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. 18)*
Clearwire Corporation
(Name of Issuer)
Class A Common Stock
(Title of Class of Securities)
18538Q105
(CUSIP Number)
David K. Schumacher
General Counsel
Crest Financial Limited
JP Morgan Chase Tower
600 Travis, Suite 6800
Houston, TX 77002
Tel: (713) 222 6900
(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
May 28, 2013
(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
36,183,649 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
36,183,649 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
36,183,649 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
5.18%(1) | |||||
14 | Type of reporting person (see instructions)
PN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
36,183,649 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
36,183,649 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
36,183,649 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
5.18%(1) | |||||
14 | Type of reporting person (see instructions)
CO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
36,183,649 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
36,183,649 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
36,183,649 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
5.18%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
36,183,649 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
36,183,649 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
36,183,649 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
5.18%(1) | |||||
14 | Type of reporting person (see instructions)
IN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
36,183,649 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
36,183,649 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
36,183,649 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
5.18%(1) | |||||
14 | Type of reporting person (see instructions)
IN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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)
1.38%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
10,173,249 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
10,173,249 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
10,173,249 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
1.46%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
3,391,083 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
3,391,083 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
3,391,083 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
0.49%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
3,391,083 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
3,391,083 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
3,391,083 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
0.49%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
3,391,083 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
3,391,083 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
3,391,083 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
0.49%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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
10,173,249 | |||||
9 | Sole dispositive power
23,000 | |||||
10 | Shared dispositive power
10,173,249 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
10,196,249 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
1.46%(1) | |||||
14 | Type of reporting person (see instructions)
IN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
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 Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
1 |
Names of reporting persons
Halim Daniel 2012 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)
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
Cayman Islands | |||||
Number of shares beneficially owned by each reporting person with
|
7 | Sole voting power
0 | ||||
8 | Shared voting power
11,051,521 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
11,051,521 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
11,051,521 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
1.58%(1) | |||||
14 | Type of reporting person (see instructions)
OO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
1 |
Names of reporting persons
Halim 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)
PF | |||||
5 | Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ¨
| |||||
6 | Citizenship or place of organization
Lebanon | |||||
Number of shares beneficially owned by each reporting person with
|
7 | Sole voting power
200,000 | ||||
8 | Shared voting power
11,051,521 | |||||
9 | Sole dispositive power
200,000 | |||||
10 | Shared dispositive power
11,051,521 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
11,251,521 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
1.61%(1) | |||||
14 | Type of reporting person (see instructions)
IN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
1 |
Names of reporting persons
Michael Wheaton | |||||
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
Cayman Islands | |||||
Number of shares beneficially owned by each reporting person with
|
7 | Sole voting power
0 | ||||
8 | Shared voting power
11,051,521 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
11,051,521 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
11,051,521 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
1.58%(1) | |||||
14 | Type of reporting person (see instructions)
IN |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
1 |
Names of reporting persons
Uniteg Holding SA | |||||
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
Switzerland | |||||
Number of shares beneficially owned by each reporting person with
|
7 | Sole voting power
0 | ||||
8 | Shared voting power
600,000 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
600,000 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
600,000 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
0.09%(1) | |||||
14 | Type of reporting person (see instructions)
CO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
1 |
Names of reporting persons
Crest Switzerland 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
600,000 | |||||
9 | Sole dispositive power
0 | |||||
10 | Shared dispositive power
600,000 | |||||
11 |
Aggregate amount beneficially owned by each reporting person
600,000 | |||||
12 | Check if the aggregate amount in Row (11) excludes certain shares (see instructions) ¨
| |||||
13 | Percent of class represented by amount in Row (11)
0.09%(1) | |||||
14 | Type of reporting person (see instructions)
CO |
(1) | Based on the Issuers Definitive Proxy Statement on Schedule 14A filed on April 23, 2013, there were 699,171,925 shares of Class A common stock outstanding as of April 2, 2013. |
This Amendment No. 18 (this Amendment) amends and supplements the Statement on Schedule 13D (the Schedule 13D) of 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, Mr. Eric E. Stoerr, the Halim Daniel 2012 Trust (the Halim Daniel Trust), Mr. Michael Wheaton, solely in his capacity as trustee of the Halim Daniel Trust, Mr. Halim Daniel, Uniteg Holding SA (Uniteg) and Crest Switzerland, LLC (Crest Switzerland and, together with CFL, CIC, the Jamal and Rania Daniel Trust, Mr. Jamal Daniel, Mrs. Daniel, DTN LNG, DTN Investments, the Daria Daniel Trust, the Thalia Daniel Trust, the Naia Daniel Trust, Mr. Howland, Mr. Stoerr, the Halim Daniel Trust, Mr. Wheaton, solely in his capacity as trustee of the Halim Daniel Trust, Mr. Halim Daniel, Uniteg and Crest Switzerland, the Reporting Persons) that was filed in respect of Clearwire Corporation (the Issuer) on June 1, 2012 and amended by Amendment No. 1 filed on November 7, 2012 (Amendment No. 1), Amendment No. 2 filed on December 18, 2012 (Amendment No. 2), Amendment No. 3 filed on March 13, 2013 (Amendment No. 3), Amendment No. 4 filed on March 20, 2013 (Amendment No. 4), Amendment No. 5 filed on April 4, 2013 (Amendment No. 5), Amendment No. 6 filed on April 9, 2013 (Amendment No. 6), Amendment No. 7 filed on April 11, 2013 (Amendment No. 7), Amendment No. 8 filed on April 23, 2013 (Amendment No. 8), Amendment No. 9 (Amendment No. 9) filed on April 25, 2013, Amendment No. 10 filed on May 7, 2013 (Amendment No. 10), Amendment No. 11 filed on May 9, 2013 (Amendment No. 11), Amendment No. 12 filed on May 13, 2013 (Amendment No. 12), Amendment No. 13 filed on May 17, 2013 (Amendment No. 13), Amendment No. 14 filed on May 20, 2013 (Amendment No. 14), Amendment No. 15 filed on May 22, 2013 (Amendment No. 15), Amendment No. 16 filed on May 24, 2013 (Amendment No. 16) and Amendment No. 17 filed on May 28, 2013 (Amendment No. 17).
Item 4. | Purpose of Transaction. |
Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following paragraphs after the first paragraph thereof:
On May 28, 2013, CFL issued a press release (the May 28 Press Release) relating to the recommendation of the proxy advisory firm Glass Lewis & Co. that shareholders of the Issuer vote against the proposed merger of the Issuer with Sprint Nextel Corporation (Sprint). A copy of the May 28 Press Release is attached hereto as Exhibit 2 and is incorporated herein by reference. The description herein of the May 28 Press Release is qualified in its entirety by reference to the May 28 Press Release.
On May 28, 2013, CFL sent a letter to the Federal Communications Commission (the May 28 FCC Letter) relating to the approval process of the proposed transaction between Softbank Corporation and Sprint and, on May 29, 2013, issued a press release relating thereto (the May 29 Press Release). A copy of the May 28 FCC Letter is attached hereto as Exhibit 3 and a copy of the May 29 Press Release is attached hereto as Exhibit 4, each of which are incorporated herein by reference. The descriptions herein of the May 28 FCC Letter and the May 29 Press Release are qualified in their entirety by reference to the May 28 FCC Letter and May 29 Press Release.
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 6 of the Schedule 13D is hereby amended and restated in its entirety as follows:
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 May 28 Press Release attached hereto as Exhibit 2, the May 28 FCC Letter attached hereto as Exhibit 3, the May 29 Press Release attached hereto as Exhibit 4, the May 28 Letter to Stockholders attached to Amendment No. 17 as Exhibit 2, the May 28 Press Release attached to Amendment No. 17 as Exhibit 3, the May 23 Press Release attached to Amendment No. 16 as Exhibit 2, the May 21 Letter to Stockholders attached to Amendment No. 15 as Exhibit 2, the May 21 Letter to the Board attached to Amendment No. 15 as Exhibit 3, the May 21 Press Release attached to Amendment No. 15 as Exhibit 4, the May 20 Letter to Stockholders attached to Amendment No. 14 as Exhibit 2, the May 20 Letter to the Board attached to Amendment No. 14 as Exhibit 3; the May 20 Press Release attached to Amendment No. 14 as Exhibit 4, the May 17 Letter to Stockholders attached to Amendment No. 13 as Exhibit 2, the May 17 Press Release attached to Amendment No. 13 as Exhibit 3, the May 16 Letter to Stockholders attached to Amendment No. 13 as Exhibit 4, the May 16 Press Release attached to Amendment No. 13 as Exhibit 5, the Press Release attached to Amendment No. 12 as Exhibit 2, the Presentation to Stockholders attached to Amendment No. 11 as Exhibit 2, the Press Release attached to Amendment No. 11 as Exhibit 3, the Press Release attached to Amendment No. 10 as Exhibit 2, the Letter to Stockholders attached to Amendment No. 10 as Exhibit 3, the Power of Attorney for the Daria Daniel Trust attached to Amendment No. 10 as Exhibit 4, the Power of Attorney for the Thalia Daniel Trust attached to Amendment No. 10 as Exhibit 5, the Power of Attorney for the Naia Daniel Trust attached to Amendment No. 10 as Exhibit 6, the Power of Attorney for John M. Howland attached to Amendment No. 10 as Exhibit 7, the Press Release attached to Amendment No. 9 as Exhibit 2, the Power of Attorney for the Jamal and Rania Daniel Trust attached to Amendment No. 9 as Exhibit 3, the Power of Attorney for Jamal Daniel attached to Amendment No. 9 as Exhibit 4, the Power of Attorney for Rania Daniel attached to Amendment No. 9 as Exhibit 5, the Power of Attorney for Eric E. Stoerr attached to Amendment No. 9 as Exhibit 6, the Power of Attorney for the Halim Daniel Trust attached to Amendment No. 9 as Exhibit 7, the Power of Attorney for Halim Daniel attached to Amendment No. 9 as Exhibit 8, the Power of Attorney for Michael Wheaton attached to Amendment No. 9 as Exhibit 9, the Power of Attorney for Uniteg attached to Amendment No. 9 as Exhibit 10, the Board Letter attached to Amendment No. 8 as Exhibit 2, the April 23 Press Release attached to Amendment No. 8 as Exhibit 3, the April 22 Press Release attached to Amendment No. 8 as Exhibit 4, the FCC Letter attached to Amendment No. 8 as Exhibit 5, the Press Release attached to Amendment No. 7 as Exhibit 2, the Press Release attached to Amendment No. 6 as Exhibit 2, the FCC Letter attached to Amendment No. 6 as Exhibit 3, the Letter to the Board attached to Amendment No. 5 as Exhibit 2, the April 3 Press Release attached to Amendment No. 5 as Exhibit 3, the Demand Letter attached to Amendment No. 4 as Exhibit 2, the March 20 Press Release attached to Amendment No. 4 as Exhibit 3, the March 12 Press Release attached to Amendment No. 3 as Exhibit 2, the FCC Letter attached to Amendment No. 3 as Exhibit 3, the Press Release attached to Amendment No. 2 as Exhibit 2, the Stockholder Letter attached to Amendment No. 1 as Exhibit 2 and the Press Release attached to
Amendment No. 1 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 May 29, 2013, 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, Mr. Eric E. Stoerr, the Halim Daniel 2012 Trust, Mr. Michael Wheaton, solely in his capacity as trustee of the Halim Daniel 2012 Trust, Mr. Halim Daniel, Uniteg Holding SA and Crest Switzerland, LLC | |
Exhibit 2 | Press Release by Crest Financial Limited dated May 28, 2013 | |
Exhibit 3 | Letter to the Federal Communications Commission by Bancroft PLLC dated May 28, 2013 | |
Exhibit 4 | Press Release by Crest Financial Limited dated May 29, 2013 |
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: May 29, 2013
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/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
JAMAL DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
RANIA DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
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 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
THALIA DANIEL 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact |
NAIA DANIEL 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
JOHN M. HOWLAND | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
ERIC E. STOERR | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
HALIM DANIEL 2012 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
HALIM DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
MICHAEL WHEATON | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
UNITEG HOLDING SA | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
CREST SWITZERLAND LLC | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Manager |
EXHIBIT INDEX
Exhibit |
Exhibit Name | |
Exhibit 1 | Joint Filing Agreement dated May 29, 2013, 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, Mr. Eric E. Stoerr, the Halim Daniel 2012 Trust, Mr. Michael Wheaton, solely in his capacity as trustee of the Halim Daniel 2012 Trust, Mr. Halim Daniel, Uniteg Holding SA and Crest Switzerland, LLC | |
Exhibit 2 | Press Release by Crest Financial Limited dated May 28, 2013 | |
Exhibit 3 | Letter to the Federal Communications Commission by Bancroft PLLC dated May 28, 2013 | |
Exhibit 4 | Press Release by Crest Financial Limited dated May 29, 2013 |
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 29th day of May, 2013.
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/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
JAMAL DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
RANIA DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
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 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact |
THALIA DANIEL 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
NAIA DANIEL 2003 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
JOHN M. HOWLAND | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
ERIC E. STOERR | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
HALIM DANIEL 2012 TRUST | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
HALIM DANIEL | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
MICHAEL WHEATON | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
UNITEG HOLDING SA | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Attorney-in-fact | |||||
CREST SWITZERLAND LLC | ||||||
by | /s/ Pamela E. Powers | |||||
Name: | Pamela E. Powers | |||||
Title: | Manager |
Exhibit 2
FOR IMMEDIATE RELEASE:
CONTACT: Jeffrey Birnbaum, (202) 661-6367, JBirnbaum@BGRPR.com
Crest Financial Commends Glass Lewis for Recommending a Vote
Against the Sprint-Clearwire Merger
HOUSTON, May 28, 2013 Crest Financial Limited, the largest of the independent minority stockholders of Clearwire Corporation (NASDAQ: CLWR), today commended the proxy advisory firm Glass Lewis & Co. for recommending a vote against the proposed merger of Clearwire and Sprint Nextel Corporation.
David Schumacher, general counsel of Crest, said: Glass Lewiss independent analysis and expert opinion confirm our view that Sprint is continuing to divert value away from Clearwire and toward Sprint. As Glass Lewis has pointed out, in pursuing this transaction with Sprint, Clearwires board of directors has shown sharply disproportionate deference to the interests of Sprint. Furthermore, Glass Lewis questioned Clearwires review of alternative offers and said minority stockholders have significant cause to doubt that Sprint made its best and final offer for Clearwire. The only proper response from Clearwire shareholders is to vote down the still-inadequate offer by Sprint and wait until the contest for control of Sprint is resolved. Only then can a true competitive process for Clearwire proceed and its true value be unlocked.
Schumacher added: If Sprints bid for Clearwire fails, it is not certain that a Sprint-SoftBank or Sprint-DISH transaction will actually materialize. Clearwire is the ultimate prize in the bidding war over Sprint. Thus, despite public statements to the contrary, we doubt that SoftBank or DISH would be satisfied with a Sprint that does not control 100% of Clearwire. But this does not change the fact that Clearwires stockholders should not approve any offer while the battle over Sprint continues. Whether or not Sprint is ultimately purchased by SoftBank, DISH, or another suitor, the best course is for Clearwire to solicit direct, competitive bids for the company, rather than permitting Sprint to skim off the top by purchasing Clearwire at a discount and selling itself at a premium. We therefore commend the Glass Lewis recommendation that Clearwires stockholders should reject Sprints latest unfair offer. The Glass Lewis recommendation stands in stark contrast to the opinion of Institutional Investor Services and Egan-Jones, both of which wrongly supported the merger at $2.97 per share and still obstinately refuse to see Sprints incremental bump for the unfair offer that it is.
As Glass Lewis notes, Sprint leveraged its position to secure disproportionately favorable terms at the expense of independent shareholders. That unfair process is not
remedied but confirmed by the incremental increased offer. According to Glass Lewis, Indeed, the undercurrent of the improved bid seems to reinforce many of our doubts about the original transaction process, and, in doing so, does little to off-set our belief that the board has failed to ensure the Sprint bid represents the greatest possible opportunity from the perspective of minority shareholders.
Glass Lewis continued: Fundamentally, our overarching concern relates to Sprints ability to influence alternatives practicably available to Clearwire, both through its significant equity ownership and board representation. In particular, as noted in our original analysis, it appears the board made no meaningful effort to stanch Sprints restrictive impact on the strategic review process. To the contrary, management either negotiated or accepted decidedly non-standard deal terms that effectively marginalized the boards ability to terminate the agreement with Sprint in favor of an alternative transaction or, of equal import, the pursuit of a viable stand-alone strategy. Deprived of any codified resource to materially alter the existing agreement, we continue to be unsurprised by the boards outward support for the transaction.
In addition to commending Glass Lewis, Crest announced its belief that Clearwire and Sprint are significantly overestimating the implicit value of Clearwire spectrum assets reflected in Sprints latest offer. Sprint and Clearwire have stated that Sprints $3.40 per share offer implies a transactional value of approximately $0.24 per MHz-POP. According to Crest, however, former FCC Commissioner Harold Furchtgott-Roth has estimated the implicit value for Clearwires spectrum reflected in Sprints latest offer at $0.14 per MHz-POP, which is substantially below market. Schumacher stated, Dr. Furchtgott-Roths estimates confirm that Sprints latest offer remains woefully inadequate.
D.F. King & Co, Inc. has been retained by Crest to assist it in the solicitation of proxies in opposition to the merger. If stockholder have any questions or need assistance in voting the GOLD proxy card, please call D.F. King & Co. at (800) 949-2583.
About Crest Financial Limited
Crest Financial Limited (Crest) is a limited partnership under the laws of the State of Texas. Its principal business is investing in securities.
Important Legal Information
In connection with the proposed merger of Clearwire Corporation (Clearwire) with Sprint Nextel Corporation (the Proposed Sprint Merger), Crest and other persons (the Participants) have filed a supplement to its definitive proxy statement with the U.S. Securities and Exchange Commission (SEC). The supplement was mailed to the stockholders of Clearwire on or around May 24, 2013. SECURITYHOLDERS OF CLEARWIRE ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT AND THE SUPPLEMENT, WHICH IS AVAILABLE NOW, AND THE PARTICIPANTS
OTHER PROXY MATERIALS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING ADDITIONAL INFORMATION RELATED TO THE PARTICIPANTS, CLEARWIRE AND THE PROPOSED SPRINT MERGER. The definitive proxy statement, the supplement and all other proxy materials filed with the SEC are available at no charge on the SECs website at http://www.sec.gov. In addition, the definitive proxy statement and the supplement are also available at no charge on the website of the Participants proxy solicitor at http://www.dfking.com/clwr.
Forward-looking Statements
Certain statements contained herein are forward-looking statements including, but not limited to, statements that are predications of or indicate future events, trends, plans or objectives. Undue reliance should not be placed on such statements because, by their nature, they are subject to known and unknown risks and uncertainties. Forward-looking statements are not guarantees of future activities and are subject to many risks and uncertainties. Due to such risks and uncertainties, actual events may differ materially from those reflected or contemplated in such forward-looking statements. Forward-looking statements can be identified by the use of the future tense or other forward-looking words such as believe, expect, anticipate, intend, plan, should, may, will, believes, continue, strategy, position or the negative of those terms or other variations of them or by comparable terminology.
SOURCE: Crest Financial Limited
Exhibit 3
May 28, 2013
VIA ELECTRONIC FILING
Marlene H. Dortch, Esq.
Secretary
Federal Communications Commission
445 Twelfth Street, S.W.
Washington, D.C. 20054
Re: | Applications of Sprint Nextel Corp. and SoftBank Corp., IB Docket No. 12-343 |
Dear Ms. Dortch:
Crest Financial Limited (Crest) respectfully files this ex parte letter in support of its Petition to Deny and to bring to the Commissions attention several recent actions by SoftBank and Sprint demonstrating their disregard for the Commissions important role in reviewing the proposed SoftBank-Sprint merger. Specifically, under Section 309 of the Communications Act, the Commission reviews covered transactions to determine whether they will serve the public interest, convenience, and necessity. The Commission will only grant a license transfer application if it determines that the transaction will serve the public interest.
SoftBank and Sprint have jumped the gun on the Commissions review, showing their apparent indifference to the Commissions public interest inquiry. Although the Commissions review remains ongoing and SoftBank itself is locked in a bidding war with DISH Network for Sprint, SoftBank has been directing and manipulating Sprints critical business decisions as if its merger with Sprint were already approved. But the Commission has not approved that merger, and respect for the Commissions process means that SoftBank and Sprint may not conduct themselves as if approval were a mere formality and a foregone conclusion. Not only could the Commission deny SoftBanks attempted merger with Sprint for being contrary to the public interest or posing a risk to national security, but the Commission could also hold its decision in abeyance until the Sprint Board of Directors determines whether to pursue a deal with DISH. This uncertainty makes it all the more inappropriate that SoftBank continues to control Sprint from the shadows before the Commission completes its public interest review.
This sort of pre-merger coordination is not tolerated by other federal regulators charged with protecting the public interest, and the Commission should not tolerate it either. In the antitrust context, merging companies are prohibited from coordinating business activities while the merger is subject to the Hart-Scott-Rodino Act waiting period.1 Merging firms improperly
1 | The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act) prohibits the consummation of certain merger transactions until both parties have made the required filings with the Department of Justice Antitrust Division and the FTC and those entities have completed their antitrust review. 15 U.S.C. §18a(a). Specifically, the HSR Act provides for a thirty day waiting period during which Department of Justice and the FTC will review the proposed merger. 15 U.S.C. §18a(b)(1). |
1919 M Street, N.W. Suite 470 Washington D.C. 20036
Telephone 202.234.0090 www.bancroftpllc.com Facsimile 202.234.2806
jump the gun when they collaborate to further the merger process and start combining their day-to-day operations before the end of the waiting period. Under the HSR Act, the Justice Department has brought gun-jumping charges when a buyer has been granted decision rights over the sellers products, its ability to enter into fixed price contracts, its marketing activities, and management of the sellers business operations.
Cautioning merging parties not to undertake excessive coordination before antitrust review is completed, the FTCs former General Counsel has explained that although limited pre-merger coordination is acceptable, there is a certain point when indicia of excessive coordination exists, such as access to confidential information and control over key decisions, from which one can reasonably find that the scale has tipped in the direction of the buyer.2 Likewise, the Department of Justice has stated that merging parties must continue to operate independently pending consummation of their transaction and that the Department views gun-jumping as a serious matter and will proceed against parties who fail to respect the law with regard to preconsummation conduct.3
Thus, in challenging the transaction between Computer Associates and Platinum Technology, the Department of Justice alleged antitrust violations to have occurred during the pre-closing period.4 Specifically, the Department objected to certain covenants in the merger agreement that ceded control, prior to the expiration of the HSR Acts waiting period, of the seller to the buyer. For instance, the merger agreement ceded to the buyer pricing control of sellers products.5 Likewise, the seller was prohibited from entering into contracts for a term of more than thirty days if the contract included a fixed price for services.6 Through operation of these and other covenants, the seller substantially altered its ordinary business practices, showing that it had ceded its control to buyer. The parties ultimately reached a settlement, under which Computer Associates was required to pay $638,000 in civil penalties and was prevented from agreeing on prices, approving or rejecting proposed customer contracts, and exchanging prospective bid information with all future merger partners.7
Similarly, the Department of Justice filed a complaint alleging that Qualcomm Inc. and Flarion Technologies Inc. violated the HSR Act waiting period through limited conduct during the transaction review period that gave Qualcomm beneficial ownership of Flarion.8 According to the complaint, Qualcomm was impermissibly involved in several areas of Flarions operations,
2 | William Blumenthal, The Rhetoric of Gun-Jumping, 2005 WL 3635346, at 9 (FTC Nov. 10 2005). |
3 | Justice Department Settles Lawsuit Against Computer Associates for Illegal Pre-Merger Coordination, (Apr. 23, 2002), http://www.justice.gov/atr/public/press_releases/2002/11029.htm. |
4 | Complaint, United States v. Computer Assoc., No. 11-cv-02062 (D.D.C. Sept. 28, 2001) |
5 | Id. at ¶20. |
6 | Id. at ¶2. |
7 | Final Judgment, United States v. Computer Assoc., No. 11-cv-02062 (D.D.C. Nov. 21, 2002) |
8 | Complaint, United States v. Qualcomm Inc. and Flarion Technologies, Inc, No. 06-cv-00672 (D.D.C. Apr. 13, 2006). |
2
including routine employee hiring, marketing decisions, and price discounts.9 The parties ultimately reached a settlement, in which Qualcomm and Flarion agreed to pay $1.8 million in civil penalties.10
SoftBank, through its words and actions, has similarly jumped the gun on the Commissions review, acting as if the Commissions role in reviewing the proposed transaction is a mere formality.
First, SoftBank CEO Masayoshi Son has been speaking publicly as if SoftBank already owns Sprint.11 He stated recently that in the Sprint-SoftBank transaction, Clearwires spectrum is the key. Son has also preemptively announced that if the Sprint-Clearwire merger does not close, Clearwire will not go into bankruptcy because SoftBank will ensure that Sprint continues to finance Clearwire. In addition, SoftBank recently described its vision for the post-transaction Sprint, detailed the composition of the new companys Board of Directors, and it also touted the planned synergies between SoftBanks and Sprints operations.12 In fact, in its recent SEC filings, SoftBank announced that the new Sprints board of directors will quickly lose any involvement from Sprints current leadership. Rather, within three years of the SoftBank-Sprint transaction closing, the new Sprint board will consist of six independent directors, three SoftBank directors, and the CEO.13 Additionally, SoftBank has announced that it is already meeting regularly with Sprint representatives to plan the synergies of the new company, notwithstanding the ongoing review that this Commission is undertaking.14 By doing so, SoftBank has signaled to Sprints employees and customers that the involvement of Sprints current leadership will be short-livedand that all business decisions involving Sprint should be made with the understanding and expectation that SoftBank will be running the operation and that current business opportunities should fit within the planned synergies that SoftBank seeks.
These are just the type of actions that drew the ire of regulators in the Comcast-NBC Universal transaction. After Comcast and NBC Universal announced the future leadership of the combined company, and while regulatory review was still underway, the Justice Department was asked to investigate whether such public statements violated federal antitrust law by seeking preemptively to exert managerial and operational control of that company. And according to press reports, [t]hat announcement displeased regulators and led the companies to promise that they would make no further personnel announcements until the deal-closing process and timing is certain.15
9 | Id. at ¶6. |
10 | Qualcomm and Flarion Charged with Illegal Premerger Coordination (Apr. 13, 2006), http://www.justice.gov/atr/public/press_releases/2006/215617.htm. |
11 | See, e.g., Japan Times, Softbank says its acquisition of Sprint is a done deal (Apr. 17, 2013), http://www.japantimes.co.jp/news/2013/04/17/business/softbank-says-its-acquisition-of-sprint-is-a-done-deal/#.UaOxY5WAa-I. |
12 | Form 425, SoftBank-Sprint Merger Discussion Materials, SoftBank Corporation (May 20, 2013). |
13 | Id. at 39. In contrast, SoftBank announced that during the first two years three of Sprints legacy independent directors will remain on the board. |
14 | Id. at 33. |
15 | Brian Stelter, For NBC Sale, Tensions Rise in Washington, NY Times (Nov. 21, 2010). |
3
Second, in addition to Sons statements about future governance and business structures, recent SEC filings show that SoftBank has also been directing Sprints core business decisions. For instance, SoftBank directed Sprints lynchpin business decision in its quest to acquire Clearwiredirecting Sprint to purchase enough equity in Clearwire to increase its control over the Clearwire Board and leading to Sprints acquisition of Clearwire shares owned by Eagle River Investments LLC. And the SEC filings and press reports make clear that SoftBank also controls how much Sprint may offer to purchase the remaining shares of Clearwire that it did not already owninitially telling Sprint that it would not consent to any bid for Clearwire in excess of $2.97 per share and then consenting to the Sprints making an increased offer.
This type of excessive coordination is just the type of action that triggers gun-jumping concerns. The Commission should investigate whether SoftBanks integral role in Sprints corporate decisions amounts to SoftBank jumping the gun of the Commissions public interest review. To be sure, the specific focus and requirements of pre-merger review by the Department of Justice differ from those of the pre-merger review by the Commission. But gun-jumping is no less threatening to the Commissions core mission to protect the public interest than it is to the Justice Departments mission to protect competition. And by its words and actions since the merger was announced, SoftBank has been disrespecting the Commissions ongoing review. Through the statements and conduct discussed above, SoftBank, and Masayoshi Son in particular, have stated that the Commissions review and approval does not matter, particularly as it relates to the Commissions review of the Sprint-Clearwire transaction. Instead, Son suggests that he is comfortable controlling Clearwire through Sprints current interest, which it received through its acquisition of the Eagle River shares: there is already existing signed contract signed definitive agreement between Sprint and those major shareholders of Clearwire. So in the worst case, after the voting, Sprint would end up owning 65% of Clearwire at the minimum. And with that control, Son will be able to prohibit Clearwire from any sales of frequency to outsiders and so on. That is good enough, Son stated.16
SoftBanks continued disregard for the Commissions important role protecting the public interest should not be allowed to continue unchecked, especially now that there is a bidding war for who will control Sprint. SoftBank has essentially presented the proposed transaction to the Commission as a fait accompli that awaits the Commissions rubber stamp. However, the Commission must be mindful of its statutory obligation under Section 309 of the Communications Act to approve only those transactions that it determines to be in the public interest. It would be arbitrary and capricious to approve a deal that has been presented as a fait accompli, for that would impermissibly truncate the Commissions statutorily mandated inquiry into whether the transaction serves the public interest, convenience, and necessity. The Commission may not simply rubber stamp a transaction that in practice has already been
16 | Form 425, Transaction with Sprint, SoftBank Corporation (May 1, 2013). |
4
consummated. Just as Article III courts may not be relegated to the role of petty functionaries where they are stripped of capacity to evaluate independently whether an action under review is lawful,17 neither should the Commission.
Moreover, for the Commission to rubber stamp an effectively completed transaction would risk impermissibly delegating a core Commission responsibilityverifying that the proposed deal is in fact in the public interestto SoftBank, Sprint, and Clearwire. It is for the Commission alone, not corporate officers, to determine what the public interest requires in this matter.18
* * *
For the reasons stated in Crests Petition and Reply, the Commission should deny the proposed transaction or approve it only subject to the conditions proposed in Crests previous filings.
This letter is filed pursuant to Section 1.1206 of the Commissions Rules.
Respectfully submitted, |
/s/ Viet D. Dinh |
Viet D. Dinh |
Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 vdinh@bancroftpllc.com |
cc: | David Krech |
Wayne McKee |
Neil Dellar |
Aaron Goldschmidt |
Paul Murray |
Christopher Sova |
Kathleen Collins |
17 | Natl Council of Resistance of Iran v. Dept of State, 251 F.3d 192, 198 (D.C. Cir. 2001). |
18 | See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936); see also USA Group Loan Services, Inc. v. Riley, 82 F.3d 708, 714 (7th Cir. 1996) (Posner, J.) (criticizing the abdication of regulatory authority to the regulated). |
5
Exhibit 4
FOR IMMEDIATE RELEASE:
CONTACT: Jeffrey Birnbaum, (202) 661-6367, JBirnbaum@BGRPR.com
Crest Financial Sends Letter to FCC Objecting to SoftBanks Pre-Merger Coordination with Sprint
HOUSTON, May 29, 2013 Crest Financial Limited, the largest of the independent minority stockholders of Clearwire Corporation (NASDAQ: CLWR), yesterday sent a letter to the Federal Communications Commission urging the Commission to investigate the gun-jumping implications of SoftBanks and Sprints apparent indifference to the Commissions public interest inquiry. Although the FCCs review is ongoing and SoftBank is in a bidding war with DISH Network for control of Sprint, SoftBank has been directing and manipulating Sprints critical business decisions as if its merger with Sprint were already approved, Crest wrote.
Crest stated that the FCC could decide to deny SoftBanks attempted merger with Sprint for being contrary to the public interest or posing a risk to national security or hold its decision in abeyance until the Sprint Board of Directors determines whether to pursue a deal with DISH. As a result, Crest said the uncertainty makes it all the more inappropriate that SoftBank continues to control Sprint from the shadows before the Commission completes its public interest review.
Crest noted that this sort of pre-merger coordination is not tolerated by other federal regulators charged with protecting the public interest. Crest asked the FCC not to tolerate it either. In the antitrust context, Crest stated, Merging companies are prohibited from coordinating business activities while the merger is subject to the Hart-Scott-Rodino Act waiting period. Merging companies improperly jump the gun, according to Crest, when they collaborate to further the merger process and start combining their day-to-day operations before the end of the [Hart-Scott-Rodino Act] waiting period. Department of Justice officials have explained that gun-jumping is a serious matter and that the Department will proceed against parties who fail to respect the law with regard to preconsummation conduct.
Gun-jumping charges have led to settlements in excess of a million dollars. For instance, Crest noted that the Department of Justice has filed gun-jumping charges where merger agreement provisions substantially altered the sellers ordinary business practices, showing that it had ceded its control to buyer. Likewise, according to Crest, Department of Justice officials have stated that merging parties must continue to operate independently pending consummation of their transaction.
In the same way, Crest argued that SoftBank, through its words and actions, has jumped the gun on the FCCs review in several ways, acting as if the Commissions role in reviewing the proposed transaction is a mere formality.
First, Crest stated that SoftBank has been speaking publicly as if SoftBank already owns Sprintannouncing that Clearwires spectrum is the key in the SoftBank-Sprint transaction and publicly describing its vision for the post-transaction Sprint. Crest stated that by outlining the post-transaction leadership and expected synergies, SoftBank has signaled to Sprints employees and customers that the involvement of Sprints current leadership will be short-livedand that all business decisions involving Sprint should be made with the understanding and expectation SoftBank will be running the operation and that current business opportunities should fit within the planned synergies that SoftBank seeks.
Second, Crest stated that SoftBanks recent SEC filings show that SoftBank has also been directing Sprints core business decisions. In particular, Crest wrote, SoftBank directed Sprints lynchpin business decision in its quest to acquire Clearwiredirecting Sprint to purchase enough equity in Clearwire to increase its control over the Clearwire Board and leading to Sprints acquisition of Clearwire shares owned by Eagle River Investments LLC. SoftBank also controls how much Sprint may offer to purchase the remaining shares of Clearwire that it did not already owninitially telling Sprint that it would not consent to any bid for Clearwire in excess of $2.97 per share and then consenting to the Sprints making an increased offer, according to Crest.
These coordinated actions, according to Crest, are just the types of actions that trigger gun-jumping charges in the antitrust context.
In its letter, Crest asked the FCC to investigate whether SoftBanks integral role in Sprints corporate decisions amounts to SoftBank jumping the gun of the Commissions public interest review. According to Crest, SoftBanks CEO Masayoshi Son has stated that the Commissions review and approval does not matter, particularly as it relates to the Commissions review of the Sprint-Clearwire transaction where Son suggests that he is comfortable controlling Clearwire through Sprints current interest.
Crest stated that this continued disregard for the Commissions important role protecting the public interest should not be allowed to continue unchecked, especially now that there is a bidding war for who will control Sprint. Rather than respecting the Commissions process, SoftBank has presented the proposed transaction to the Commission as a fait accompli that awaits the Commissions rubber stamp. Crest added: The Commission must be mindful of its statutory obligation under Section 309 of the Communications Act to approve only those transactions that it determines to be in the public interest. Crest also said simply rubber stamping an effectively completed transaction would risk impermissibly delegating a core Commission responsibilityverifying that the proposed deal is in fact in the public interestto SoftBank, Sprint, and Clearwire.
For these reasons, as well as those included in its previous filings with the FCC, Crest again urged the Commission to deny the proposed transaction.
D.F. King & Co, Inc. has been retained by Crest to assist it in the solicitation of proxies in opposition to the merger. If stockholder have any questions or need assistance in voting the GOLD proxy card, please call D.F. King & Co. at (800) 949-2583. The full letters to the Clearwire Board and the letter to the Clearwire stockholders can be found at http://www.dfking.com/clwr or http://www.bancroftpllc.com/crest.
About Crest Financial Limited Crest Financial Limited (Crest) is a limited partnership under the laws of the State of Texas. Its principal business is investing in securities.
Important Legal Information In connection with the proposed merger of Clearwire Corporation (Clearwire) with Sprint Nextel Corporation (the Proposed Sprint Merger), Crest and other persons (the Participants) have filed a supplement to its definitive proxy statement with the U.S. Securities and Exchange Commission (SEC). The supplement was mailed to the stockholders of
Clearwire on or around May 24, 2013. SECURITYHOLDERS OF CLEARWIRE ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT AND THE SUPPLEMENT, WHICH IS AVAILABLE NOW, AND THE PARTICIPANTS OTHER PROXY MATERIALS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING ADDITIONAL INFORMATION RELATED TO THE PARTICIPANTS, CLEARWIRE AND THE PROPOSED SPRINT MERGER. The definitive proxy statement, the supplement and all other proxy materials filed with the SEC are available at no charge on the SECs website at http://www.sec.gov. In addition, the definitive proxy statement and the supplement are also available at no charge on the website of the Participants proxy solicitor at http://www.dfking.com/clwr.
Forward-looking Statements Certain statements contained herein are forward-looking statements including, but not limited to, statements that are predications of or indicate future events, trends, plans or objectives. Undue reliance should not be placed on such statements because, by their nature, they are subject to known and unknown risks and uncertainties. Forward-looking statements are not guarantees of future activities and are subject to many risks and uncertainties. Due to such risks and uncertainties, actual events may differ materially from those reflected or contemplated in such forward-looking statements. Forward-looking statements can be identified by the use of the future tense or other forward-looking words such as believe, expect, anticipate, intend, plan, should, may, will, believes, continue, strategy, position or the negative of those terms or other variations of them or by comparable terminology.
SOURCE: Crest Financial Limited
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