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): May 20, 2019

 

 

pdvWireless, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-36827   33-0745043

(State or other jurisdiction

of incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

3 Garret Mountain Plaza

Suite 401

Woodland Park, NJ

  07424
(Address of principal executive offices)   (Zip Code)

(973) 771-0300

Registrant’s telephone number, including area code

Not applicable

(Former name or former address, if changed since last report)

 

 

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:

 

☐

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12(b))

 

☐

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Common Stock, $0.0001 par value

 

The NASDAQ Stock Market LLC

 

PDVW

(Title of each class)  

(Name of each exchange

on which registered)

  (Trading symbol)

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☒

 

 

 

Item 8.01.

Other Events.

pdvWireless, Inc. (the “Company”) previously entered into a Controlled Equity Offering SM  Sales Agreement with Cantor Fitzgerald & Co. and a Sales Agreement with B. Riley FBR, Inc. (collectively, the “Sales Agreements”) on February 6, 2018, and included up to $40,000,000 of shares of its common stock for sale pursuant to the Sales Agreements under a prospectus supplement and related Form S-3 registration statement. The Company did not sell any shares pursuant to the Sales Agreements under the prospectus supplement.

As a result of the registration statement expiring in connection with the Company filing a new registration statement on Form S-3, the Company filed a prospectus supplement on May 20, 2019 to move up to $40,000,000 of the shares of common stock that can be sold pursuant to the Sales Agreements to the outstanding Form S-3 registration statement that does not expire until April 22, 2022. The Company is not including any additional shares for sale pursuant to the Sales Agreements.

The purpose of this Current Report on Form 8-K is to file a copy of an opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP relating to the legality of the shares of common stock that may be issued pursuant to the Sales Agreements and the prospectus supplement, attached as Exhibit 5.1 to this Current Report on Form 8-K.

 

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit
No.

  

Description

  5.1    Opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP.
23.1    Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (included in Exhibit 5.1).

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.

 

      pdvWireless, Inc.
Date: May 20, 2019      

/s/ Morgan E. O’Brien

      Morgan E. O’Brien
      Chief Executive Officer

Exhibit 5.1

 

LOGO

May 20, 2019

pdvWireless, Inc.

3 Garret Mountain Plaza, Suite 401

Woodland Park, NJ 07424

Ladies and Gentlemen:

We have acted as counsel to pdvWireless, Inc., a Delaware corporation (the “ Company ”), and you have requested our opinion with respect to certain matters in connection with the offering by the Company of the number of authorized but unissued shares having aggregate sale proceeds of up to $40 million (the “ Shares ”) of the Company’s common stock, par value $0.0001 (the “ Common Stock ”), to be issued pursuant to the Registration Statement on Form S-3 (File No. 333-230847) originally filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Act ”), on April 12, 2019 (the “ Registration Statement ”), the related prospectus dated April 22, 2019, included in the Registration Statement (the “ Base Prospectus ”), and the prospectus supplement to be filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Act (the “ Prospectus Supplement ”). The Base Prospectus and the Prospectus Supplement are collectively referred to as the “ Prospectus .” The Shares are to be sold by the Company in accordance with a Controlled Equity Offering SM Sales Agreement and a Sales Agreement (collectively, the “ Sales Agreements ”), dated February 6, 2018, by and between the Company and Cantor Fitzgerald & Co. and B. Riley FBR. Inc., respectively, as described in the Prospectus Supplement.

In connection with this opinion, we have examined and relied upon the Registration Statement, the Prospectus, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, as currently in effect, and the originals or copies certified to our satisfaction of such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. With your consent, we have relied upon certificates and other assurances of officers of the Company as to factual matters without having independently verified such factual matters. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents submitted to us as copies thereof and the due execution and delivery by all parties other than the Company of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.

This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the Prospectus, other than as expressly stated herein with respect to the issue of the Shares. Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware and we express no opinion with respect to any other laws. Our opinion is based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, when the Shares to be issued and sold by the Company are issued and paid for in accordance with the terms of the Sales Agreements, such Shares will be validly issued, fully paid and nonassessable.

 

LOGO

pdvWireless, Inc.

May 20, 2019

Page 2

 

We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement and to the filing of this opinion as an exhibit to a Current Report of the Company on Form 8-K. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP

GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP