SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
[Rule 13d-101]
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 1)*
Clearwire Corporation |
(Name of Issuer)
Class A Common Stock |
(Title of Class of Securities)
18538Q105 |
(CUSIP Number)
Pamela E. Powers Executive Vice President, Secretary and Treasurer Crest Financial Limited JP Morgan Chase Tower 600 Travis, Suite 6800 Houston, TX 77002 Tel: (713) 222 69000 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
Copies to: Stephen M. Gill Kai Haakon E. Liekefett Vinson & Elkins LLP First City Tower 1001 Fannin Street, Suite 2500 Houston, TX 77002 Tel: (713) 758 2222
November 6, 2012 |
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (the Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
1 |
Names of Reporting Persons
Crest Financial Limited | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
WC, SC | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
35,883,649 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
35,883,649 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
35,883,649 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
5.19%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
PN |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Crest Investment Company | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
35,883,649 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
35,883,649 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
35,883,649 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
5.19%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
CO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Jamal and Rania Daniel Revocable Trust | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
35,883,649 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
35,883,649 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
35,883,649 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
5.19%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Jamal Daniel | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
United States of America | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
35,883,649 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
35,883,649 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
35,883,649 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
5.19%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
IN |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Rania Daniel | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
United States of America | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
35,883,649 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
35,883,649 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
35,883,649 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
5.19%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
IN |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
DTN LNG, LLC | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
WC | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
9,623,249 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
9,623,249 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
9,623,249 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
1.39%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
DTN Investments, LLC | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
WC, OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Delaware | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
9,873,249 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
9,873,249 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
9,873,249 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
1.42%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Daria Daniel 2003 Trust | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
3,291,083 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
3,291,083 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
3,291,083 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
0.47%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Thalia Daniel 2003 Trust | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
3,291,083 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
3,291,083 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
3,291,083 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
0.47%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Naia Daniel 2003 Trust | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
Texas | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
3,291,083 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
3,291,083 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
3,291,083 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
0.47%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
OO |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
John M. Howland | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
PF, OO | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
United States of America | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
23,000 | ||||
8 | Shared Voting Power
9,873,249 | |||||
9 | Sole Dispositive Power
23,000 | |||||
10 | Shared Dispositive Power
9,873,249 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
9,896,249 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
1.43%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
IN |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
1 |
Names of Reporting Persons
Eric E. Stoerr | |||||
2 | Check the Appropriate Box if a Member of a Group (See Instructions) (a) ¨ (b) ¨
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds (See Instructions)
PF | |||||
5 | Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or Place of Organization
United States of America | |||||
Number of Shares Beneficially Owned by Each Reporting Person With |
7 | Sole Voting Power
22,000 | ||||
8 | Shared Voting Power
0 | |||||
9 | Sole Dispositive Power
22,000 | |||||
10 | Shared Dispositive Power
0 | |||||
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
22,000 | |||||
12 |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) ¨
| |||||
13 |
Percent of Class Represented by Amount in Row (11)
0.00%(1) | |||||
14 |
Type of Reporting Person (See Instructions)
IN |
(1) | Based on the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012, there were 691,233,800 shares of Class A Common Stock outstanding as of October 23, 2012. |
This Amendment No. 1 (this Amendment) amends and supplements the Statement on Schedule 13D (the Schedule 13D) that was filed in respect of Clearwire Corporation (the Issuer) on May 22, 2012 by Crest Financial Limited (CFL), Crest Investment Company (CIC), the Jamal and Rania Daniel Revocable Trust (the Jamal and Rania Daniel Trust), Mr. Jamal Daniel, Mrs. Rania Daniel, DTN LNG, LLC (DTN LNG), DTN Investments, LLC (DTN Investments), the Daria Daniel 2003 Trust (the Daria Daniel Trust), the Thalia Daniel 2003 Trust (the Thalia Daniel Trust), the Naia Daniel 2003 Trust (the Naia Daniel Trust), Mr. John M. Howland, and Mr. Eric E. Stoerr. CFL, CIC, the Jamal and Rania Daniel Trust, Mr. Daniel, Mrs. Daniel, DTN LNG, DTN Investments, the Daria Daniel Trust, the Thalia Daniel Trust, the Nadia Daniel Trust, Mr. Howland and Mr. Stoerr are collectively referred to herein as the Reporting Persons. Items 3, 4, 5, 6 and 7 of the Schedule 13D are hereby amended and restated in their entirety as follows:
Item 3. | Source and Amount of Funds or Other Consideration. |
The Reporting Persons may be deemed to be the beneficial owner of, in the aggregate, 45,801,898 Shares (the Purchased Shares). The aggregate purchase price for the Purchased Shares collectively was approximately $68,241,110.42 (excluding brokerage commissions).
The source of funding for the purchase of 35,883,649 of the Purchased Shares by CFL was the general working capital of CFL. In addition, 435,412 of the Purchased Shares were received by CFL as consideration for certain assets sold to the Issuer pursuant to an Asset Purchase Agreement dated as of June 25, 2004 among the Issuer, Digital & Wireless Communications, LLC, Mr. Dee Osborne, Marshall Oman Exploration Inc., Mr. William R. Jenkins, and CFL (the Asset Purchase Agreement) (CFL had originally received 1,456,077 Shares under the Asset Purchase Agreement, but subsequently divested 1,020,665 Shares).
The source of funding for the purchase of 9,623,249 of the Purchased Shares by DTN LNG was the general working capital of DTN LNG.
The source of funding for the purchase of 250,000 of the Purchased Shares by DTN Investments was the general working capital of DTN Investments.
The source of funding for the purchase of 23,000 of the Purchased Shares by Mr. Howland were personal funds of Mr. Howland.
The source of funding for the purchase of 22,000 of the Purchased Shares by Mr. Stoerr were personal funds of Mr. Stoerr.
The other Reporting Persons did not purchase directly any of the Purchased Shares.
Item 4. | Purpose of Transaction. |
The Reporting Persons acquired and continue to hold the Purchased Shares reported in the Schedule 13D for investment purposes and in pursuit of their investment objectives.
On November 6, 2012, CFL sent a letter to Mount Kellett Capital Management LP (Mount Kellett), a significant stockholder of the Issuer (the Stockholder Letter), and issued a press release related thereto (the Press Release). A copy of the Stockholder Letter is attached hereto as Exhibit 2 and a copy of the Press Release is attached hereto as Exhibit 3.
The Stockholder Letter and the Press Release, among other things, commends Mount Kellett for sending a letter to the board of directors of the Issuer (the Board) on November 1, 2012. Like Mount Kellett, CFL is concerned about Sprint Nextel Corporations (Sprint Nextel) recent acquisition of majority control of the Issuer and the Issuers liquidity problems related to the Issuers build-out program. CFL believes that, in addition to the sale of excess spectrum proposed by Mount Kellett, the Board should immediately seek to raise capital through the offering and sale of additional common shares. CFL believes that raising capital would likely increase the value of Clearwires assets and thus the sales price of the excess spectrum. Furthermore, Crest believes that the Board should take immediate action to mitigate the danger of oppression of the minority stockholders rights and economic positions by the majority stockholder, Sprint Nextel.
Depending upon the Reporting Persons continued evaluation of the Issuer, the Reporting Persons may, among other things, (a) acquire additional securities of the Issuer or dispose of some or all of the Purchased Shares; (b) engage in active discussions with the Issuers management and members of the Board with respect to actions that might be taken by the Issuer to enhance stockholder value for all of the Issuers stockholders; (c) communicate with other stockholders of the Issuer regarding the management, operation, financing and corporate governance of the Issuer; and (d) take such other actions as the Reporting Persons may determine from time to time, including appropriate legal action as deemed necessary by the Reporting Persons.
Except as set forth above, the Reporting Persons have no present plans or proposals which relate to or would result in any of the transactions required to be described in Item 4 of Schedule 13D.
The descriptions of the Stockholder Letter and the Press Release herein are qualified in their entirety by reference to the copies of the Stockholder Letter and the Press Release that are attached hereto as Exhibit 2 and Exhibit 3.
Item 5. | Interest in Securities of the Issuer. |
(a) The Reporting Persons may be deemed to be the beneficial owner of, in the aggregate, 45,801,898 Purchased Shares, representing approximately 6.62% of the outstanding Shares based upon the 691,233,800 Shares stated to be outstanding as of October 23, 2012 according to the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2012.
CFL may be deemed to be the beneficial owner of 35,883,649 of the Purchased Shares because CFL is the direct owner of 28,971,311 of the Purchase Shares.
CIC may be deemed to be the beneficial owner of 35,883,649 of the Purchased Shares because CIC is the general partner of CFL.
The Jamal and Rania Daniel Trust may be deemed to be the beneficial owner of 35,883,649 of the Purchased Shares because the Jamal and Rania Daniel Trust owns a 100% interest in CIC and a 99% interest in CFL.
Mr. Daniel may be deemed to be the beneficial owner of 35,883,649 of the Purchased Shares because Mr. Daniel is (i) the trustee under the Jamal and Rania Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, and (ii) a grantor under the Jamal and Rania Daniel Trust with the joint power to revoke such trust.
Mrs. Daniel may be deemed to be the beneficial owner of 35,883,649 of the Purchased Shares because Mrs. Daniel is a grantor under the Jamal and Rania Daniel Trust with the joint power to revoke such trust.
DTN LNG may be deemed to be the beneficial owner of 9,623,249 of the Purchased Shares because DTN LNG is the direct owner of 9,623,249 of the Purchase Shares.
DTN Investments may be deemed to be the beneficial owner of 9,873,249 of the Purchased Shares because DTN Investments is (i) the owner of a 100% interest in DTN LNG and (ii) the direct owner of 250,000 of the Purchased Shares.
The Daria Daniel Trust may be deemed to be the beneficial owner of 3,291,083 of the Purchased Shares because the Daria Daniel Trust owns a 33 1/3% interest in DTN Investments.
The Thalia Daniel Trust may be deemed to be the beneficial owner of 3,291,083 of the Purchased Shares because the Thalia Daniel Trust owns a 33 1/3% interest in DTN Investments.
The Naia Daniel Trust may be deemed to be the beneficial owner of 3,291,083 of the Purchased Shares because the Naia Daniel Trust owns a 33 1/3% interest in DTN Investments.
Mr. Howland may be deemed to be the beneficial owner of 9,896,249 of the Purchased Shares because Mr. Howland is (i) the trustee under the Daria Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, (ii) the trustee under the Thalia Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, (iii) the trustee under the Naia Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, and (iv) the direct owner of 23,000 of the Purchased Shares.
Mr. Stoerr may be deemed to be the beneficial owner of 22,000 of the Purchased Shares because Mr. Stoerr is the direct owner of 22,000 of the Purchase Shares.
To the best of the Reporting Persons knowledge, except for Mr. Howland and Mr. Stoerr, none of the persons named on Schedule A hereto may be deemed to be the beneficial owner of any Shares.
(b) CFL may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 35,883,649 of the Purchased Shares because CFL is the direct owner of those Purchase Shares.
CIC may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 35,883,649 of the Purchased Shares because CIC is the general partner of CFL.
The Jamal and Rania Daniel Trust may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 35,883,649 of the Purchased Shares because the Jamal and Rania Daniel Trust owns a 100% interest in CIC and a 99% interest in CFL.
Mr. Daniel may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 35,883,649 of the Purchased Shares because Mr. Daniel is (i) the trustee under the Jamal and Rania Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, and (ii) a grantor under the Jamal and Rania Daniel Trust, with the joint power to revoke such trust.
Mrs. Daniel may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 35,883,649 of the Purchased Shares because Mrs. Daniel is a grantor under the Jamal and Rania Daniel Trust with the joint power to revoke such trust.
DTN LNG may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 9,623,249 of the Purchased Shares because DTN LNG is the direct owner of 9,623,249 of the Purchase Shares.
DTN Investments may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 9,873,249 of the Purchased Shares because DTN Investments is (i) the owner of a 100% interest in DTN LNG and (ii) the direct owner of 250,000 of the Purchased Shares.
The Daria Daniel Trust may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 3,291,083 of the Purchased Shares because the Daria Daniel Trust owns a 33 1/3% interest in DTN Investments.
The Thalia Daniel Trust may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 3,291,083 of the Purchased Shares because the Thalia Daniel Trust owns a 33 1/3% interest in DTN Investments.
The Naia Daniel Trust may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 3,291,083 of the Purchased Shares because the Naia Daniel Trust owns a 33 1/3% interest in DTN Investments.
Mr. Howland may be deemed to have the shared power to vote or direct the vote, and the shared power to dispose or direct the disposition of, 9,873,249 of the Purchased Shares because Mr. Howland is (i) the trustee under the Daria Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, (ii) the trustee under the Thalia Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities, and (iii) the trustee under the Naia Daniel Trust, with the power to vote or direct the vote, and the power to dispose or direct the disposition of, securities. Mr. Howland may be may be deemed to have the sole power to vote or direct the vote, and the sole power to dispose or direct the disposition, 23,000 of the Purchased Shares because Mr. Howland is the direct owner of 23,000 of the Purchased Shares.
Mr. Stoerr may be deemed to have the sole power to vote or direct the vote, and the sole power to dispose or direct the disposition of, 22,000 of the Purchased Shares because Mr. Stoerr is the direct owner of 22,000 of the Purchase Shares.
(c) Except as set forth on Schedule B hereto, neither the Reporting Persons nor, to the best of the Reporting Persons knowledge, any person named on Schedule A hereto, has effected any transaction in any Shares during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Other than Asset Purchase Agreement as described in Item 3 hereof (which has been fully performed by the parties thereto in 2004), the Joint Filing Agreement attached hereto as Exhibit 1, the Stockholder Letter attached hereto as Exhibit 2 and the Press Release attached hereto as Exhibit 3, neither the Reporting Persons nor, to the best of the Reporting Persons knowledge, any person named on Schedule A hereto, has any contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer, including but not limited to, transfer or voting of any of the securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.
Item 7. | Material to be Filed as Exhibits. |
The following documents are filed as exhibits:
Exhibit |
Exhibit Name | |
Exhibit 1 | Joint Filing Agreement dated as of November 6, 2012, among Crest Financial Limited, Crest Investment Company, the Jamal and Rania Daniel Revocable Trust, Mr. Jamal Daniel, Mrs. Rania Daniel, DTN LNG, LLC, DTN Investments, LLC, the Daria Daniel 2003 Trust, the Thalia Daniel 2003 Trust, the Naia Daniel 2003 Trust, Mr. John M. Howland, and Mr. Eric E. Stoerr | |
Exhibit 2 | Letter to Mount Kellet Capital Management LP by Crest Financial Limited dated as of November 6, 2012 | |
Exhibit 3 | Press Release by Crest Financial Limited dated as of November 6, 2012 |
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: November 6, 2012
CREST FINANCIAL LIMITED | ||||
by | /s/ Pamela E. Powers |
|||
Name: Pamela E. Powers | ||||
Title: Executive Vice President, Secretary and Treasurer | ||||
CREST INVESTMENT COMPANY | ||||
by | /s/ Pamela E. Powers |
|||
Name: Pamela E. Powers | ||||
Title: Executive Vice President, CFO and Treasurer | ||||
JAMAL AND RANIA DANIEL REVOCABLE TRUST | ||||
by | /s/ Jamal Daniel |
|||
Name: Jamal Daniel | ||||
Title: Trustee | ||||
JAMAL DANIEL | ||||
by | /s/ Jamal Daniel |
|||
Name: Jamal Daniel | ||||
RANIA DANIEL | ||||
by | /s/ Rania Daniel |
|||
Name: Rania Daniel |
DTN LNG, LLC | ||
by | /s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Manager, President, Secretary and Treasurer | ||
DTN INVESTMENTS, LLC | ||
by | /s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Manager, President, Secretary and Treasurer | ||
DARIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
THALIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
NAIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
JOHN M. HOWLAND | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
ERIC E. STOERR | ||
by | /s/ Eric E. Stoerr | |
Name: Eric E. Stoerr |
EXHIBIT INDEX
Exhibit |
Exhibit Name | |
Exhibit 1 | Joint Filing Agreement dated as of November 6, 2012, among Crest Financial Limited, Crest Investment Company, the Jamal and Rania Daniel Revocable Trust, Mr. Jamal Daniel, Mrs. Rania Daniel, DTN LNG, LLC, DTN Investments, LLC, the Daria Daniel 2003 Trust, the Thalia Daniel 2003 Trust, the Naia Daniel 2003 Trust, Mr. John M. Howland, and Mr. Eric E. Stoerr | |
Exhibit 2 | Letter to Mount Kellet Capital Management LP by Crest Financial Limited dated as of November 6, 2012 | |
Exhibit 3 | Press Release by Crest Financial Limited dated as of November 6, 2012 |
SCHEDULE A
EXECUTIVE OFFICERS AND DIRECTORS OF CERTAIN REPORTING PERSONS
The following is a list of the executive officers and directors of certain Reporting Persons, setting forth the present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted for each such person. The current business address of each such person is JP Morgan Chase Tower, 600 Travis, Suite 6800, Houston, TX 77002. All executive officers and directors listed below are citizens of the United States of America.
Crest Financial Limited | ||
Name |
Present Position | |
Crest Investment Company | General Partner | |
The Jamal and Rania Revocable Trust | Sole Limited Partner | |
Jamal Daniel | President | |
Pamela E. Powers | Executive Vice President, Secretary and Treasurer | |
David K. Schuhmacher | General Counsel | |
Crest Investment Company | ||
Name |
Present Position | |
The Jamal and Rania Revocable Trust | Sole Shareholder | |
Jamal Daniel | Sole Director and President | |
Pamela E. Powers | Executive Vice President, CFO and Treasurer | |
John M. Howland | Executive Vice President | |
Eric E. Stoerr | Senior Vice President of Energy | |
Michelle Upton | Vice President | |
Sonny Hudson | Vice President | |
Marie Vajdak | Secretary | |
DTN LNG, LLC | ||
Name |
Present Position | |
DTN Investments, LLC | Sole Member | |
Pamela E. Powers | Manager, President, Secretary and Treasurer | |
DNT Investments, LLC | ||
Name |
Present Position | |
Daria Daniel 2003 Trust | Member | |
Thalia Daniel 2003 Trust | Member | |
Naia Daniel 2003 Trust | Member | |
Pamela E. Powers | Manager, President, Secretary and Treasurer |
SCHEDULE B
CERTAIN INFORMATION REQUIRED BY ITEM 5 OF SCHEDULE 13D
(c) During the past 60 days, the Reporting Persons purchased Shares in open market transactions as indicated below. The price per Share excludes brokerage commissions.
Date of Transaction |
Identity of Purchaser |
Amount of Shares | Price per Share | |||||||
10/02/2012 |
Crest Financial Limited | 277,703 | $ | 1.29001 | ||||||
10/04/2012 |
Crest Financial Limited | 21,900 | $ | 1.30000 | ||||||
10/08/2012 |
Crest Financial Limited | 481,600 | $ | 1.30000 | ||||||
10/09/2012 |
Crest Financial Limited | 2,780,000 | $ | 1.29968 | ||||||
10/10/2012 |
Crest Financial Limited | 1,503,897 | $ | 1.29957 | ||||||
11/05/2012 |
Crest Financial Limited | 1,847,238 | $ | 2.21630 |
Exhibit 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Class A Common Stock of Clearwire Corporation and further agree that this Joint Filing Agreement be included as an Exhibit to such joint filings. In evidence thereof, the undersigned, being duly authorized, have executed this Joint Filing Agreement this 6th day of November, 2012.
CREST FINANCIAL LIMITED | ||
by | /s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Executive Vice President, Secretary and Treasurer | ||
CREST INVESTMENT COMPANY | ||
by | /s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Executive Vice President, CFO and Treasurer | ||
JAMAL AND RANIA DANIEL REVOCABLE TRUST | ||
by |
/s/ Jamal Daniel | |
Name: Jamal Daniel | ||
Title: Trustee | ||
JAMAL DANIEL | ||
by |
/s/ Jamal Daniel | |
Name: Jamal Daniel | ||
RANIA DANIEL | ||
by |
/s/ Rania Daniel | |
Name: Rania Daniel | ||
DTN LNG, LLC | ||
by |
/s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Manager, President, Secretary and Treasurer |
DTN INVESTMENTS, LLC | ||
by | /s/ Pamela E. Powers | |
Name: Pamela E. Powers | ||
Title: Manager, President, Secretary and Treasurer | ||
DARIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
THALIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
NAIA DANIEL TRUST | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
Title: Trustee | ||
JOHN M. HOWLAND | ||
by | /s/ John M. Howland | |
Name: John M. Howland | ||
ERIC E. STOERR | ||
by | /s/ Eric E. Stoerr | |
Name: Eric E. Stoerr |
Exhibit 2
CREST FINANCIAL LIMITED 6800 JPMorgan Chase Tower 600 Travis, Suite 6800 Houston, TX 77002 |
Tel: (713) 222-6900 Fax: (713) 222-1614 |
November 6, 2012
VIA FACSIMILE AND COURIER
Mr. Jonathan Fiorello
Chief Operating Officer
Mount Kellett Capital Management LLP
623 Fifth Avenue
18th Floor
New York, New York 10022
Dear Mr. Fiorello:
Crest Financial Limited (Crest), a Houston-based investment company, is a long-term investor in Clearwire Corporation (the Company). Crest, with its affiliates, currently owns 45,756,898 Class A shares of the Company, or approximately 6.62 percent of the Companys outstanding Class A stock.
We have read the November 1, 2012 letter that you sent to the Company. Crest also has been monitoring the recent developments associated with the Plan of Merger and Agreement (Merger Agreement) between SprintNextel Corporation (Sprint), the Companys dominant shareholder, and Softbank Corporation (Softbank). It appears that the Softbank-Sprint merger may not be in the Companys best interest and may threaten the interests of the Companys minority shareholders. Your letter expressed many of the concerns we have in this regard, and we commend you for sending it.
By way of background, Crest and its affiliates have a long history of investing in the spectrum that Clearwire currently holds. In 1996, the FCC awarded to Digital & Wireless, a Crest affiliate, licenses providing rights to frequencies in 19 markets in a BTA auction. In June of 2004, Clearwire Corporation, then still a privately-held corporation, acquired these licenses from Digital & Wireless. As part of the consideration for this sale, Crest received a significant number of Clearwire Corporation shares. Since that sale, Crest and its affiliates have continued to purchase shares in Clearwire, thus evidencing our belief in the value of Clearwires assets and, just as important, Clearwires business plan for monetizing these assets.
Unfortunately, the Company finds itself with insufficient capital to build out its facilities to realize the full value of the spectrum capacity that it holds. Like you, Crest would expect that, if the members of the Companys Board were intent on discharging their fiduciary duties, they would take immediate action to bolster the Companys liquidity.
In addition to the sale of excess spectrum that you proposed in your letter, Crest believes that immediate steps to raise capital through the offering and sale of additional common shares would be among the steps a board of directors, acting in the best interests of all shareholders, would pursue. Proceeds from such an offering, together with proceeds from the sale of a portion of the Companys excess spectrum to a third party or parties, would ensure a successful build-out of the Companys network and bolster the Companys position as it renegotiates the lease of its spectrum to Sprint. And the additional and immediate network investment facilitated by a successful share offering would likely increase the value of Clearwires assets and thus the sale price for any excess spectrum.
It is Crests view that this sale of additional shares can be done quickly and successfully for the good of the Company, its shareholders and the public at large. Indeed, Crest would consider participating in such an offering.
There are a number of reasons why a public offering and sale of shares, in addition to the sale of its excess spectrum, should be pursued. First, the value of the Companys assets, which the Softbank-Sprint proposal and the Companys own disclosures confirm, would easily support such an offering. Second, the proceeds from the sale of shares would provide the Company with the capital necessary to push ahead with its build-out strategy during the period it is working to complete its sale of excess spectrum. Third, raising capital from investors other than the dominant shareholder, or at least pro rata with it, would prevent what has amounted to a creeping tender offer that Sprint has said is its intention with regard to the Company to wit, the buying of shares of strategic investors whenever it gets a chance. Finally, the Company has recently experienced success in raising capital, specifically through sales of its common shares to the public utilizing its Sales Agreement with Cantor Fitzgerald & Company. There is no reason why these efforts should not continue. Indeed, it is unclear why the Company abruptly ended that arrangement near the end of July notwithstanding the success CF&Co. experienced in selling the Companys common shares under that arrangement.
Crest also is concerned that recent actions (or inactions) of the Companys Board may not be in the best interests of either the Company or its minority shareholders. Like you, we also expect that the members of the Companys Board will continue to perform the fiduciary duties that each owes to the Company and its shareholders. Crest is concerned that Softbank and Sprint are positioning themselves to obtain the exclusive benefit from the Companys valuable spectrum and assets through the Merger Agreement at the expense and to the detriment of the Company and its minority shareholders. While Sprint acquired enough shares to further cement its control of the Company (50.8%) just days after the Merger Agreement was announced, Sprint and Softbank have stated publicly that their transaction does not require Sprint to take any actions involving Clearwire other than those set forth in agreements Sprint has previously entered into with Clearwire and certain of its shareholders. Odder still is the value placed on the shares purchased by Sprint in that transaction: $2.00 per share of Class A stock and $13.98 per share of Class B stock. The Class A shares were valued at their original price. But the Class B shares received a significant premium; Class B shares were issued at $7.33 per share. We think this higher valuation for the Class B shares is intended to unfairly benefit Class B shareholders and at the expense of Class A shareholders, including Crest and you.
In light of this, Crest believes that compliance with its fiduciary duties under these circumstances would require a properly functioning Board to take a variety of actions to mitigate the danger of Sprint improperly using its status as the controlling shareholder to oppress the rights and economic position of minority shareholders. For example, it could assess the impact on the Company and its public shareholders of the Softbank-Sprint merger as well as subsequent events and public statements, review all other dealings with Sprint, and establish defensive measures to enhance the ability of independent directors to ensure full value for minority shareholders. One area of inquiry could be the Equityholders Agreement of 2008 and, specifically, the standstill agreement that prohibits Sprint from any direct or indirect acquisition of any Common Stock. The standstill agreement contains an exception to protect minority shareholdersnamely, that Sprint can only make an offer for 100 percent of the Companys shares, and only if the offer is approved by independent, unaffiliated members of the Companys Board and by a majority of minority voting shares.
Any or all of these steps would strengthen the Boards ability to prevent any future offer by Sprint to purchase the Company or its assets at a distressed or undervalued price.
From day one, Crest has seen its investment in the Company as a way to facilitate the completion of a world-class network that could challenge the extant duopoly in the wireless communications industry, bring real competition and innovation to the marketplace, and benefit consumers of mobile telecommunications. These goals, which we are sure will be the focus of the Federal Communications Commissions approval process, can be achieved only if the Companys spectrum and assets are managed for the benefit of all stakeholders and not just for shareholders with temporary or untoward advantage and dominance.
We believe that, properly managed, the Softbank-Sprint merger proposal presents an opportunity to benefit not only the interests of all shareholders, but also the public interest. Improperly managed, the merger could harm minority shareholders and the public at large. Crest will continue to monitor the Companys progress and is eager to engage the Company on any relevant matters.
Thank you.
Sincerely yours, |
/s/ David K. Schumacher |
David K. Schumacher General Counsel Crest Financial Limited |
Exhibit 3
Crest Financial Sends Letter to Mount Kellett about Clearwire and Sprint
HOUSTON, Nov. 6, 2012 Today, Crest Financial Limited, an investment firm based in Houston, sent a letter to Mount Kellett Capital Management LP regarding issues related to the rights and economic position of the minority shareholders of Clearwire Corporation (NASDAQ: CLWR) in light of Clearwires relationship with Sprint Nextel Corporation (NYSE: S) and Clearwires liquidity issues related to the Clearwires build-out program. The text of the letter is as follows:
CREST FINANCIAL LIMITED
6800 JPMorgan Chase Tower
600 Travis, Suite 6800
Houston, TX 77002
Tel: (713) 222-6900
Fax: (713) 222-1614
November 6, 2012
VIA FACSIMILE AND COURIER
Mr. Jonathan Fiorello
Chief Operating Officer
Mount Kellett Capital Management LLP
623Fifth Avenue
18th Floor
New York, New York 10022
Dear Mr. Fiorello:
Crest Financial Limited (Crest), a Houston-based investment company, is a long-term investor in Clearwire Corporation (the Company). Crest, with its affiliates, currently owns 45,756,898 Class A shares of the Company, or approximately 6.62 percent of the Companys outstanding Class A stock.
Mr. Jonathan Fiorello
November 6, 2012
Page 2
We have read the November 1, 2012 letter that you sent to the Company. Crest also has been monitoring the recent developments associated with the Plan of Merger and Agreement (Merger Agreement) between Sprint Nextel Corporation (Sprint), the Companys dominant shareholder, and Softbank Corporation (Softbank). It appears that the Softbank-Sprint merger may not be in the Companys best interest and may threaten the interests of the Companys minority shareholders. Your letter expressed many of the concerns we have in this regard, and we commend you for sending it.
By way of background, Crest and its affiliates have a long history of investing in the spectrum that Clearwire currently holds. In 1996, the FCC awarded to Digital & Wireless, a Crest affiliate, licenses providing rights to frequencies in 19 markets in a BTA auction. In June of 2004, Clearwire Corporation, then still a privately-held corporation, acquired these licenses from Digital & Wireless. As part of the consideration for this sale, Crest received a significant number of Clearwire Corporation shares. Since that sale, Crest and its affiliates have continued to purchase shares in Clearwire, thus evidencing our belief in the value of Clearwires assets and, just as important, Clearwires business plan for monetizing these assets.
Unfortunately, the Company finds itself with insufficient capital to build out its facilities to realize the full value of the spectrum capacity that it holds. Like you, Crest would expect that, if the members of the Companys Board were intent on discharging their fiduciary duties, they would take immediate action to bolster the Companys liquidity.
In addition to the sale of excess spectrum that you proposed in your letter, Crest believes that immediate steps to raise capital through the offering and sale of additional common shares would be among the steps a board of directors, acting in the best interests of all shareholders, would pursue. Proceeds from such an offering, together with proceeds from the sale of a portion of the Companys excess spectrum to a third party or parties, would ensure a successful build-out of the Companys network and bolster the Companys position as it renegotiates the lease of its spectrum to Sprint. And the additional and immediate network investment facilitated by a successful share offering would likely increase the value of Clearwires assets and thus the sale price for any excess spectrum.
It is Crests view that this sale of additional shares can be done quickly and successfully for the good of the Company, its shareholders and the public at large. Indeed, Crest would consider participating in such an offering.
There are a number of reasons why a public offering and sale of shares, in addition to the sale of its excess spectrum, should be pursued. First, the value of the Companys assets, which the Softbank-Sprint proposal and the Companys own disclosures confirm, would easily support such an offering. Second, the proceeds from the sale of shares would provide the Company with the capital necessary to push ahead with its build-out strategy during the period it is working to complete its sale of excess spectrum. Third, raising capital from investors other than the dominant shareholder, or at least pro rata with it, would prevent what has amounted to a creeping tender offer that Sprint has said is its intention with regard to the Company to wit, the buying of shares of strategic investors whenever it gets a chance. Finally, the Company has recently experienced success in raising capital, specifically through sales of its common shares to the public utilizing its Sales Agreement with Cantor Fitzgerald & Company. There is no reason why these efforts should not continue. Indeed, it is unclear why the Company abruptly ended that arrangement near the end of July notwithstanding the success CF&Co. experienced in selling the Companys common shares under that arrangement.
Mr. Jonathan Fiorello
November 6, 2012
Page 3
Crest also is concerned that recent actions (or inactions) of the Companys Board may not be in the best interests of either the Company or its minority shareholders. Like you, we also expect that the members of the Companys Board will continue to perform the fiduciary duties that each owes to the Company and its shareholders. Crest is concerned that Softbank and Sprint are positioning themselves to obtain the exclusive benefit from the Companys valuable spectrum and assets through the Merger Agreement at the expense and to the detriment of the Company and its minority shareholders. While Sprint acquired enough shares to further cement its control of the Company (50.8%) just days after the Merger Agreement was announced, Sprint and Softbank have stated publicly that their transaction does not require Sprint to take any actions involving Clearwire other than those set forth in agreements Sprint has previously entered into with Clearwire and certain of its shareholders. Odder still is the value placed on the shares purchased by Sprint in that transaction: $2.00 per share of Class A stock and $13.98 per share of Class B stock. The Class A shares were valued at their original price. But the Class B shares received a significant premium; Class B shares were issued at $7.33 per share. We think this higher valuation for the Class B shares is intended to unfairly benefit Class B shareholders and at the expense of Class A shareholders, including Crest and you.
In light of this, Crest believes that compliance with its fiduciary duties under these circumstances would require a properly functioning Board to take a variety of actions to mitigate the danger of Sprint improperly using its status as the controlling shareholder to oppress the rights and economic position of minority shareholders. For example, it could assess the impact on the Company and its public shareholders of the Softbank-Sprint merger as well as subsequent events and public statements, review all other dealings with Sprint, and establish defensive measures to enhance the ability of independent directors to ensure full value for minority shareholders. One area of inquiry could be the Equityholders Agreement of 2008 and, specifically, the standstill agreement that prohibits Sprint from any direct or indirect acquisition of any Common Stock. The standstill agreement contains an exception to protect minority shareholdersnamely, that Sprint can only make an offer for 100 percent of the Companys shares, and only if the offer is approved by independent, unaffiliated members of the Companys Board and by a majority of minority voting shares.
Any or all of these steps would strengthen the Boards ability to prevent any future offer by Sprint to purchase the Company or its assets at a distressed or undervalued price.
From day one, Crest has seen its investment in the Company as a way to facilitate the completion of a world-class network that could challenge the extant duopoly in the wireless communications industry, bring real competition and innovation to the marketplace, and benefit consumers of mobile telecommunications. These goals, which we are sure will be the focus of the Federal Communications Commissions approval process, can be achieved only if the Companys spectrum and assets are managed for the benefit of all stakeholders and not just for shareholders with temporary or untoward advantage and dominance.
Mr. Jonathan Fiorello
November 6, 2012
Page 4
We believe that, properly managed, the Softbank-Sprint merger proposal presents an opportunity to benefit not only the interests of all shareholders, but also the public interest. Improperly managed, the merger could harm minority shareholders and the public at large. Crest will continue to monitor the Companys progress and is eager to engage the Company on any relevant matters.
Thank you.
Sincerely yours, |
/s/ David K. Schumacher |
David K. Schumacher |
General Counsel |
Crest Financial Limited |
Media Contact:
Jeffrey Birnbaum
BGR Public Relations
202-333-4936
jbirnbaum@bgrpr.com
Jeffrey Birnbaum
President
BGR Public Relations
202-661-6367