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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): October 8, 1998
CELLULARVISION USA, INC.
(Exact name of registrant as specified in charter)
Delaware 000-27582 13-3853788
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
140 58th Street, Loft 7E 11220
Brooklyn, New York (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (718) 489-1200
Not Applicable
(Former name or former address, if changed from last report)
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Item 5. Other Events
LMDS Purchase Agreement
CellularVision USA, Inc. (the "Company") and WinStar Communications,
Inc. ("WinStar") have executed an amendment (the "Amendment") to the Agreement
to Purchase LMDS License, dated as of July 10, 1998 (the "LMDS Purchase
Agreement"), a copy of which is attached hereto as Exhibit 99.1 and incorporated
by reference herein. The Amendment provides for an extension of the date by
which stockholder approval of the LMDS Purchase Agreement must be obtained from
October 10, 1998 to October 20, 1998. As a result of such amendment, WinStar
will not have the right to terminate the LMDS Purchase Agreement as a result of
the failure of the Company to obtain stockholder approval of the LMDS Purchase
Agreement unless such approval is not obtained by October 20, 1998. In addition,
as amended by the Amendment, the LMDS Purchase Agreement no longer requires that
the Company hold a meeting of its stockholders in order to approve the LMDS
Purchase Agreement, thereby allowing the Company to obtain the written consent
of its stockholders in lieu of a meeting pursuant to Section 228 of the Delaware
General Corporation Law. The Company currently is soliciting the written consent
of its stockholders for approval of the transactions contemplated by the LMDS
Purchase Agreement.
Item 7. Financial Statements and Exhibits.
(a)-(b) None.
(b) Exhibits.
99.1 Amendment No. 1 to Agreement to Purchase LMDS License among
WinStar Communications, Inc., CellularVision USA, Inc. and
CellularVision of New York, L.P.
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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.
CELLULARVISION USA, INC.
By:/s/Shant S. Hovnanian
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Name: Shant S. Hovnanian
Title: Chief Executive Officer
October 9, 1998
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EXHIBIT INDEX
99.1 Amendment No. 1 to Agreement to Purchase LMDS License among
WinStar Communications, Inc., CellularVision USA, Inc. and
CellularVision of New York, L.P.
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Exhibit 99.1
AMENDMENT NO. 1 TO AGREEMENT TO PURCHASE LMDS LICENSE
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AMENDMENT NO. 1, dated as of October 6, 1998 (this
"Amendment"), to the Agreement to Purchase LMDS License, dated as of July 10,
1998 (the "Purchase Agreement"), among WinStar Communications, Inc., a Delaware
corporation ("Purchaser"), CellularVision USA, Inc., a Delaware corporation
("CVUSA") and CellularVision of New York, L.P., a Delaware limited partnership
("Seller").
WHEREAS, the parties hereto have executed and delivered the
Purchase Agreement and have agreed to amend the Purchase Agreement as set forth
in this Amendment;
NOW, THEREFORE, for good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties hereto
hereby agree as follows:
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Section 1. Definitions. Capitalized terms used but not defined in this
Amendment shall have the meanings given to such terms in the Purchase Agreement.
Section 2. Stockholder Approval. Subsection 13(a) of the Purchase Agreement is
hereby replaced in its entirety by the following new subsection 13(a):
"(a) CVUSA has obtained the approval of a majority of its
board of directors to the transactions contemplated hereby, and its
board has recommended and will continue to recommend, so long as such
recommendation is consistent with their fiduciary duties under
applicable law, that its shareholders vote to approve the transactions
contemplated hereby. CVUSA will use its best efforts to obtain
stockholder approval as promptly as practicable, and in connection
therewith will file a preliminary Schedule 14A under the Securities
Exchange Act with the Securities and Exchange Commission and will
provide to its stockholders solicitation and all other materials
required by applicable law."
Section 3. Publicity; Disclosure. Section 8 of the Purchase Agreement is hereby
amended by replacing each occurrence of the words "proxy statement" with the
words "Schedule 14A".
Section 4. Termination.
a. The last sentence of Section 6 of the Purchase Agreement is
amended by replacing such sentence with the with the following
sentence:
"Purchaser may terminate this Agreement at any time
if CVUSA has not obtained stockholder approval of this
transaction by October 20, 1998."
b. Subsection 13(c) of the Purchase Agreement is amended by
replacing the date "October 10, 1998" appearing in the first sentence
of such subsection with the date "October 20, 1998".
Section 5. Effective Date; Purchase Agreement. This Amendment shall be effective
as of the date hereof and, except as set forth herein, the Purchase Agreement
shall remain in full force and effect, shall apply to this Amendment, and shall
be otherwise unaffected hereby.
Section 6. Headings. The section headings herein are for convenience of
reference only, do not constitute part of this Amendment and will not be deemed
to limit or otherwise affect any of the provisions hereof.
Section 7. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall
constitute an original
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and all of which, when taken together, shall constitute one and the same
agreement.
Section 8. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
Section 8. Successors and Assigns. This Amendment shall be
binding upon the parties hereto and their respective successors, executors,
administrators, legal representatives, heirs and legal assigns and shall inure
to the benefit of the parties hereto and, except as otherwise provided herein,
their respective successors, executors, administrators, legal representatives,
heirs and legal assigns. No person other than the parties hereto and their
respective successors, executors, administrators, legal representatives, heirs
and legal assigns shall have any rights or claims under this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
WINSTAR COMMUNICATIONS, INC.
By:/s/T.R. Graham
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Executive Vice President
CELLULARVISION USA, INC.
By:/s/Shant S. Hovnanian
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Chief Executive Officer
CELLULARVISION OF NEW YORK, L.P.
By: CELLULARVISION CAPITAL CORP.,
its General Partner
By:/s/Shant S. Hovnanian
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President
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