As filed with the Securities and Exchange Commission on May 4, 2005
Registration No. 333-124355
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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SKYTERRA COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 23-2368845
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
19 West 44th Street, Suite 507
New York, New York 10036
(212) 730-7540
(Address, Including Zip Code, and Telephone Number, Including Area Code
of Registrant's Principal Executive Offices)
Robert C. Lewis
Senior Vice President, General Counsel and Secretary
SkyTerra Communications, Inc.
19 West 44th Street, Suite 507
New York, New York 10036
(212) 730-7540
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copy to:
Gregory Fernicola, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
Approximate date of commencement of proposed sale to the public: From time to
time 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 of 1933, please check the
following box and list the Securities Act of 1933 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 of 1933, please check the following box and list the
Securities Act of 1933 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. [ ]
_________________
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering to be paid by
us are as follows:
SEC registration fee $13,453.67
Legal fees and expenses $125,000
Accounting fees and expenses $85,000
Blue Sky expenses $50,000
Total $273,453.67
Item 15. Indemnification of Officers and Directors.
The Company's restated certificate of incorporation, referred to
herein as the "certificate of incorporation," contains a provision which
provides that no director of the Company shall be personally liable to the
Company or its stockholders for monetary damages for a breach of fiduciary duty
as a director except for liabilities:
(i) for any breach of the director's duty of loyalty;
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(iii) for an unlawful dividend payment or an unlawful repurchase or
redemption of stock under Section 174 of the Delaware General
Corporation Law; or
(iv) for any transaction from which the director derived an improper
personal benefit.
The Company's certificate of incorporation provides that the Company
may indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Company) by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amount paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith in a manner he reasonably
believed to be in or not opposed to the best interest of the Company, and with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interest of the Company, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
The Company's certificate of incorporation provides that the Company
may indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Company to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Company, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application, that despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the court of chancery or such other court
shall deem proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above or in defense of any claim, issue
or matter therein, the Company's certificate of incorporation provides that he
will be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Any indemnification under the provisions of the Company's certificate
of incorporation (unless ordered by a court) will be made by the Company upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth above. Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
The Company's certificate of incorporation provides that the Company
may pay expenses incurred by defending a civil or criminal action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding in the manner provided herein upon receipt of any undertaking by or
on behalf of the director, officer, employee or agent to repay such amount if
it is ultimately determined that he is not entitled to be indemnified by the
Company.
The Company's certificate of incorporation provides that the
indemnification and advancement of expenses will, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
The Company's certificate of incorporation provides that the
indemnification and advancement of expenses provided therein will not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or of any disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
The Company's certificate of incorporation provides that the Company
may purchase and maintain insurance on behalf of any person who is or was
serving the Company in any capacity referred to above against any liability
asserted against him and incurred by him in such capacity, or arising out of
his status as such, whether or not the Company would have the power to
indemnify him against such liability under the provisions of its certificate of
incorporation.
The Company's amended and restated by-laws, referred to herein as the
"by-laws," provide that the Company will indemnify any director and any officer
of the Company who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, quasi-administrative or investigative, other than an
action by or in the right of the Company, referred to herein as a "Third Party
Proceeding," by reason of the fact that he or she was or is a director or
officer, employee or agent of the Company, acting solely in such capacity, or a
person serving at the request of the Company as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, committee or other enterprise 50% or more of whose voting stock or
equitable interest shall be owned by this Company, each referred to herein as
an "Authorized Representative, against his or her expenses and liabilities
(including attorneys' fees), actually and reasonably incurred by him or her in
connection with the Third Party Proceeding if he or she acted in good faith and
in a manner reasonably believed by him or her to be in, or not opposed to, the
best interests of the Company and, with respect to any Third Party Proceeding
involving potential criminal liability, referred to herein as a "Criminal Third
Party Proceeding," had no reasonable cause to believe his or her conduct was
unlawful or in violation of applicable rules. The termination of any Third
Party Proceeding by judgment, order, settlement, consent filing of a criminal
complaint or information, indictment, conviction or upon a plea of nolo
contendere or its equivalent, will not, of itself, create a presumption that
the person did not act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the Company or,
with respect to any Criminal Third Party Proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
The Company's by-laws provide that the Company will indemnify any
director or officer of the Company who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by the
Company to produce a judgment in favor of its shareholders, or any threatened,
pending or completed action or suit in the right of the Company by its
stockholders to procure a judgment in favor of the Company, referred to herein
as a "Derivative Action," by reason of the fact that the director or officer
was or is an Authorized Representative of the Company, against his or her
expenses (including attorneys' fees) actually and reasonably incurred by the
director or officer in the action if he or she acted in good faith and in a
manner reasonably believed by him or her to be in, or not opposed to, the best
interests of the Company; except that no indemnification will be made in
respect of any claim, issue or matter as to which he or she has been adjudged
to be liable for negligence or misconduct in the performance of his or her duty
to the Company unless and only to the extent that the court of common pleas, or
other similarly constituted state court, located in the county where the
registered office of the Company is located or the court in which such
Derivative Action is or was pending, determines upon application that, despite
the adjudication of liability but in view of all circumstances of the case, he
or she is fairly and reasonably entitled to indemnify for expenses which the
court deems proper.
An Authorized Representative of the Company (other than a director or
officer of the Company) may be indemnified by the Company or have his or her
expenses advanced in accordance with the procedures described below. To the
extent that an Authorized Representative of the Company has been successful on
the merits or otherwise in defense of any Third Party Proceeding or Derivative
Action or in defense of any claim, issue or matter therein, the Authorized
Representative will be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
Indemnification under the provisions of the Company's by-laws
described above (unless ordered by a court, in which case the expenses,
including attorneys' fees of the Authorized Representative in enforcing
indemnification will be added to and included in the final judgment against the
Company) will be made by the Company only as authorized in the specific case
upon a determination that the indemnification of the Authorized Representative
is required or proper in the circumstances because he or she has met the
applicable standard of conduct set forth above or has been successful on the
merits or as otherwise in defense of any Third Party Proceeding or Derivative
Action and that the amount requested has been actually and reasonably incurred.
Such determination shall be made:
(a) By the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors of the Company who
are not parties or have no economic or other collateral personal
benefit relating to a Third Party Proceeding or Derivative Action,
referred to here in as "Disinterested Directors;" or
(b) If a quorum is not obtainable or, even if obtainable, a majority
vote of a quorum of Disinterested Directors so directs, by
independent legal counsel in a written opinion.
The Company's by-laws provide that expenses incurred in defending a
Third Party Proceeding or Derivative Action will be paid on behalf of a
director or officer, and may be paid on behalf of any Authorized
Representative, by the Company in advance of the final disposition of the
action as authorized in the manner provided above (except that the person(s)
making the determination thereunder need not make a determination on whether
the applicable standard of conduct has been met unless a judicial determination
has been made with respect thereto, or the person seeking indemnification has
conceded that he or she has not met such standard) upon receipt of an
undertaking by or on behalf of the Authorized Representative to repay the
amount to be advanced unless it shall ultimately be determined that the
Authorized Representative is entitled to be indemnified by the Company as
required in the Company's by-laws or authorized by law. The financial ability
of any Authorized Representative to make repayment will not be a prerequisite
to making of an advance.
The Company's by-laws provide the Company may purchase and maintain
insurance on behalf of any person who is or was an Authorized Representative
against any expenses and liabilities asserted against him or her and incurred
by him or her in any such capacity, whether or not the Company would have the
power to indemnify him or her against such expenses and liabilities under the
provisions of the Company's by-laws.
The indemnification provided by the Company's by-laws is not deemed
to be exclusive of any other right to which a person seeking indemnification
may be entitled under any statute, agreement, vote of Disinterested Directors,
or otherwise, regardless of whether the event giving rise to indemnification
occurred before or after the effectiveness thereof, both as to action taken in
another capacity while holding his or her office or position, and will continue
as to a person who has ceased to be an Authorized Representative of the Company
and will inure to the benefit of his or her heirs and personal representatives.
Item 16. List of Exhibits.
Exhibit
Number Description
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to legality
of the common stock being registered.**
23.1 Consent of KPMG LLP.*
23.2 Consent of Deloitte & Touche LLP.*
23.3 Consent of Ernst & Young LLP.*
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.1 Power of Attorney.*
* Previously filed.
** Filed herewith.
Item 17. Undertakings.
The under signed 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
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
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement and
(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.
(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.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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-Indemnification of Directors and Officers" above, 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
Securities Act of 1933 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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on May 4, 2005.
SKYTERRA COMMUNICATIONS, INC.
By: /s/ Robert C. Lewis
---------------------------------------
Robert C. Lewis
Senior Vice President, General Counsel and
Secretary
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on the 4th day of May 2005.
* Chief Executive Officer and President
---------------------------------- (Principal Executive Officer and
Jeffrey A. Leddy Principal Financial Officer)
* Controller and Treasurer
(Principal Accounting Officer)
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Craig J. Kaufmann
* Director
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Andrew D. Africk
* Director
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Michael S. Gross
* Director
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Jeffrey M. Killeen
* Director
----------------------------------
Marc J. Rowan
* Director
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William F. Stasior
* /s/ Robert C. Lewis
----------------------------------
Robert C. Lewis
Attorney-In-Fact
Pursuant to Power of Attorney
Exhibit Index
Exhibit
Number Description
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to legality
of the common stock being registered.**
23.1 Consent of KPMG LLP.*
23.2 Consent of Deloitte & Touche LLP.*
23.3 Consent of Ernst & Young LLP.*
23.4 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
24.1 Power of Attorney.*
* Previously filed.
** Filed herewith.