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Commission file number: 0-28082
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
KVH Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 05-0420589
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 Enterprise Center, Middletown, Rhode Island 02842
(Address of principal executive offices) (Zip Code)
KVH Industries, Inc. Amended and Restated 1995 Incentive Stock Option Plan
KVH Industries, Inc. 1996 Incentive and Nonqualified Stock Option Plan
KVH Industries, Inc. 1996 Employee Stock Purchase Plan
(Full title of the plan)
Martin A. Kits van Heyningen, Chief Executive Officer
KVH Industries, Inc.
110 Enterprise Center
Middletown, RI 02842
(401) 847-3327
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
Adam Sonnenschein, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share price
Common Stock .. 736,069
(par value $.01) shares $1.22 (1) $ 898,004 $ 309.66
Common Stock .. 3,931
(par value $.01 shares $8.00 (2) $ 31,448 $ 10.84
Common Stock .. 247,500
(par value $.01) shares $7.84 (3) $1,940,400 $ 669.10
Common Stock .. 667,500
(par value $.01) shares $8.00 (4) $5,340,000 $1,841.38
Common Stock .. 150,000
(par value $.01) shares $8.00 (5) $1,200,000 $ 413.79
Totals 1,805,000 $9,409,852 $3,244.77
shares
(1) For shares issuable pursuant to stock options under the Amended and
Restated 1995 Incentive Stock Option Plan granted through July 17,
1996, calculated pursuant to Rule 457(h) based on the exercise price
of such options.
(2) For shares issuable pursuant to stock options under the Amended and
Restated 1995 Incentive Stock Option Plan not granted as of July 17,
1996, estimated pursuant to Rule 457(c) based on the average of the
high and low prices of the Common Stock as reported in the National
Association of Securities Dealers Automated Quotation National Market
System (the "Nasdaq NMS") on July 17, 1996.
(3) For shares issuable pursuant to stock options under the 1996 Incentive
and Nonqualified Stock Option Plan granted through July 17, 1996,
calculated pursuant to Rule 457(h) based on the exercise price of such
options.
(4) For shares issuable pursuant to the 1996 Incentive and Nonqualified
Stock Option Plan not granted as of June 28, 1996, estimated pursuant
to Rule 457(c) based on the average of the high and low prices of the
Common Stock as reported on the Nasdaq NMS on July 17, 1996.
(5) For all shares issuable pursuant to the 1996 Employee Stock Purchase
Plan, pursuant to Rule 457(c) and (h) based on 85% of the average of
the high and low prices of the Common Stock as reported on the Nasdaq
NMS on July 17, 1996.
page 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
("Commission") are incorporated in this registration statement by
reference:
(a) Registration Statement of KVH Industries, Inc. (the "Company") on Form
S-1, File No. 333-01258, as declared effective by the Commission on
March 28, 1996, including a Prospectus dated April 2, 1996; and
(b) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on March
27, 1996 under Section 12 of the Securities Exchange Act of 1934,
including any amendment or description filed for the purpose of
updating such description.
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part thereof from the date of filing
of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides as follows:
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
page 3
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and
(b) of this section, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the directors
who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written
opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors
deems appropriate.
page 4
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such
liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to
the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; reference to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to
the best interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligations to advance expenses (including attorneys'
fees)."
Article 10 of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall indemnify its officers,
directors, employees and agents to the full extent the Company is
permitted or required to do so by the General Corporation Law of
Delaware.
The effect of these provisions would be to permit such indemnification by
the Company for liabilities arising out of the Securities Act of 1933.
The Company has a Directors' and Offices' Liability insurance policy
insuring its directors and officers for certain claims up to
$5,000,000.00.
Item 7. Exemption from Registration Claimed.
Not applicable.
page 5
Item 8. Exhibits.
4.1 KVH Industries, Inc. Amended and Restated 1995 Incentive Stock Option
Plan. (Filed as an exhibit to the Company's Registration Statement on
Form S-1, File No. 333-01258, as declared effective by the Commission
on March 28, 1996 and incorporated herein by reference.)
4.2 KVH Industries 1996 Employee Stock Purchase Plan, as amended. (Filed
as an exhibit to the Company's Registration Statement on Form S-1,
File No. 333-01258, as declared effective by the Commission on March
28, 1996 and incorporated herein by reference.)
4.3 KVH Industries, Inc. 1996 Incentive and Nonqualified Stock Option
Plan. (Filed as an exhibit to the Company's Registration Statement on
Form S-1, File No. 333-01258, as declared effective by the Commission
on March 28, 1996 and incorporated herein by reference.)
5.1 Opinion of Counsel.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained on the signature page).
Item 9. Undertakings.
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
page 6
2. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs 2(a)(i) and 2(a)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
page 7
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer of controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
page 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Middletown,
Rhode Island on the 19th day of July, 1996.
KVH INDUSTRIES, INC.
By:
Martin A. Kits van Heyningen
President and Chief Executive Officer
page 9
EXHIBIT INDEX
Exhibit
No. Description Page
4.1 KVH Industries, Inc. Amended and Restated 1995 Incentive Stock
Option Plan.*
4.2 KVH Industries, Inc. 1996 Incentive and Nonqualified Stock
Option Plan.*
4.3 KVH Industries, Inc. 1996 Employee Stock Purchase Plan,
as amended.*
5.1 Opinion of Counsel 12
23.1 Consent of Independent Accountants 14
23.2 Consent of Counsel (included in Exhibit 5.1) 13
24.1 Power of Attorney 11
*Filed as an exhibit to the Company's Registration Statement on Form S-1,
File No. 333-01258, as declared effective by the Commission on March
28, 1996 and incorporated herein by reference. * Filed as an exhibit
to the Company's Registration Statement on Form S-1, File No.
333-01258, as declared effective by the Commission on March 28, 1996
and incorporated herein by reference.
page 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Martin A. Kits van Heyningen
his true and lawful attorney-in-fact and agent with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform
each and every act and thing which he may deem necessary or advisable
to be done in connection with this Registration Statement, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or
any substitute or substitutes for him, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Chief Executive July 19, 1996
Martin A. Kits van Heyningen Officer and Director
(Principal Executive
Officer)
Chief Financial Officer July 19, 1996
Richard C. Forsyth (Principal Financial
and Accounting Officer)
Director July 19, 1996
Arent H. Kits van Heyningen
Director July 19, 1996
Robert W.B. Kits van Heyningen
Director July 19, 1996
James A. Saalfield
Director July 19, 1996
Michael F. Schiavo
Director July 19, 1996
Werner Trattner
page 11
EXHIBIT 5.1
July 19, 1996
KVH Industries, Inc.
110 Enterprise Center
Middletown, RI 02842
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the
"S-8 Registration Statement") filed today with the Securities and
Exchange Commission by KVH Industries, Inc, a Delaware corporation
(the "Company") relating to 740,000 shares of the Company's Common
Stock (the "Common Stock") issuable pursuant to the Company's Amended
and Restated 1995 Stock Option Plan (the "1995 Plan"), 915,000 shares
of the Company's Common Stock issuable to the Company's 1996 Incentive
and Nonqualified Stock Option Plan (the"1996 Plan"), and 150,000
shares of the Company's Common Stock issuable pursuant to the 1996
Employee Stock Purchase Plan (the "Stock Purchase Plan")
(collectively, the "Plans").
We are familiar with the Company's Certificate of Incorporation,
its By-Laws, the records of all meeting and consents of its Board of
Directors and of its stockholders, and its stock records. We have
examined such other records and documents as we deemed necessary or
appropriate for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that (a) the
Company has corporate power adequate for the issuance in the manner
set forth in the S-8 Registration Statement of the 1,805,000 shares of
its Common Stock to be issued pursuant to the Plans and offered
pursuant to the S-8 Registration Statement, (b) the Company has taken
all necessary corporate action required to authorize the issuance and
sale of such 1,805,000 shares and (c) when certificates for such
shares have been duly executed and countersigned and delivered against
due receipt of the exercise price for such shares as described in the
Plans, such shares will validly and legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as part of the
S-8 Registration Statement.
Very truly yours,
Foley, Hoag & Eliot LLP
page 12
July 19, 1996
KVH Industries, Inc.
110 Enterprise Center
Middletown, RI 02842
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the
"S-8 Registration Statement") filed today with the Securities and
Exchange Commission by KVH Industries, Inc, a Delaware corporation
(the "Company") relating to 740,000 shares of the Company's Common
Stock (the "Common Stock") issuable pursuant to the Company's Amended
and Restated 1995 Stock Option Plan (the "1995 Plan"), 915,000 shares
of the Company's Common Stock issuable to the Company's 1996 Incentive
and Nonqualified Stock Option Plan (the"1996 Plan"), and 150,000
shares of the Company's Common Stock issuable pursuant to the 1996
Employee Stock Purchase Plan (the "Stock Purchase Plan")
(collectively, the "Plans").
We are familiar with the Company's Certificate of Incorporation,
its By-Laws, the records of all meeting and consents of its Board of
Directors and of its stockholders, and its stock records. We have
examined such other records and documents as we deemed necessary or
appropriate for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that (a) the
Company has corporate power adequate for the issuance in the manner
set forth in the S-8 Registration Statement of the 1,805,000 shares of
its Common Stock to be issued pursuant to the Plans and offered
pursuant to the S-8 Registration Statement, (b) the Company has taken
all necessary corporate action required to authorize the issuance and
sale of such 1,805,000 shares and (c) when certificates for such
shares have been duly executed and countersigned and delivered against
due receipt of the exercise price for such shares as described in the
Plans, such shares will validly and legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as part of the
S-8 Registration Statement.
Very truly yours,
Foley, Hoag & Eliot LLP
page 13
The Board of Directors
KVH Industries, Inc.
110 Enterprise Center
Middletown, RI 02840
Ladies and Gentlemen:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Providence, Rhode Island
July 19, 1996
page 14