do not hesitate to call the undersigned at (212)
310-8239.
Sincerely yours,
/s/ Marita A. Makinen
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Marita A. Makinen
cc: Kenya Wright Gumbs