As filed with the Securities and Exchange Commission on June 1, 2001
Registration No. 333-60026
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
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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. [ ]
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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
(2)
- - - --------------------------------------------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 1,696,152 $7.93 $13,450,485.36 $3,362.62
- - - --------------------------------------------------------------------------------------------------------------------
(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 29,
2001.
(2) $3,118.80 previously paid by wire transfer 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
may determine.
Subject to Completion
Dated June 1, 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 May 29, 2001, the last reported sale price for our common stock on
the Nasdaq National Market was $7.90 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 June __, 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, Tracphone, Azimuth, Sailcomp and DataScope 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:
- satellite launches and new technology are expensive and subject to
failures; and
- 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:
- funding for military programs may be postponed;
- we are introducing new technological solutions that must be proven and
then accepted; and
- 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:
- variations in operating results;
- development delays of our proposed new products that could result in
decreased sales; and
- 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, April 2001 and May 2001 we raised a total of nineteen
million, five hundred thousand dollars ($19,500,000.00) 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:
- 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 $37,363. 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 $3,363
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 $37,363
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 attorney'
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 (previously filed)
_____________
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 1st day of June, 2001.
KVH INDUSTRIES, INC.
By: /s/Martin Kits van Heyningen
President
POWER OF ATTORNEY
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 1, 2001
/s/ Richard C. Forsyth Chief Financial Officer
Richard C. Forsyth (principal financial and accounting officer)June 1, 2001
/s/ Arent Kits van Heyningen* Director June 1, 2001
Arent Kits van Heyningen
/s/ Robert Kits van Heyningen* Director June 1, 2001
Robert Kits van Heyningen
Director
Mark Ain
/s/ Stan Honey* Director June 1, 2001
Stan Honey
Director
Werner Trattner
/s/ Charles Trimble* Director June 1, 2001
Charles Trimble
* By Martin Kits van Heyningen, as attorney-in-fact.
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 (previously filed)
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
May 31, 2001
June 1, 2001
KVH Industries, Inc.
50 Enterprise Center
Middletown, RI 02842
Ladies and Gentlemen:
We are familiar with the Amendment No. 1 to the Registration Statement on
Form S-3 (the "Registration Statement") to which this opinion is an exhibit, to
be filed by KVH Industries, Inc., a Delaware corporation (the "Company"), with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended. The Registration Statement relates to the proposed public offering by
security holders of the Company of a total of 1,696,152 shares (the "Shares") of
the Company's common stock, $0.01 par value per share ("Common Stock").
In arriving at the opinion expressed below, we have examined and relied on
the following documents:
(1) the Certificate of Incorporation and By-laws of the Company, each as
amended as of the date hereof; and
(2) records of meetings and consents of the Board of Directors of the Company
relating to the issuance of the Shares provided to us by the Company.
In addition, we have examined and relied on the originals or copies
certified or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other certificates of
public officials, officers and representatives of the Company and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion expressed below. In such examination, we
have assumed, without independent verification, the genuineness of all
signatures (whether original or photostatic), the authenticity of all documents
submitted to us as originals and the conformity to authentic original documents
of all documents submitted to us as certified or photostatic copies.
Based upon and subject to the foregoing, it is our opinion that the Shares
are legally and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/Adam Sonnenschein
A Partner
