- Current report filing (8-K)
December 29 2009 - 11:00AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 22, 2009
FIBERTOWER CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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000-21091
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52-1869023
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(State or other jurisdiction of
incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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185 Berry Street
Suite 4800
San Francisco, California
(Address of principal executive offices)
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94107
(Zip Code)
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Registrants telephone number, including area code:
(415)
659-3500
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01
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Entry into a Material
Definitive Agreement.
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See Item 2.03 of this
Current Report on Form 8-K for a description of the Indenture, dated as of December
22, 2009 (the Indenture), among FiberTower Corporation (the Company), as
issuer, the Guarantors (as defined below), and Wells Fargo Bank, National
Association, as trustee, governing the terms of the Companys 9.00% Senior
Secured Notes due 2016 (the New Notes).
The information included in Item 2.03 is incorporated into this Item
1.01 by reference.
In connection with the
Mandatory Redemption (as defined below), the Company entered into a
Registration Rights Agreement, dated December 22, 2009, with certain holders of
the Interim Notes (as defined below) pursuant to which the Company is required,
as soon as practicable after the date of the Mandatory Redemption, to file a
shelf registration statement (the Shelf Registration Statement) with the SEC
covering the resale of the New Notes, the related guarantees and the shares of
common stock issued in the Mandatory Redemption, as well as all other shares of
common stock beneficially owned by the holders of the Interim Notes at the time
of the Mandatory Redemption or thereafter acquired by such holders and all New
Notes issued to such holders in the future as payment for a portion of the
interest on the New Notes. The Company also
agreed to use its commercially reasonable efforts to have the Shelf
Registration Statement become effective as soon as practicable after the
occurrence of the Mandatory Redemption, but no later than 120 days after the
date of the Mandatory Redemption.
The description of the
provisions of the Registration Rights Agreement set forth above is qualified in
its entirety by reference to the full and complete terms of such agreement, a
copy of which is attached to this report as an exhibit hereto and is incorporated
by reference herein.
Item 2.03
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Creation of a Direct Financial
Obligation or an Obligation under on Off-Balance Sheet Arrangement of a
Registrant.
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On December 22,
2009, the Company redeemed (the Mandatory Redemption) all of the $266,791,438
in principal amount of its 9.00% Mandatorily Redeemable Convertible Senior
Secured Notes due 2012 (the Interim Notes).
Each $1,000.00 in principal amount of the Interim Notes was redeemed for
$47.65 in cash, 114.616 shares of the Companys common stock, and $425.46 in
principal amount of New Notes. The
Company paid a total of approximately $12.7 million in cash and issued a total
of 30,578,567 shares of common stock and $113,509,084 in principal amount of
New Notes in the Mandatory Redemption.
The Company issued the New
Notes pursuant to the Indenture. The New
Notes are fully and unconditionally guaranteed (the Guarantees), jointly and
severally, on a senior secured basis by each of the Companys existing and
future domestic restricted subsidiaries (the Guarantors), including the
subsidiary (the License Subsidiary) which holds all of the Companys Federal
Communications Commission (FCC) licenses. The Guarantees may be released in certain instances.
The New Notes will be
treated, for U.S. federal income tax purposes, as issued with original issue
discount because the interest payable on the New Notes will not constitute qualified
stated interest under applicable rules and because the principal amount of the
New Notes may exceed their issue price.
Consequently, the New Notes will be treated as issued at a discount and
U.S. holders will be required to include original issue discount in gross
income for U.S. federal income tax purposes.
The New Notes will mature on
January 1, 2016. The New Notes bear
interest at 9.00% per annum on the principal amount accruing from December 22,
2009, payable semi-annually in arrears on January 1 and July 1 of each year,
beginning July 1, 2010. One third of the
interest of the New Notes will be payable in cash and two thirds of the
interest will be payable by the issuance of additional New Notes in the
principal amount equal to such portion of the interest. An amount sufficient to pay the first six
cash interest payments on the New Notes has been deposited by the Company into
an escrow account.
The Interim Notes and the
Guarantees are the Companys and the Guarantors senior secured obligations and
rank
pari passu
in right of
payment to all of the Companys and the Guarantors existing and future senior
indebtedness, including the Companys existing 9.00% Convertible Senior Secured
Notes due 2012 (the Existing Notes). In
1
addition, the New Notes rank
senior to any of the Companys and the Guarantors existing and future
subordinated indebtedness.
The New Notes
and the Guarantees are secured, to the extent permitted by law, by a first
priority pledge (subject to permitted liens) of substantially all of the assets
of the Company and the Guarantors (it being understood that the Communications
Act of 1934 currently prohibits the grant of a security interest in an FCC
license), other than certain excluded assets, and by a first priority pledge
(subject to permitted liens) of the stock or other equity interests of all of
the Guarantors, subject, in each case, to (1) a prior lien on current assets
and a
pari passu
lien on long-term assets to
secure a working capital facility up to an aggregate principal amount of $20.0 million
and (2) a second priority lien on such assets and stock or other equity
interests (other than the assets and equity interests of the License Subsidiary)
securing the Existing Notes, in each case pursuant to the terms of an
intercreditor agreement.
The Indenture contains
covenants that restrict the ability of the Company and its subsidiaries to
borrow additional money, to make certain restricted payments, including, but
not limited to, paying dividends on the Companys stock or its restricted subsidiaries
stock, or issuing, selling or repurchasing the Companys stock or its
restricted subsidiaries stock, to transfer or sell assets, to create liens, to
create restrictions on the ability of the Companys subsidiaries to pay
dividends or make loans to the Company, to merge or consolidate, to enter into
transactions with affiliates, and to engage in certain business activities. These covenants are subject to a number of
important exceptions and qualifications.
If an event of default on
the New Notes has occurred and is continuing, the aggregate principal amount of
the Interim Notes, plus any accrued and unpaid interest, may be declared
immediately due and payable. These amounts automatically become due and payable
upon certain events of default.
The description of the
provisions of the Indenture, the New Notes and the Guarantees set forth above
in Items 1.01 and 2.03 of this Current Report on Form 8-K is qualified in its
entirety by reference to the full and complete terms of such agreements, copies
of which are attached to this report as exhibits hereto and are incorporated by
reference herein.
Item 3.02
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Unregistered Sales of Equity
Securities.
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The securities issued in the
Mandatory Redemption were issued pursuant to the exemption from the registration
requirements of the Securities Act of 1933 (the Securities Act) contained in Section
3(a)(9) of the Securities Act, and an exemption from state securities law
requirements by virtue of Section 18(b)(4)(c) of the Securities Act.
The information included in
Item 2.03 of this Current Report on Form 8-K is incorporated into this Item
3.02 by reference.
Item 5.02
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Departure of Directors or
Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
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On December 24, 2009, Messrs. Randall A.
Hack, Mark E. Holliday and John Kevin Braniff were appointed to the Companys
Board of Directors to fill three of the vacancies created by the previously
announced resignations of five members of the Board of Directors, including Messrs.
Hack and Holliday, which resignations were effective as of December 22,
2009. Messrs. Hack and Holliday are
being reappointed to the Board of Directors as members of the class of
directors whose terms will expire at the Companys 2010 annual meeting of
stockholders. Mr. Braniff is being
appointed to the class of directors whose terms will expire at the Companys
2011 annual meeting of stockholders.
In addition, Mr. Hack is being appointed to
the Compensation Committee, Mr. Holliday is being appointed to the Audit
Committee (Chairman), and Mr. Braniff is being appointed to the Nominating and
Corporate Governance Committee (Chairman) and the Audit Committee.
2
On December 22,
2009, as described in Item 2.03 above, the Company redeemed all of its issued
and outstanding 9.00% Mandatorily Redeemable Convertible Senior Secured Notes
due 2012.
On December 23,
2009, the Company issued a press release announcing the redemption of all of
its issued and outstanding 9.00% Mandatorily Redeemable Convertible Senior
Secured Notes due 2012. A copy of the
press release is attached as Exhibit 99.1 to this Current Report on Form 8-K
and is incorporated herein by reference.
Item 9.01
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Financial Statements and
Exhibits.
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(d) Exhibits
Exhibit
Number
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Description
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4.1
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Indenture, dated as of
December 22, 2009, among FiberTower Corporation, as issuer, the guarantors
named therein, and Wells Fargo Bank, National Association, as trustee.
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4.2
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Form of 9.00% Senior
Secured Note due 2016, including form of Guarantee (included in Exhibit 4.1).
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10.1
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Registration
Rights Agreement, dated December 22, 2009, among FiberTower Corporation, the
subsidiaries of FiberTower Corporation party thereto, and the noteholders
party thereto.
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99.1
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Press
release, dated December 23, 2009.
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3
SIGNATURES
Pursuant to
the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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FIBERTOWER
CORPORATION
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Date: December 29, 2009
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By:
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/s/
Thomas A. Scott
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Name:
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Thomas
A. Scott
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Title:
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Chief Financial Officer
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4
EXHIBIT INDEX
Exhibit
Number
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Description
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4.1
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Indenture, dated as of
December 22, 2009, among FiberTower Corporation, as issuer, the guarantors
named therein, and Wells Fargo Bank, National Association, as trustee.
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4.2
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Form of 9.00% Senior
Secured Note due 2016, including form of Guarantee (included in Exhibit 4.1).
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10.1
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Registration
Rights Agreement, dated December 22, 2009, among FiberTower Corporation, the
subsidiaries of FiberTower Corporation party thereto, and the noteholders
party thereto.
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99.1
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Press
release, dated December 23, 2009.
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5
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