Dish Launches Clearwire Bid

Satellite Giant’s $3.30 Per Share Offer Could Trump Sprint

Dish Network launched a surprise bid for Clearwire late Tuesday, offering more than $5 billion for the troubled WiMax pioneer and potentially setting the stage for a battle for control with its largest shareholder Sprint Nextel.

In a brief statement Tuesday, Dish said that it had approached Clearwire and made an offer of $3.30 per share for its outstanding stock, a bid that would appear to far outpace the $2.97 per share that Sprint-Nextel agreed to pay for the remaining shares it does not already own in the WiMax pioneer.

"We look forward to working with Clearwire's Special Committee as it evaluates our proposal," said
Dish executive vice president of corporate development Tom Cullen in a statement. Dish said it would have no further comment.

In a press release Tuesday Clearwire acknowledged that it had received an unsolicited offer from Dish, adding that it was a non-binding proposal with several conditions.

Clearwire agreed last month to a $2.2 billion deal where Sprint-Nextel would acquire the 50% of its outstanding shares the telecom giant didn’t already own for $2.97 each. Sprint had been expected to make a play for the remainder of Clearwire ever since October, when it agreed to a $20.1 billion buyout offer from Softbank. Obtaining full control of Clearwire was said to be a key part of Softbank’s interest in Sprint.

Dish Network has its own block of spectrum that it could use for its own wireless broadband service and the Clearwire spectrum could be used to further bolster that offering. But some analysts doubted Dish’s seriousness in the offer, mainly because in addition to a 50% ownership stake in Clearwire, Sprint also has blocking rights to any deal.

“It does not seem serious,” said Pivotal Research Group principal and media & communications analyst Jeff Wlodarczak. “It seems like [Dish chairman Charlie] Ergen is trying to muck things up.”

In its statement, Clearwire said that the offer is subject to several conditions, including the negotiation of multiple contractual arrangements, “some of which, as currently proposed, may not be permitted under the terms of Clearwire's current legal and contractual obligations.”

Sprint, in a letter to Clearwire, called the Dish proposal “illusory, inferior to the Sprint transaction and not viable because it cannot be implemented in light of Clearwire's current legal and contractual obligations.”

Here is the Dish proposal, according to Clearwire:

  • Spectrum Purchase. DISH would acquire from Clearwire spectrum covering approximately 11.4 billion MHz-POPs ("Spectrum Assets"), representing approximately 24% of Clearwire's total MHz pops of spectrum, for aggregate net cash proceeds to Clearwire of approximately $2.2 billion (the "Spectrum Purchase Price"). The net cash proceeds are prior to any adjustment for potential tax liabilities which are likely to arise from the sale of spectrum assets even after utilizing the existing net operating losses. At DISH's option, Clearwire would also sell or lease up to an additional 2 MHz of Clearwire's spectrum to DISH from a channel that is adjacent to the Spectrum Assets at a price to be calculated in the same manner as the Spectrum Assets.
  • Commercial Agreement. Clearwire would, at DISH's request, provide certain commercial services to DISH, including the construction, operation, maintenance, and management of a wireless network covering AWS-4 spectrum and new deployments of 2.5 GHz spectrum.
  • Acquisition of Clearwire Shares; Governance. DISH would make an offer to Clearwire's stockholders to purchase up to all of Clearwire's outstanding shares at a price of $3.30 per share in cash. This tender offer would not be dependent on Sprint's participation, but would be subject to a number of conditions, including DISH: (i) acquiring no less than 25% of the fully-diluted shares of Clearwire, (ii) being granted the right to designate Clearwire board members commensurate with its pro forma ownership percentage, (iii) receiving certain minority protections, including the right to approve material changes to Clearwire's organizational documents, change of control and material transactions with related parties (unless these transactions were approved by an independent committee of the Clearwire board and, if over a certain threshold, supported by a written fairness opinion from a nationally recognized investment bank) and (iv) receiving preemptive rights. In addition, the DISH Proposal would require Clearwire to terminate the note purchase agreement under which Sprint has agreed to provide interim financing to Clearwire and is conditional upon the consummation of the spectrum purchase and Clearwire being in compliance with the commercial agreement (both as described above).
  • Spectrum Purchase Price Funding. DISH would pre-fund the Spectrum Purchase Price within three business days of signing through a senior Unsecured PIK Debenture (the "PIK Debenture") bearing PIK interest at a rate of 6% per annum in the event the Spectrum Assets are sold to DISH or 12% per annum otherwise. Clearwire would be obligated to either apply the proceeds of the pre-funding to reduce outstanding long-term debt through the redemption or repurchase of the 2015 Senior Secured Notes and 2016 Senior Secured Notes of Clearwire Communications LLC or, in the event that a portion of the Network Build Financing described below is unavailable due to the failure to receive shareholder approval, to use an equivalent portion of the proceeds of the PIK Debenture to fund network build-out costs; in that case, any future make up draws on the Network Build Financing following shareholder approval would be applied to reduce debt as provided in this sentence. If Spectrum Assets are not acquired due to a failure to obtain required regulatory approvals, Clearwire would, within 30 days following termination of the spectrum purchase agreement, repay the PIK Debenture plus interest at 6% per annum. If Clearwire is unable to repay the PIK Debenture during this 30 day period, it would be entitled to convert the principal amount and accrued interest on the PIK Debenture into a note on terms comparable to the 2015 Senior Secured Notes previously repaid, having a maturity of December 1, 2015.
  • Network Build Financing. DISH proposes to provide additional capital to fund a portion of Clearwire's network build-out through a credit facility for the purchase of exchangeable notes on substantially similar terms to those which Sprint has agreed to provide, subject to cancellation of the Sprint Financing Agreements (as described below).
  • Deal Protections. DISH expects appropriate deal protections, including a 5-day match right, similar to those included in the Sprint Agreement. DISH would match Clearwire's termination rights as provided for in the Sprint transaction (including the possible forgiveness of a portion of the exchangeable notes upon certain termination events).
  • Sprint Financing. DISH has indicated that the proposal will be withdrawn if Clearwire draws on the financing under the Sprint Financing Agreements.