As filed with the Securities and Exchange Commission on June 14, 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 646,153 $7.425 $4,797,686.03 $1,199.42
- --------------------------------------------------------------------------------------------------------------------
(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 June 12,
2001.
- -------------------
In accordance with Rule 429 under the Securities Act of 1933, the
prospectus included herein is a combined prospectus which also relates to the
Registrant's prior Registration Statements on Form S-3, File Nos. 333-55300 and
333-60026. This Registration Statement, which is a new registration statement,
also constitutes the first post-effective amendment to each of the two prior
registration statements referenced above. Such post-effective amendments shall
hereafter become effective concurrently with the effectiveness of this
Registration Statement in accordance with Section 8(a) of the Securities Act.
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.
Subject To Completion
Dated June 14, 2001
Prospectus
KVH Industries, Inc.
646,153 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 June 12, 2001, the last reported sale price for our common stock on
the Nasdaq National Market was $7.58 per share.
Our executive offices are located at 50 Enterprise Center, Middletown,
Rhode Island, 02842, and our telephone number is (401) 847-3327.
- -------------------
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 June 14, 2001
Table of Contents
Page
Where You Can Find More Information...........................................3
Information Incorporated by Reference.........................................3
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.............................4
OUR COMPANY...................................................................5
Use of Proceeds...............................................................5
Selling Stockholders..........................................................5
Plan of Distribution..........................................................6
Legal Matters.................................................................7
Experts 7
----------------
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.
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, April 19, 2001 and
June 11, 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
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone else to provide you
with additional or different information. These securities are only being
offering in states where the offer is permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the dates
on the front of this prospectus.
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
risks we discuss in our annual report and our quarterly reports and other
documents we incorporate by reference and the risks we discuss elsewhere in this
prospectus could cause our actual results to differ from any forward-looking
statements. You should consider these risks carefully before deciding to
purchase shares of our common stock.
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 account of the selling stockholders set forth below. The selling
stockholders acquired the shares being offered hereunder pursuant to a private
investment transaction in May 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 June 4, 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 10,898,046 shares of common stock outstanding as of June 4,
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 or
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 Number of Shares to be
to Offering Shares Being Beneficially Owned
Offered After Offering
----------------------------------- ------------------------
Name Number Percent Number Percent
- ------------------------- ----------------- -----------------------------------------------------
Massachusetts Mutual Life Insurance
Company 615,384 5.6% 615,384 0 0
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
Needham & Co.
445 Park Avenue 151,538 1.4% 30,769 120,769 1.1%
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:
- - 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;
- - purchases by a broker or dealer as principal and resale by such broker or
dealer for its own account pursuant to this prospectus;
- - an exchange distribution in accordance with the rules of such exchange; and
- - 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:
- - the name of each selling stockholder and of the participating
broker-dealer(s);
- - the number of shares involved;
- - the price at which such shares were sold;
- - the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
- - that such broker-dealer(s) did not conduct any investigation to verify the
information set out or incorporated by reference in this prospectus; and
- - 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
$35,200. 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.
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 $1,200
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 $35,200
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
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 14th day of June, 2001.
KVH INDUSTRIES, INC.
By: /s/ Martin Kits van Heyningen
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) June 14, 2001
/s/ Richard C. Forsyth Chief Financial Officer
Richard C. Forsyth (principal financial and accounting officer) June 14, 2001
/s/ Arent Kits van Heyningen Director June 14, 2001
Arent Kits van Heyningen
/s/ Robert Kits van Heyningen Director June 14, 2001
Robert Kits van Heyningen
/s/ Mark Ain Director June 14, 2001
Mark Ain
/s/ Stan Honey Director June 14, 2001
Stan Honey
Director
Werner Trattner
Director
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
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 4.2
AMENDED AND RESTATED BY-LAWS
OF
KVH INDUSTRIES, INC.
(As amended February 1, 1996 and May 23, 2001)
Section 1. CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1 These by-laws are subject to the certificate of incorporation of
the corporation. In these by-laws, references to the certificate of
incorporation and by-laws mean the provisions of the certificate of
incorporation and the by-laws as are from time to time in effect.
Section 2. OFFICES
2.1 Registered Office. The registered office shall be in the
city of Wilmington, county of New Castle, state of Delaware.
2.2 Other Offices. The corporation may also have offices at such other
places both within and without the state of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
Section 3. STOCKHOLDERS
3.1 Location of Meetings. All meetings of the stockholders shall be
held at such place either within or without the state of Delaware as shall be
designated from time to time by the board of directors. Any adjourned session of
any meeting shall be held at the place designated in the vote of adjournment.
3.2 Annual Meeting. The annual meeting of stockholders shall be held at
10:00 a.m. on the first Wednesday in May in each year (unless that day be a
legal holiday at the place where the meeting is to be held, in which case the
meeting shall be held at the same hour on the next succeeding day not a legal
holiday) (the "Specified Date"), or at such other date and time as shall be
designated from time to time by the board of directors, at which the
stockholders shall elect a board of directors and transact such other business
as may be required by law or these by-laws or as may properly come before the
meeting.
3.3 Special Annual Meeting in Place of Annual Meeting. If the election
for directors shall not be held on the day designated by these by-laws, the
directors shall cause the election to be held as soon thereafter as convenient,
and to that end, if the annual meeting is omitted on the day herein provided
therefor or if the election of directors shall not be held thereat, a special
meeting of the stockholders may be held in place of such omitted meeting or
election, and any business transacted or election held at such special meeting
shall have the same effect as if transacted or held at the annual meeting, and
in such case all references in these by-laws to the annual meeting of the
stockholders, or to the annual election of directors, shall be deemed to refer
to or include such special meeting. Any such special meeting shall be called and
the purposes thereof shall be specified in the call, as provided in Section 3.4.
3.4 Notice of Annual Meeting. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. Such notice may specify the business
to be transacted and actions to be taken at such meeting. No action shall be
taken at such meeting unless such notice is given, or unless waiver of such
notice is given by the holders of outstanding stock having not less than the
minimum number of votes necessary to take such action at a meeting at which all
shares entitled to vote thereon were voted. Prompt notice of all action taken in
connection with such waiver of notice shall be given to all stockholders not
present or represented at such meeting.
3.5 Other Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law or by the
certificate of incorporation, may be called by the president and shall be called
by the president or secretary at the request in writing of a majority of the
board of directors. Such request shall state the purpose or purposes of the
proposed meeting and business to be transacted at any special meeting of the
stockholders. Business transacted at any special meeting of stockholders shall
be limited to matters relating to the purpose or purposes stated in the notice
of meeting.
3.6 Notice of Special Meeting. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more than
sixty days before the date of the meeting, to each stockholder entitled to vote
at such meeting. No action shall be taken at such meeting unless such notice is
given, or unless waiver of such notice is given by the holders of outstanding
stock having not less than the minimum number of votes necessary to take such
action at a meeting at which all shares entitled to vote thereon were voted.
Prompt notice of all action taken in connection with such waiver of notice shall
be given to all stockholders not present or represented at such meeting.
3.7 Notice of Stockholder Business at Annual Meeting. The following
provisions of this Section 3.7 shall apply to the conduct of business at any
annual meeting of the stockholders. (As used in this Section 3.7, the term
annual meeting shall include a special meeting in lieu of an annual meeting.)
(a) At any annual meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting (i) pursuant to the
corporation's notice of meeting, (ii) by or at the direction of the board of
directors or (iii) by any stockholder of the corporation who is a stockholder of
record at the time of giving of the notice provided for in paragraph (b) of this
Section 3.7, who shall be entitled to vote at such meeting and who complies with
the notice procedures set forth in paragraph (b) of this Section 3.7.
(b) For business to be properly brought before any annual meeting of
the stockholders by a stockholder pursuant to clause (iii) of paragraph (a) of
this Section 3.7, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the corporation not less than sixty (60) days prior to the date for
such annual meeting, regardless of any postponements, deferrals or adjournments
of that meeting to a later date; provided, however, that if the annual meeting
of stockholders is to be held on a date prior to the Specified Date, and if less
than seventy (70) days' notice or prior public disclosure of the date of such
annual or special meeting is given or made, notice by the stockholder to be
timely must be so delivered or received not later than the close of business on
the tenth (10th) day following the earlier of the date on which notice of the
date of such meeting was mailed or the day on which public disclosure was made
of the date of such meeting. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (ii) the
name and address, as they appear on the corporation's books, of the stockholder
proposing such business, the name and address of the beneficial owner, if any,
on whose behalf the proposal is made, and the name and address of any other
stockholders or beneficial owners known by such stockholder to be supporting
such proposal, (iii) the class and number of shares of the corporation which are
owned beneficially and of record by such stockholder of record, by the
beneficial owner, if any, on whose behalf the proposal is made and by any other
stockholders or beneficial owners known by such stockholder to be supporting
such proposal, and (iv) any material interest of such stockholder of record
and/or of the beneficial owner, if any, on whose behalf the proposal is made, in
such proposed business and any material interest of any other stockholders or
beneficial owners known by such stockholder to be supporting such proposal in
such proposed business, to the extent known by such stockholder.
(c) Notwithstanding anything in these by-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 3.7. The person presiding at the annual
meeting shall, if the facts warrant, determine that business was not properly
brought before the meeting and in accordance with the procedures prescribed by
these by-laws, and if he should so determine, he shall so declare at the meeting
and any such business not properly brought before the meeting shall not be
transacted. Notwithstanding the foregoing provisions of this Section 3.7, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended (or any successor provision), and the rules and
regulations thereunder with respect to the matters set forth in this Section
3.7.
(d) This provision shall not prevent the consideration and approval or
disapproval at an annual meeting of reports of officers, Directors and
committees of the board of directors, but, in connection with such reports, no
new business shall be acted upon at such meeting unless properly brought before
the meeting as herein provided.
3.8 Stockholder List. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
3.9 Quorum of Stockholders. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise required by
law, or by the certificate of incorporation or by these by-laws. Except as
otherwise provided by law, no stockholder present at a meeting may withhold his
shares from the quorum count by declaring his shares absent from the meeting.
3.10 Adjournment. Any meeting of stockholders may be adjourned from
time to time to any other time and to any other place at which a meeting of
stockholders may be held under these by-laws, which time and place shall be
announced at the meeting, by a majority of votes cast upon the question, whether
or not a quorum is present. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
3.11 Proxy Representation. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provides for a longer period. Except as provided by
law, a revocable proxy shall be deemed revoked if the stockholder is present at
the meeting for which the proxy was given. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and, if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the corporation
generally. The authorization of a proxy may but need not be limited to specified
action, provided, however, that if a proxy limits its authorization to a meeting
or meetings of stockholders, unless otherwise specifically provided such proxy
shall entitle the holder thereof to vote at any adjourned session but shall not
be valid after the final adjournment thereof.
3.12 Inspectors. The directors or the person presiding at the meeting
may, but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum and the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the person
presiding at the meeting, the inspectors shall make a report in writing of any
challenge, question or matter determined by them and execute a certificate of
any fact found by them.
3.13 Action by Vote. When a quorum is present at any meeting, whether
the same be an original or an adjourned session, a plurality of the votes
properly cast for election to any office shall elect to such office and a
majority of the votes properly cast upon any question other than an election to
an office shall decide the question, except when a larger vote is required by
law, by the certificate of incorporation or by these by-laws. No ballot shall be
required for any election unless requested by a stockholder present or
represented at the meeting and entitled to vote in the election.
3.14 No Action by Consent. Any action required or permitted to be taken
by the stockholders of the corporation must be effected at a duly constituted
annual or special meeting of such stockholders and may not be effected by any
consent in writing by such stockholders.
Section 4. DIRECTORS
4.1 Number. The number of directors which shall constitute the whole
board shall not be less than three nor more than seven. Within the foregoing
limits, the number of directors shall be determined by resolution of the board
of directors and may be increased or decreased at any time or from time to time
by the directors by vote of a majority of directors then in office, except that
any such decrease by vote of the directors shall only be made to eliminate
vacancies existing by reason of the death, resignation or removal of one or more
directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 4.7 of these by-laws. Directors need
not be stockholders.
4.2 Tenure. Except as otherwise provided by law, by the certificate of
incorporation or by these by-laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
4.3 Classes of Directors. The board of directors shall be and is
divided into three classes: Class I, Class II and Class III. No one class shall
have more than one director more than any other class. If a fraction is
contained in the quotient arrived at by dividing the designated number of
directors by three, then, if such fraction is one-third, the extra director
shall be a member of Class III, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class II and one of the extra directors
shall be a member of Class III, unless otherwise provided from time to time by
resolution adopted by the board of directors.
4.4 Terms of Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, that each initial director in Class I shall
serve for a term ending on the date of the annual meeting in 1997; each initial
director in Class II shall serve for a term ending on the date of the annual
meeting in 1998; and each initial director in Class III shall serve for a term
ending on the date of the annual meeting in 1999; and provided further, that the
term of each director shall be subject to the election and qualification of his
successor and to his earlier death, resignation or removal.
4.5 Allocation of Directors Among Classes in the Event of Increases or
Decreases in the Number of Directors. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he is a member
and (ii) the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the board of directors among the
three classes of directors so as to ensue that no one class has more than one
director more than any other class. To the extent possible, consistent with the
foregoing rule, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the board of directors.
4.6 Powers. The business of the corporation shall be managed by or
under the direction of the board of directors which shall have and may exercise
all the powers of the corporation and do all such lawful acts and things as are
not by law, the certificate of incorporation or these by-laws directed or
required to be exercised or done by the stockholders.
4.7 Vacancies. Any vacancy in the board of directors, however
occurring, including a vacancy resulting from an enlargement of the board, shall
be filled only by a vote of a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. A director elected to fill
a vacancy shall be elected to hold office until the next election of the class
for which such director shall have been chosen, subject to the election and
qualification of his successor and to his earlier death, resignation or removal.
The directors shall have and may exercise all their powers notwithstanding the
existence of one or more vacancies in their number, subject to any requirements
of law or of the certificate of incorporation or of these by-laws as to the
number of directors required for a quorum or for any vote or other actions.
4.8 Nomination of Directors.
The following provisions of this Section 4.8 shall apply to the
nomination of persons for election to the board of directors.
(a) Nominations of persons for election to the board of directors of
the corporation may be made (i) by or at the direction of the board of directors
or (ii) by any stockholder of the corporation who is a stockholder of record at
the time of giving of notice provided for in paragraph (b) of this Section 4.8,
who shall be entitled to vote for the election of Directors at the meeting and
who complies with the notice procedures set forth in paragraph (b) of this
Section 4.8.
(b) Nominations by stockholders shall be made pursuant to timely notice
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the corporation, not less than sixty (60) days prior to the date for
the annual meeting, regardless of any postponements, deferrals or adjournments
of that meeting to a later date; provided, however, that if the annual meeting
of stockholders or a special meeting in lieu thereof is to be held on a date
prior to the Specified Date, and if less than seventy (70) days' notice or prior
public disclosure of the date of such annual or special meeting is given or
made, notice by the stockholder to be timely must be so delivered or received
not later than the close of business on the tenth (10th) day following the
earlier of the day on which notice of the date of such annual or special meeting
was mailed or the day on which public disclosure was made of the date of such
annual or special meeting. Such stockholder's notice shall set forth (x) as to
each person whom the stockholder proposes to nominate for election or reelection
as a Director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, or pursuant to any other then existing statute, rule or regulation
applicable thereto (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a Director if elected); (y)
as to the stockholder giving the notice (1) the name and address, as they appear
on the corporation's books, of such stockholder and (2) the class and number of
shares of the corporation which are beneficially owned by such stockholder and
also which are owned of record by such stockholder; and (Z) as to the beneficial
owner, if any, on whose behalf the nomination is made, (1) the name and address
of such person and (2) the class and number of shares of the corporation which
are beneficially owned by such person. The corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee as a Director.
At the request of the board of directors, any person nominated by the board of
directors for election as a Director shall furnish to the Secretary of the
corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee.
(c) No person shall be eligible to serve as a Director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 4.8. The person presiding at the meeting shall, if the facts warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by these by-laws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 4.8, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (or any successor provision), and the rules and
regulations thereunder with respect to the matters set forth in this by-law.
4.9 Committees. The board of directors may, by vote of a majority of
the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers and authority of the board of
directors in the management of the business and affairs of the corporation,
including the power to authorize the seal of the corporation to be affixed to
all papers which require it and the power and authority to declare dividends or
to authorize the issuance of stock; excepting, however, such powers which by
law, by the certificate of incorporation or by these by-laws they are prohibited
from so delegating. In the absence or disqualification of any member of such
committee and his alternate, if any, the member or members thereof present at
any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member. Except as
the board of directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by the board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these bylaws for the conduct of business by the board of
directors. Each committee shall keep regular minutes of its meetings and report
the same to the board of directors upon request.
4.10 Regular Meeting. Regular meetings of the board of directors may be
held without call or notice at such place within or without the state of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of the stockholders.
4.11 Special Meetings. Special meetings of the board of directors may
be held at any time and at any place within or without the state of Delaware
designated in the notice of the meeting, when called by the chairman, the
president or by one third or more in number of the directors, reasonable notice
thereof being given to each director by the secretary, the chairman, the
president or by any one of the directors calling the meeting.
4.12 Notice. It shall be reasonable and sufficient notice to a director
to send notice by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting, addressed to him at his usual or last
known business or residence address or to give notice to him in person or by
telephone at least twenty-four hours before the meeting. Notice of a meeting
need not be given to any director if a written waiver of notice, executed by him
before or after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. Neither notice of a meeting nor a waiver
of a notice need specify the purposes of the meeting.
4.13 Quorum. A majority of the directors at any time in office shall
constitute a quorum for the transaction of business. In the event one or more of
the directors shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each director so disqualified, provided that
in no case shall less than one-third of the number of directors fixed pursuant
to Section 1 above constitute a quorum. If at any meeting of the board of
directors there shall be less than such a quorum, a majority of those present
may adjourn the meeting from time to time.
4.14 Action by Vote. Every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present
shall be regarded as the act of the board of directors unless a greater number
is required by law, by these by-laws or by the Amended and Restated Certificate
of Incorporation of the corporation.
4.15 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if all the members of the board or of such
committee, as the case may be, consent thereto in writing, and such writing or
writings are filed with the records of the meetings of the board or of such
committee. Such consent shall be treated for all purposes as the act of the
board or of such committee, as the case may be.
4.16 Participation in Meetings by Conference Telephone. Unless
otherwise restricted by the certificate of incorporation or these by-laws,
members of the board of directors or of any committee thereof, may participate
in a meeting of such board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Such participation shall constitute presence in
person at such meeting.
4.17 Compensation. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix from time to time the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the board of
directors and the performance of their responsibilities as directors and may be
paid a fixed sum for attendance at each meeting of the board of directors and/or
a stated salary as director. No such payment shall preclude any director from
serving the corporation or its parent or subsidiary corporations in any other
capacity and receiving compensation therefor. The board of directors may also
allow compensation for members of special or standing committees for service on
such committees.
4.18 Interested Directors and Officers.
(a) No contract or transaction between the corporation and one
or more of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the board of directors or
the committee, and the board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the board of directors, a
committee thereof, or the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
4.19 Resignation or Removal of Directors. Directors of the corporation
may be removed only for cause by the affirmative vote of the holders of at least
two-thirds of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote. Any director may resign at any time by
delivering his resignation in writing to the chairman, the president or the
secretary or to a meeting of the board of directors. Such resignation shall be
effective upon receipt unless specified to be effective at some other time; and
without in either case the necessity of its being accepted unless the
resignation shall so state. No director resigning and (except where a right to
receive compensation shall be expressly provided in a duly authorized written
agreement with the corporation) no director removed shall have any right to
receive compensation as such director for any period following his resignation
or removal, or any right to damages on account of such removal, whether his
compensation be by the month or by the year or otherwise; unless in the case of
a resignation, the directors, or in the case of removal, the body acting on the
removal, shall in their or its discretion provide for compensation.
Section 5. NOTICES
5.1 Form of Notice. Whenever, under the provisions of law, or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, such notice may be given by mail, addressed to
such director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Unless written notice by mail is required by law, written notice may also be
given by telegram, cable, telecopy, commercial delivery service, telex or
similar means, addressed to such director or stockholder at his address as it
appears on the records of the corporation, in which case such notice shall be
deemed to be given when delivered into the control of the persons charged with
effecting such transmission, the transmission charge to be paid by the
corporation or the person sending such notice and not by the addressee. Oral
notice or other in-hand delivery (in person or by telephone) shall be deemed
given at the time it is actually given.
5.2 Waiver of Notice. Whenever notice is required to be given under the
provisions of law, the certificate of incorporation or these by-laws, a written
waiver thereof, signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any meeting of the stockholders, directors or members of a
committee of the directors need be specified in any written waiver of notice.
Section 6. OFFICERS AND AGENTS
6.1 Enumeration: Qualification. The officers of the corporation shall
be a chairman, a president, a treasurer, a chief financial officer, a secretary
and such other officers, if any, as the board of directors from time to time may
in its discretion elect or appoint including without limitation one or more vice
presidents. Any officer may be, but none need be, a director or stockholder. Any
two or more offices may be held by the same person. Any officer may be required
by the board of directors to secure the faithful performance of his duties to
the corporation by giving bond in such amount and with sureties or otherwise as
the board of directors may determine.
6.2 Powers. Subject to law, to the certificate of incorporation and to
the other provisions of these by-laws, each officer shall have, in addition to
the duties and powers herein set forth, such duties and powers as are commonly
incident to his office and such additional duties and powers as the board of
directors may from time to time designate.
6.3 Election. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a president, a secretary, a
treasurer and, from one of its number, a chairman. Other officers may be
appointed by the board of directors at such meeting, at any other meeting or by
written consent. At any time or from time to time, the directors may delegate to
any officer their power to elect or appoint any other officer or any agents.
6.4 Tenure. Each officer shall hold office until the first meeting of
the board of directors following the next annual meeting of the stockholders and
until his successor is elected and qualified unless a shorter period shall have
been specified in terms of his election or appointment, or in each case until he
sooner dies, resigns is removed or becomes disqualified. Each agent of the
corporation shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
6.5 President and Vice Presidents; Chairman. The president shall be the
chief executive officer and shall have general supervision of the entire
business of the corporation, subject to the control of the board of directors,
and shall have such other duties and powers as shall be designated from time to
time by the board of directors.
The chairman shall preside at all meetings of the stockholders, except
as otherwise voted by the board of directors. In the absence of the chairman,
the president shall preside at all meetings of the stockholders, except as
otherwise voted by the board of directors.
The president or treasurer shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
Any vice presidents shall have such duties and powers as shall be
designated from time to time by the board of directors or the president.
6.6 Chief Financial Officer, Treasurer and Assistant Treasurers. The
chief financial officer shall be the principal financial officer of the
corporation and shall be responsible for the corporation's financial reports.
The treasurer shall be in charge of its funds and shall be in charge of the
corporation's valuable papers, and shall have such other duties and powers as
may be assigned to such officer from time to time by the board of directors or
the president.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
6.7 Secretary and Assistant Secretaries. The secretary shall record all
proceedings of the stockholders, of the board of directors and of committees of
the board of directors in a book or series of books to be kept therefor and
shall file therein all writings of, or related to, action by stockholder or
director consent. In the absence of the secretary from any meeting, an assistant
secretary, or if there be none or he is absent, a temporary secretary chosen at
the meeting, shall record the proceedings thereof. Unless a transfer agent has
been appointed, the secretary shall keep or cause to be kept the stock and
transfer records of the corporation, which shall contain the names and record
addresses of all stockholders and the number of shares registered in the name of
each stockholder. He shall have such other duties and powers as may from time to
time be designated by the board of directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
6.8 Resignation and Removal. Any officer may resign at any time by
delivering his resignation in writing to the chairman, the president or the
secretary or to a meeting of the board of directors. Such resignation shall be
effective upon receipt unless specified to be effective at some other time, and
without in any case the necessity of its being accepted unless the resignation
shall so state. The board of directors may at any time remove any officer either
with or without cause. The board of directors may at any time terminate or
modify the authority of any agent. No officer resigning and (except where a
right to receive compensation shall be expressly provided in a duly authorized
written agreement with the corporation) no officer removed shall have any right
to any compensation as such officer for any period following his resignation or
removal, or any right to damages on account of such removal, whether his
compensation be by the month or by the year or otherwise; unless in the case of
a resignation, the directors, or in the case of removal, the body acting on the
removal, shall in their or its discretion provide for compensation.
6.9 Vacancies. If the office of the chairman or the president or the
treasurer or the secretary becomes vacant, the directors may elect a successor
by vote of a majority of the directors then in office. If the office of any
other officer becomes vacant, any person or body empowered to elect or appoint
that office may choose a successor. Each such successor shall hold office for
the unexpired term of his predecessor, and in the case of the chairman, the
president, the treasurer and the secretary until his successor is chosen and
qualified, or in each case until he sooner dies, resigns, is removed or becomes
disqualified.
Section 7. CAPITAL STOCK
7.1 Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the
president or a vice-president and (i) the treasurer or an assistant treasurer or
(ii) the secretary or an assistant secretary. Any of or all the signatures on
the certificate may be a facsimile. In case an officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent, or registrar at the time
of its issue.
7.2 Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 8. TRANSFER OF SHARES OF STOCK
8.1 Transfer on Books. Subject to any restrictions with respect to the
transfer of shares of stock, shares of stock may be transferred on the books of
the corporation by the surrender to the corporation or its transfer agent of the
certificate therefor properly endorsed or accompanied by a written assignment
and power of attorney properly executed, with necessary transfer stamps affixed,
and with such proof of the authenticity of signature as the board of directors
or the transfer agent of the corporation may reasonably require. Except as may
be otherwise required by law, by the certificate of incorporation or by these
by-laws, the corporation shall be entitled to treat the record holder of stock
as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to receive notice and to vote or to give any
consent with respect thereto and to be held liable for such calls and
assessments, if any, as may lawfully be made thereon, regardless of any
transfer, pledge or other disposition of such stock until the shares have been
properly transferred on the books of the corporation.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
Section 9. GENERAL PROVISIONS
9.1 Record Date. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty days nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action to which
such record date relates. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting. If no record date is fixed,
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
(b) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, shall be the day on which the
first written consent is expressed; and
(c) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating to such purpose.
9.2 Dividends. Dividends upon the capital stock of the corporation may
be declared by the board of directors at any regular or special meeting or by
written consent, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the certificate of
incorporation.
9.3 Payment of Dividends. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends such sum
or sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to the interest of
the corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
9.4 Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
9.5 Fiscal year. The fiscal year of the corporation shall begin on the
first day of January in each year and shall end on the last day of December next
following, unless otherwise determined by the board of directors.
9.6 Seal. The board of directors may, by resolution, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the word "Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. The seal may be altered from time to time by the board
of directors.
Section 10. INDEMNIFICATION
10.1 It being the intent of the corporation to provide maximum
protection available under the law to its officers, directors, employees and
agents, the corporation shall indemnify its officers, directors, employees and
agents to the full extent the corporation is permitted or required to do so by
the General Corporation Law of Delaware.
Section 11. AMENDMENTS
11.1 By the Board of Directors. Except as otherwise provided in Section
12, these by-laws may be altered, amended or repealed or new by-laws may be
adopted by the affirmative vote of a majority of the directors present at any
regular or special meeting of the board of directors at which a quorum is
present.
11.2 By the Stockholders. Except as otherwise provided in Section 11.3,
these by-laws may be altered, amended or repealed or new by-laws may be adopted
by the affirmative vote of a majority of the shares of capital stock of the
corporation issued and outstanding and entitled to vote at any regular or
special meeting of stockholders, provided notice of such alteration, amendment,
repeal or adoption of new by-laws shall have been stated in the notice of such
regular or special meeting.
11.3 Certain Limitations. Notwithstanding any other provision of these
by-laws, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-five percent
(75%) of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote shall be required to amend or repeal, or to
adopt any provision inconsistent with, Section 3.5, Section 3.7, Section 4 or
Section 11 of these by-laws.
Section 12. RESTRICTIONS ON SALE OF SECURITIES.
12.1 Restriction on Sale of Securities. Unless approved by the
affirmative vote of the holders of a majority of the shares of capital stock of
the corporation issued and outstanding and entitled to vote at any regular or
special meeting of stockholders, until April 30, 2006, the corporation shall not
sell or issue shares of common stock, $.01 par value, of the corporation
("Common Stock") or any other security of the corporation convertible,
exercisable or exchangeable into shares of Common Stock, for a purchase,
conversion, exercise or exchange price per share which is subject to adjustment
based on the market price of the Common Stock at the time of conversion,
exercise or exchange of such security into Common Stock;
12.2 Amendment. This Section 12 may not be amended or repealed without
the affirmative vote of the holders of a majority of the shares of capital stock
of the corporation issued and outstanding and entitled to vote at any regular or
special meeting of stockholders.
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
June 13, 2001
