As filed with the Securities and Exchange Commission on May 2, 2001
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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 (I.R.S. employer
of incorporation or organization) identification
number)
50 Enterprise Center
Middletown, RI 02842
(401) 847-3327
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Martin Kits van Heyningen, President
KVH Industries, Inc.
50 Enterprise Center
Middletown, RI 02842
(401) 847-3327
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Adam Sonnenschein, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum
Title of Each Class of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 1,696,152 $7.025 $11,915,467.80 $2,978.87
- --------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee. In
accordance with Rule 457(c) under the Securities Act of 1933, the estimate
is based on the average of the high and low prices reported in the
consolidated reporting system of the Nasdaq National Market on May 1, 2001.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
- 2 -
Subject To Completion
Dated May 2, 2001
Prospectus
KVH Industries, Inc.
1,696,152 Shares of Common Stock
All of the shares of our common stock covered by this prospectus are being
offered by certain of our stockholders on a delayed or continuous basis.
We will not receive any proceeds from the offering. We will bear the costs
relating to the registration of the shares being offered by this prospectus,
other than selling commissions.
The selling stockholders, or any pledgees, donees, transferees, or other
successors in interest of the selling stockholders, may offer the shares from
time to time during the effectiveness of this registration statement for sale
through the Nasdaq National Market, in the over-the-counter market, in one or
more negotiated transactions, or through a combination of methods of sale, at
prices and on terms then prevailing or at negotiated prices. The selling
stockholders may sell the shares through broker-dealers, who may receive
compensation in the form of discounts, concessions or commissions.
Our common stock is traded on the Nasdaq National Market under the symbol
"KVHI." On April 30, 2001, the last reported sale price for our common stock on
the Nasdaq National Market was $7.34 per share.
Our executive offices are located at 50 Enterprise Center, Middletown,
Rhode Island, 02842, and our telephone number is (401) 847-3327.
Investing in our common stock involves a high degree of risk.
See "Risk Factors" beginning on page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _______, 2001
Table of Contents
Page
RISK FACTORS......................................................................................................3
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.................................................................6
OUR COMPANY.......................................................................................................7
Use of Proceeds...................................................................................................7
Selling Stockholders..............................................................................................7
Plan of Distribution..............................................................................................8
Legal Matters.....................................................................................................9
Experts 9
Where You Can Find More Information..............................................................................10
Information Incorporated by Reference............................................................................10
TracVision(R), Tracphone(R), Azimuth(R), Sailcomp(R) and DataScope(R) are
registered trademarks of KVH. GyroTrac, TACNAV, and E-Core are KVH trademarks.
This prospectus also includes trademarks of companies other than KVH.
You should rely only on the information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
as of the date of this document.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should
consider carefully the risks and uncertainties described below before you decide
to buy our common stock. The risks and uncertainties described below are not the
only ones we face. If any of the following events or outcomes actually occurs,
our business, financial condition, or results of operations would likely suffer.
In that case, the trading price of our common stock could fall, and you may lose
all or part of the money you paid to buy our common stock.
Our Future Sales Growth Depends on the Introduction of New Products, and There
Is No Certainty that We Will Be Able to Introduce Such Products Economically.
Our future sales growth will depend to a considerable extent upon the
successful introduction of new mobile satellite communications products for use
in marine and land applications. Our success depends heavily on rapid completion
of these new products, particularly for worldwide Internet and data applications
and, as well as other external variables that could adversely affect us, such
as:
o satellite launches and new technology are expensive and subject to
failures; and
o poor consumer confidence and/or economic conditions could depress product
demand.
To Achieve Overall Profitability, We Need to Increase Sales of Tactical
Navigation Systems for Military Applications, and There is No Certainty that We
Will Be Able to Do So.
We need to increase tactical navigation sales over 2000 levels to
achieve overall profitability. Several issues could affect the probability of
our success:
o funding for military programs may be postponed;
o we are introducing new technological solutions that must be proven and then
accepted; and
o sales cycles are long and difficult to predict in military markets.
Our Success Depends on Our Continuing Investment in and Development of Fiber
Optic Products.
A large portion of our product development strategy for the near-future
relies upon advanced fiber optic product concepts. Expenses for fiber optic
operations will add significant costs to operations. As with any research and
development project, there can be no assurance that we will succeed with our
development concept and produce a product that has market acceptance.
Our Operating Results Have Been and May Continue to Be Volatile.
Our quarterly operating results have varied in the past and may vary
significantly in the future depending upon all the foregoing risk factors and
how successful we are in improving our ratios of revenues to expenses.
The Price of Our Common Stock Has Been and May Continue to be Volatile.
The trading price of our common stock has been subject to wide
fluctuations, and this could continue due to:
o variations in operating results;
o development delays of our proposed new products that could result in
decreased sales; and
o stock market volatility caused by industry events.
We May Be Unable to Hire and Retain the Skilled Personnel We Need to Succeed.
Qualified personnel are in great demand throughout the photonics
industry. Our success depends in large part upon our ability to attract, train,
motivate, and retain highly skilled employees, particularly engineers and other
senior personnel. Our failure to attract and retain the highly trained technical
personnel that are integral to our product development, sales, service, and
support teams may limit the rate at which we can generate sales and develop new
products or product enhancements. This could have a material adverse effect on
our business, operating results, and financial condition.
Our Success Depends on Our Ability to Protect Our Proprietary Technology.
Our success depends to a significant degree upon the protection of our
proprietary technology. The unauthorized reproduction or other misappropriation
of our proprietary technology could enable third parties to benefit from our
technology without paying us for it. This could have a material adverse effect
on our business, operating results, and financial condition. If we resort to
legal proceedings to enforce our intellectual property rights, the proceedings
could be burdensome, expensive, and involve a high degree of risk. Moreover, the
laws of other countries in which we market our products may afford little or no
effective protection of our intellectual property.
Claims By Other Companies that We Infringe Their Copyrights or Patents Could
Adversely Affect Our Financial Condition.
If any of our products violate third-party proprietary rights, we may
be required to reengineer our products or seek licenses from third parties to
continue to offer our products. Any efforts to reengineer our products or obtain
licenses on commercially reasonable terms may not be successful, and, in any
case, would substantially increase our costs and have a material adverse effect
on our business, operating results, and financial condition. We do not conduct
comprehensive patent searches to determine whether the technology used in our
products infringes patents held by third parties. In addition, product
development is inherently uncertain in a rapidly evolving technological
environment in which numerous patent applications regarding similar technologies
may be pending, many of which are confidential when filed.
Although we are generally indemnified against claims that the
third-party technology we license infringes the proprietary rights of others,
this indemnification is not always available for all types of intellectual
property rights (for example, patents may be excluded) and in some cases the
scope of such indemnification is limited. Even if we receive broad
indemnification, third-party indemnitors are not always well capitalized and may
not be able to indemnify us in the event of infringement, resulting in
substantial exposure to us. There can be no assurance that infringement or
invalidity claims arising from the incorporation of third-party technology in
our products, and claims for indemnification from our customers resulting from
these claims, will not be asserted or prosecuted against us. These claims, even
if not meritorious, could result in the expenditure of significant financial and
managerial resources in addition to potential product redevelopment costs and
delays, all of which could materially adversely affect our business, operating
results, and financial condition.
In addition, any claim of infringement could cause us to incur
substantial costs defending against the claim, even if the claim is invalid, and
could distract our management from their business. A party making a claim also
could secure a judgment that requires us to pay substantial damages. A judgment
could also include an injunction or other court order that could prevent us from
selling our products. Any of these events could have a material adverse effect
on our business, operating results, and financial condition.
Our Decision to Increase Spending Could Result in Losses and Negative Cash Flows
We have recently increased our operating expenses to take advantage of
anticipated revenue opportunities related to our Photonic Fiber and Mobile
Broadband projects. Our decision to increase spending resulted from our desire
to bring these products to market as quickly as possible in order to take
advantage of strong market conditions. Should we continue to accelerate spending
beyond current levels we could experience operating losses and negative cash
flows.
Our Decision to Increase Research and Development Expenditures Might Result in a
Continuation of Operating Losses.
For the past three years we have made significant investments in
research and development that have contributed to operating losses in each of
those years. During December 2000 and April 2001 we raised a total of fifteen
million, five hundred thousand dollars ($15,500,000.00) to accelerate our
research into two key product areas, Photonic Fiber and Mobile Broadband. Our
product development expenditures in these areas may result in a continuation of
operating losses.
We May Need Additional Funding to Complete the Development of New Products, and
There Is No Assurance that Such Funding Will Be Available to Us.
The funding required to complete the development of our new products
might not be available when required. Working capital generated by operations
may be substantially less than we require to fund both our Photonic Fiber and
Mobile Broadband projects. Under such circumstances, we may not be able to
obtain additional funding on reasonable terms and as a result, one, or both, of
these projects could be terminated prior to completion.
Our Photonic Fiber Project Is Currently in the Initial Development Stage.
We May Never Complete the Technological Development Necessary to Realize the
Full Commercial Potential of this Project.
Our Photonic Fiber project is currently in the initial development
stage. We may never complete the technological development necessary to realize
the full commercial potential of this project. We are developing photonic fiber
products to replace electro-optic components in order to create an active-fiber
networking solution that would greatly enhance the speed and power of
transmissions over fiber optic networks. Our current approach utilizes advanced
polymers and our proprietary D-fiber technology. The electro-optic polymer we
plan to use has not been tested in the core of an optical fiber and may not
function in the same manner as it does in tests outside of the fiber. In
addition, our manufacturing processes may be incapable of successfully replacing
the core of a D-shaped optical fiber with the electro-optic polymer, or the
manufacturing process may be prohibitively expensive. If we are delayed in our
development of our photonic fiber technology and/or are not first to market with
this technology, we may be unable to achieve significant market share in the
fiber optic networking market. Failure to complete development of our photonic
fiber technology will also prevent us from developing a phase shifter based on
that technology, which may impair our ability to effectively provide mobile
broadband/TV communications services to automobiles.
The Success of Our Mobile Broadband Project Depends on Product Pricing.
The success of our Mobile Broadband project depends upon our ability to
develop a technologically advanced antenna at an acceptable price for the
automotive marketplace. To date, phased array antennas have been developed at
prices far in excess of what is practical in the automotive marketplace. There
can be no assurance that we can engineer a phased array solution within the
pricing and technical parameters necessary to be successful in the automotive
marketplace.
If We Lose the Services of Martin Kits Van Heyningen, Our Business Would Suffer.
Our future success depends to a significant degree on the skills,
experience, and efforts of Martin Kits van Heyningen, KVH's president and CEO.
The loss of the services of Mr. Kits van Heyningen could have a material adverse
effect on our business, operating results, and financial condition. We also
depend on the ability of our executive officers and other members of senior
management to work effectively as a team. We do not have employment agreements
with any of our executive officers.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and in the documents that we
incorporate by reference into this prospectus contains forward-looking
statements that involve substantial risks and uncertainties. You can identify
these statements by forward-looking words such as "expect," "anticipate,"
"plan," "believe," "seek," "estimate," "internal," "backlog" and similar words.
Statements that we make in this prospectus and in the documents that we
incorporate by reference into this prospectus that are not statements of
historical fact may also be forward-looking statements. In particular,
statements that we make in "Management's Discussion and Analysis of Financial
Condition and Results of Operations" relating to our shipment level and
profitability, increased market share and the sufficiency of capital to meet
working capital and capital expenditures requirements, are forward-looking
statements. Forward-looking statements are not guarantees of our future
performance, and involve risks, uncertainties and assumptions that may cause our
actual results to differ materially from the expectations we describe in our
forward-looking statements. There may be events in the future that we are not
accurately able to predict, or over which we have no control. You should not
place undue reliance on forward-looking statements. We do not promise to notify
you if we learn that our assumptions or projections are wrong for any reason.
Before you invest in our common stock, you should be aware that the factors we
discuss in "Risk Factors" and elsewhere in this prospectus could cause our
actual results to differ from any forward-looking statements.
OUR COMPANY
KVH was organized in Rhode Island in 1978 and was reincorporated in
Delaware on August 16, 1985. We completed our initial public offering in April
1996. Our executive offices are located at 50 Enterprise Center, Middletown,
Rhode Island, 02842, and our telephone number is (401) 847-3327. References to
KVH or our Company include KVH Industries, Inc., and KVH Europe A/S, its Danish
sales subsidiary, unless the context otherwise requires.
We develop and manufacture innovative, mobile, high-bandwidth satellite
communications systems, navigation products, and fiber optic sensors, connecting
people in moving vehicles with data through channels like the Internet and the
military's "digital battlefield." Beginning with the invention of the digital
compass, we have introduced a series of innovative products, including the
development of breakthrough satellite communications products and the
integration of our fiber optic technology, throughout our product lines.
Use of Proceeds
We will not receive any proceeds from the sale of common stock being
offered in this prospectus by the selling stockholders.
Selling Stockholders
The shares covered by this prospectus are being offered for sale from
time to time during the period of effectiveness of this registration statement
for the accounts of the selling stockholders set forth below. Each of the
selling stockholders acquired the shares being offered hereunder pursuant to
private investment transactions during April 2001.
We have filed with the Securities and Exchange Commission a
registration statement on Form S-3, of which this prospectus forms a part, with
respect to the resale of the shares from time to time on the Nasdaq National
Market or in privately-negotiated transactions. We have agreed to use our best
efforts to keep such registration statement effective until two years from the
date of this prospectus, or, if earlier, until the distribution contemplated by
this prospectus has been completed.
The table below provides certain information regarding the beneficial
ownership of each selling stockholder as of May 1, 2001. Beneficial ownership is
determined in accordance with the rules of the Securities and Exchange
Commission. Except as otherwise indicated, each stockholder named in the table
has sole voting and investment power with respect to the shares set forth
opposite such stockholder's name. We have calculated the percentage beneficially
owned based upon the 10,276,497 shares of common stock outstanding as of May 1,
2001.
We do not know when or in what amounts a selling stockholder may offer
shares for sale. The selling stockholders may not sell any or all of the shares
offered by this prospectus. Because the selling stockholders may offer all of
some of the shares pursuant to this offering, and because there are currently no
agreements, arrangements or understandings with respect to the sale of any of
the shares that will be held by the selling stockholders after completion of the
offering, we can not estimate the number of shares that will be held by the
selling stockholders after completion of the offering. However, for purposes of
this table, we have assumed that, after completion of the offering, none of the
shares covered by this prospectus will be held by the selling stockholders.
The registration statement will also cover any additional shares of
common stock that become issuable in connection with the shares registered for
sale under this prospectus by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt of
consideration that results in an increase in the number of outstanding shares of
our common stock.
Shares Beneficially Owned Prior to Number of Shares to be
Offering Shares Being Beneficially Owned
Offered After Offering
------------------------------------ ------------------------
Name Number Percent Number Percent
- ------------------------- ----------------- -----------------------------------------------------
State of Wisconsin Investment Board
121 East Wilson Street 1,702,690 16.6% 307,690 1,395,000 13.6%
Madison, WI 53702
Special Situations Fund, III, L.P.
153 East 53rd Street, 55th Floor 663,402 6.5% 663,462 __ __
New York, NY 10022
Special Situations Cayman Fund, L.P.
153 East 53rd Street, 55th Floor 221,154 2.2% 221,154 __ __
New York, NY 10022
Special Situations Private Equity
Fund, L.P. 230,770 2.2% 230,770 __ __
153 East 53rd Street, 55th Floor
New York, NY 10022
Special Situations Technology Fund,
L.P. 115,384 1.1% 115,384 __ __
153 East 53rd Street, 55th Floor
New York, NY 10022
Austin Marxe 93,423 * 76,923 16,500 *
Needham & Co.
445 Park Avenue 120,769 1.2% 80,769 40,000 *
New York, NY 10027
- -----------------
* Less than 1%
Plan of Distribution
The shares may be sold from time to time by the selling stockholders,
or by pledgees, donees, transferees or other successors in interest. Sales may
be made on one or more exchanges or in the over-the-counter market, or otherwise
at prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The shares may be sold by one or
more of the following methods:
|X| a block trade in which the broker or dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
|X| purchases by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this prospectus;
|X| an exchange distribution in accordance with the rules of such exchange; and
|X| ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from the selling stockholders in
amounts to be negotiated immediately before the sale. The brokers or dealers and
any other participating brokers or dealers may be deemed to be "underwriters"
within the meaning of the Securities Act in connection with such sales, and any
commission received by them and profit on any resale of the shares as principal
might be deemed to be underwriting discounts and commissions under the
Securities Act. In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to the prospectus.
If a selling stockholder notifies us that any material arrangement has
been entered into with a broker-dealer for the sale of the shares through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(c) under the Securities Act,
disclosing the following information:
|X| the name of each selling stockholder and of the participating
broker-dealer(s);
|X| the number of shares involved;
|X| the price at which such shares were sold;
|X| the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
|X| that such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus; and
|X| other facts material to the transaction.
We have agreed to pay the expenses incurred in connection with
preparing and filing the registration statement and this prospectus other than
selling commissions. We estimate that these expenses will be approximately
$37,119. We have agreed to indemnify the selling stockholders against certain
liabilities, including liabilities under the Securities Act.
Legal Matters
The validity of the shares of common stock offered hereby will be
passed upon for us by Foley, Hoag & Eliot LLP of Boston, Massachusetts.
Experts
The consolidated financial statements and schedule included in the
Annual Report on Form 10-K of KVH Industries., Inc. for the fiscal year ended
December 31, 2000, incorporated by reference herein and elsewhere in the
Registration Statement, have been incorporated by reference herein and in the
registration statement in reliance upon the reports of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
Where You Can Find More Information
We file annual, quarterly, and current reports, proxy statements, and
other information with the Securities and Exchange Commission. We have also
filed with the Securities and Exchange Commission a registration statement on
Form S-3 under the Securities Act with respect to the common stock offered by
this prospectus. This prospectus does not contain all of the information set
forth in the registration statement. We have omitted portions of the
registration statement in accordance with the rules and regulations of the
Securities and Exchange Commission. For more information about us and our common
stock, you should refer to the registration statement. Statements in this
prospectus regarding the contents of any contract or any other document are not
necessarily complete, and, in each instance, you should refer to the copy of the
contract or document that we have filed with the Securities and Exchange
Commission. Each of our statements regarding such contract or document is
qualified in all respects by reference to the contract or document.
You may read any document that we have filed or will file with the
Securities and Exchange Commission without charge at the public reference
facilities maintained by the Securities and Exchange Commission at the following
locations:
Main Office Regional Offices
Room 1024 Suite 1400
Judiciary Plaza 500 West Madison Street
450 Fifth Street, N.W., Chicago, Illinois 60661
Washington, D.C. 20549 7 World Trade Center
Thirteenth Floor
New York, New York 10048
For a fee prescribed by the Securities and Exchange Commission, you may
obtain copies of all or any portion of the documents that we file with the
Securities and Exchange Commission from the main office of the Public Reference
Section of the Commission at the above address, or by calling the Commission at
1-800-SEC-0330. Our filings are also available to the public on the Commission's
Website at http://www.sec.gov.
Our common stock is traded on the Nasdaq National Market. Reports and other
information concerning our company may be inspected at the National Association
of Securities Dealers, Inc., 1725 K Street, N.W., Washington, D.C. 20006.
Information Incorporated by Reference
The Securities and Exchange Commission allows us to incorporate by
reference the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information that we later file with the Commission will
automatically update and supersede this information. We incorporate by reference
the following documents:
(a) Our annual report on Form 10-K for the fiscal year ended December 31, 2000;
(b) Our quarterly report on From 10-Q for the quarter ended March 30, 2001;
(c) Our current reports on Form 8-K dated January 5, 2001, and April 19, 2001;
(d) The description of the our common stock contained in the
registration statement on Form 8-A filed with the Commission
on March 26, 1996, under Section 12 of the Securities Exchange
Act, including any amendment or report filed for the purpose
of updating such description; and
(e) Any document that we file with the Securities and Exchange
Commission under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act after the date of this prospectus and
before the termination of this offering. Information in these
filings will be deemed to be incorporated by reference as of
the date we make the filing.
You may request a copy of these filings from us at no cost by writing
or calling us at the following address and telephone number:
KVH Industries, Inc.
50 Enterprise Center
Middletown, RI 02842
Attention: Chief Financial Officer
(401) 847-3327
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table provides information about the various expenses
that we will pay in connection with the issuance and distribution of the
securities being registered. All amounts shown are estimates except the
Securities and Exchange Commission registration fee and the Nasdaq National
Market listing fee. We will pay all expenses in connection with the issuance and
distribution of any securities sold by the selling stockholders, except for
discounts, concessions, commissions or other compensation due to any broker or
dealer in connection wit the sale of any of the securities offered hereby.
Securities and Exchange Commission registration fee $3,119
Nasdaq National Market Listing Fee $2,000
Legal fees and expenses $10,000
Accounting fees and expenses $10,000
Printing, EDGAR formatting, and mailing expenses $2,000
Miscellaneous $10,000
-------
TOTAL $37,119
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law affords a Delaware
corporation the power to indemnify its present and former directors and officers
under certain conditions. Article Sixth of our amended and restated certificate
of incorporation provides that we, with certain exceptions, shall indemnify each
person who at any time is, or shall have been, a director or officer of ours and
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, by reason of the fact that he or she is or was a director or
officer of KVH, or is or was serving at our request as a director, officer,
trustee of, or in a similar capacity with, another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement incurred in connection
with any such action, suit or proceeding, to the maximum extent permitted by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended. No amendment to or repeal of the provisions of Article Sixth of our
amended and restated certificate of incorporation shall deprive a director or
officer of the benefit thereof with respect to any act or failure occurring
prior to such amendment or repeal.
Section 102(b)(7) of the Delaware General Corporation Law gives a
Delaware corporation the power to adopt a charter provision eliminating or
limiting the personal liability of directors to the corporation or its
stockholders for breach of fiduciary duty as directors, provided that such
provision may not eliminate or limit the liability of directors for (a) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(b) any acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) any payment of a dividend or
approval of a stock purchase that is illegal under Section 174 of the Delaware
General Corporation Law or (d) any transaction from which the director derived
an improper personal benefit. Article Seventh of our amended and restated
certificate of incorporation provides that to the maximum extent permitted by
the Delaware General Corporation Law, no director of KVH shall be personally
liable to us or to any of our stockholders for monetary damages arising out of
such director's breach of fiduciary duty as a director of KVH. No amendment to
or repeal of the provisions of Article Seventh shall apply to or have any effect
on the liability or the alleged liability of any director of KVH with respect to
any act or failure to act of such director occurring prior to such amendment or
repeal. A principal effect of such Article Seventh is to limit or eliminate the
potential liability of our directors for monetary damages arising from breaches
of their duty of care, unless the breach involves one of the four exceptions
described in (a) through (d) above.
Section 145 of the Delaware General Corporation Law also affords a
Delaware corporation the power to obtain insurance on behalf of its directors
and officers against liabilities incurred by them in those capacities. We have
procured a directors' and officers' liability and company reimbursement
liability insurance policy that (a) insures our directors and officers of
against losses (above a deductible amount) arising from certain claims made
against them by reason of certain acts done or attempted by such directors or
officers and (b) insures us against losses (above a deductible amount) arising
from any such claims, but only if we are required or permitted to indemnify such
directors or officers for such losses under statutory or common law or under
provisions of our amended and restated certificate of incorporation or our
by-laws.
Item 16. Exhibits and Financial Statement Schedules
4.1 Amended and Restated Certificate of Incorporation (filed as Exhibit 3.3 to
our registration statement on Form S-1 (File No. 333-01258), and
incorporated herein by reference)
4.2 Amended and Restated By-Laws (filed as Exhibit 3.5 to our registration
statement on Form S-1 (File No. 333-01258), and incorporated herein by
reference)
5.1 Opinion of Foley, Hoag & Eliot LLP*
23.1 Consent of KPMG LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)*
24.1 Power of Attorney (contained on the signature page)
-------------
*To be filed by amendment
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) 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 the 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 end of
the estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" 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 (a)(1)(i) and (a)(1)(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 with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2) 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 therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) 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.
(b) 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 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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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 provisions described in Item 15, 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 or 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Middletown, Rhode Island, on this 2nd day of May 2, 2001.
KVH INDUSTRIES, INC.
By: /s/Martin Kits van Heyningen
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Martin Kits van Heyningen, and Richard
Forsyth, and each of them, his true and lawful attorneys-in-fact and agents with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all pre- and post effective amendments to this
registration statement, any subsequent registration statement for the same
offering which may be filed under Rule 462(b) under the Securities Act (the
"Rule 462(b) registration statement") and any and all pre- or post-effective
amendment thereto, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing which they, or any
of them, may deem necessary or advisable to be done in connection with this
registration statement or any Rule 462(b) registration statement, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or any
substitute or substitutes for any or all of them, 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
/s/ Martin Kits van Heyningen
----------------------------------- President and Director
Martin Kits van Heyningen (principal executive officer) May 2, 2001
/s/ Richard C. Forsyth
- ----------------------------------- Chief Financial Officer
Richard C. Forsyth (principal financial and accounting officer) May 2, 2001
/s/ Arent Kits van Heyningen Director May 2, 2001
- -----------------------------------
Arent Kits van Heyningen
/s/Robert Kits van Heyningen Director May 2, 2001
- ------------------------------------
Robert Kits van Heyningen
Director May 2, 2001
- ------------------------------------
Mark Ain
/s/ Stan Honey Director May 2, 2001
- ------------------------------------
Stan Honey
Director May 2, 2001
- ------------------------------------
Werner Trattner
/s/ Charles Trimble Director May 2, 2001
- ------------------------------------
Charles Trimble
EXHIBIT INDEX
Exhibit Number Description
4.1 Amended and Restated Certificate of Incorporation (filed as Exhibit 3.3 to
our registration statement on Form S-1 (File No. 333-01258), and
incorporated herein by reference)
4.2 Amended and Restated By-Laws (filed as Exhibit 3.5 to our registration
statement on Form S-1 (File No. 333-01258), and incorporated herein by
reference)
5.1 Opinion of Foley, Hoag & Eliot LLP*
23.1 Consent of KPMG LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)*
24.1 Power of Attorney (contained on the signature page)
*To be filed by amendment
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
KVH Industries, Inc.
We consent to the use of our reports included in the KVH Industries, Inc. Annual
Report on Form 10-K for the fiscal year ended December 31, 2000, which is
incorporated by reference herein, and to the reference to our firm under the
heading "Experts" in the prospectus.
/s/ KPMG LLP
Providence, Rhode Island
April 30, 2001