Form SC 13D KVH INDUSTRIES INC \DE\ Filed by: VIEX Capital Advisors, LLC

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

(Rule 13d-101)

 

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

 

(Amendment No. )¹

 

KVH Industries, Inc.

(Name of Issuer)

 

Common Stock, $0.01 par value

(Title of Class of Securities)

 

482738101

(CUSIP Number)

 

STEVE WOLOSKY, ESQ.

ELIZABETH GONZALEZ-SUSSMAN, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

 

April 6, 2021

(Date of Event Which Requires Filing of This Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

 

_______________ 

¹       The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

	1		NAME OF REPORTING PERSON
				VIEX Opportunities Fund, LP – Series One*
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				WC
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				DELAWARE
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							700,350
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							700,350
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				700,350
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				3.8%
	14		TYPE OF REPORTING PERSON
				PN

_____________

* This Series One is part of a series of VIEX Opportunities Fund, LP, a series limited partnership.

 

 

	1		NAME OF REPORTING PERSON
				VIEX Special Opportunities Fund II, LP
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				WC
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				DELAWARE
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							267,658
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							267,658
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				267,658
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				1.5%
	14		TYPE OF REPORTING PERSON
				PN

 

 

	1		NAME OF REPORTING PERSON
				VIEX GP, LLC
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				AF
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				DELAWARE
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							700,350
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							700,350
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				700,350
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				3.8%
	14		TYPE OF REPORTING PERSON
				OO

 

 

	1		NAME OF REPORTING PERSON
				VIEX Special Opportunities GP II, LLC
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				AF
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				DELAWARE
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							267,658
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							267,658
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				267,658
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				1.5%
	14		TYPE OF REPORTING PERSON
				OO

 

 

	1		NAME OF REPORTING PERSON
				VIEX Capital Advisors, LLC
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				AF
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				DELAWARE
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							968,008
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							968,008
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				968,008
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				5.3%
	14		TYPE OF REPORTING PERSON
				IA

 

 

	1		NAME OF REPORTING PERSON
				Eric Singer
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				AF
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				USA
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							968,008
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							968,008
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				968,008
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				5.3%
	14		TYPE OF REPORTING PERSON
				IN

 

 

	1		NAME OF REPORTING PERSON
				John Mutch
	2		CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP															(a) ☐
																		(b) ☐
	3		SEC USE ONLY
	4		SOURCE OF FUNDS
				AF
	5		CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)															☐
	6		CITIZENSHIP OR PLACE OF ORGANIZATION
				USA
NUMBER OF				7		SOLE VOTING POWER
SHARES
BENEFICIALLY							- 0 -
OWNED BY				8		SHARED VOTING POWER
EACH
REPORTING							- 0 -
PERSON WITH				9		SOLE DISPOSITIVE POWER
							- 0 -
				10		SHARED DISPOSITIVE POWER
							- 0 -
	11		AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
				- 0 -
	12		CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES															☐
	13		PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
				0%
	14		TYPE OF REPORTING PERSON
				IN

 

 

The following constitutes the Schedule 13D filed by the undersigned (the “Schedule 13D”).

 

Item 1.

Security and Issuer.

 

This statement relates to the Common Stock, $0.01 par value (the “Shares”), of KVH Industries, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 50 Enterprise Center, Middletown, RI 02842.

 

Item 2.

Identity and Background.

 

(a)

This statement is filed by:

 

(i)

VIEX Opportunities Fund, LP – Series One (“Series One”), a series of VIEX Opportunities Fund, LP, a Delaware series limited partnership, with respect to the Shares directly and beneficially owned by it;

 

(ii)

VIEX Special Opportunities Fund II, LP (“VSO II”), a Delaware limited partnership, with respect to the Shares directly and beneficially owned by it;

 

(iii)         VIEX GP, LLC (“VIEX GP”), a Delaware limited liability company, as the general partner of Series One;

 

(iv)

VIEX Special Opportunities GP II, LLC (“VSO GP II”), a Delaware limited liability company, as the general partner of VSO II;

 

(v)

VIEX Capital Advisors, LLC (“VIEX Capital”), a Delaware limited liability company, as the investment manager of each of Series One and VSO II;

 

(vi)

Eric Singer, as managing member of each of VIEX GP, VSO GP II, and VIEX Capital, and as a nominee for the Board of Directors (the “Board”) of the Issuer; and

 

(vii)

John Mutch (together with Mr. Singer, the “Nominees”), as a nominee for the Board.

 

Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons” or “we.” Each of the Reporting Persons is party to that certain Group Agreement as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.

 

(b)       The address of the principal office of each of Series One, VSO II, VIEX GP, VSO GP II, VIEX Capital, and Mr. Singer (collectively, “VIEX”) is 323 Sunny Isles Blvd, Suite 700, Sunny Isles Beach, Florida 33160. The principal business address of Mr. Mutch is 1735 W. Pebble Road, Las Vegas, Nevada 89123.

 

(c)       The principal business of Series One and VSO II is investing in securities. The principal business of VIEX GP is acting as the general partner of Series One. The principal business of VSO GP II is acting as the general partner of VSO II. The principal business of VIEX Capital is serving as the investment manager to Series One and VSO II. The principal occupation of Mr. Singer is serving as the managing member of each of VIEX GP, VSO GP II, and VIEX Capital. The principal occupation of Mr. Mutch is as a private investor.

 

 

(d)       No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

(e)       No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

(f)       Each of Series One, VSO II, VIEX GP, VSO GP II and VIEX Capital is organized under the laws of the State of Delaware. Messrs. Mutch and Singer are citizens of the United States of America.

 

Item 3.

Source and Amount of Funds or Other Consideration.

 

The Shares purchased by Series One were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 700,350 Shares beneficially owned by Series One is approximately $8,551,110, including brokerage commissions.

 

The Shares purchased by VSO II were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein. The aggregate purchase price of the 267,658 Shares beneficially owned by VSO II is approximately $2,483,839, including brokerage commissions.

 

Item 4.

Purpose of Transaction.

 

The Reporting Persons purchased the securities of the Issuer based on the Reporting Persons’ belief that such securities, when purchased, were undervalued and represented an attractive investment opportunity. Depending upon overall market conditions, other investment opportunities available to the Reporting Persons, and the availability of securities of the Issuer at prices that would make the purchase or sale of such securities desirable, the Reporting Persons may endeavor to increase or decrease their position in the Issuer through, among other things, the purchase or sale of securities of the Issuer on the open market or in private transactions or otherwise, on such terms and at such times as the Reporting Persons may deem advisable.

 

On January 14, 2021, Series One delivered a letter to the Issuer (the “Nomination Notice”) nominating Messrs. Mutch and Singer for election to the Board at the Issuer’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”). The Reporting Persons believe the Nominees have the necessary experience, qualifications, and skill sets to serve as directors of the Issuer, which are described in more detail in their biographies below.

 

The Reporting Persons believe the Issuer has been run like a private company with a Board that does not appear to us to provide the necessary oversight to create value for stockholders. We view this election as a referendum on the Issuer’s poor corporate governance and long term underperformance. The Reporting Persons own more Shares than the Issuer’s Chief Executive Officer, President and Chairman of the Board, despite him serving as the Issuer’s President and a director since 1982, Chief Executive Officer since 1990, and as Chairman of the Board since 2007. The Issuer’s chronic stock price and operating underperformance under Mr. Heyningen suggests to us that he is running the Issuer without effective Board oversight and appropriate accountability. The Board has aggressively diluted stockholders by approximately 14% over the past five years with little evidence of commensurate reward to the true owners of the Issuer – the stockholders – based on the lack of value creation over the same period compared to the Russell 2000 Index, the Russell 3000 Index and the Russell 2000 Utilities: Telecommunications Index. In contrast, the Reporting Persons believe the addition of their two highly qualified candidates who represent a large stockholder with significant skin in the game, will help to better align the Board with stockholder interests and be the best chance of seeing a return on their investments.

 

  

In addition, the Reporting Persons are concerned that the Board appears to be squandering significant stockholder resources by engaging expensive advisors to help entrench itself as opposed to focusing on maximizing stockholder value. The Issuer has refused to engage in meaningful discussions with the Reporting Persons to avoid a contested election, even though the Nominees have more public company board experience than the current directors. Nevertheless, if elected, the Nominees are committed to working cooperatively with the remaining board members to explore all opportunities to unlock value.

 

The Nominees are:

 

John Mutch is a seasoned operating executive and investor in the technology industry with over 30 years of public and private company operating and investing experience with a long, sustained track record of creating stockholder value and extensive executive management experience. Mr. Mutch serves as managing partner of MV Advisors LLC (“MV Advisors”), a strategic block investment firm that provides focused investment and strategic guidance to small and mid-cap technology companies. Previously, Mr. Mutch served as President, CEO and Chairman of the Board of Directors of BeyondTrust Software, a privately-held security software company. He also served as President and CEO of both Peregrine Systems and HNC Software, an enterprise analytics software provider. Mr. Mutch currently serves as a member of the Board of Directors of Agilysys, Inc., and as the Chairman of the Board of Aviat Networks and previously served as a director of Maxwell Technologies, Inc., YuMe, Inc., Steel Excel Inc., Phoenix Technology, Edgar Online, Aspyra, Inc., Overland Storage, Inc. and Brio Software, Inc.

 

Eric Singer has demonstrated financial expertise and significant experience serving as a director of various technology companies. Mr. Singer serves as the managing member of each of VIEX GP, VSO GP II and VIEX Capital. Currently, Mr. Singer serves on the board of directors of A10 Networks, an application controller and firewall cloud security company, where he has served as Lead Independent Director since September 2020, and Immersion Corporation, a premier licensing company focused on the creation, design, development, and licensing of innovative haptic technologies, where he has served as Executive Chairman since August 2020. Previously, Mr. Singer served as chairman of the board of directors of RhythmOne plc, YuMe, Inc. and Sigma Designs, Inc., and as a director of Quantum Corporation, Support.com, Numerex Corp., TigerLogic Corporation, IEC Electronics, Meru Networks, Inc., PLX Technology, Inc. and Zilog Corporation.

 

Item 5.

Interest in Securities of the Issuer.

 

The aggregate percentage of Shares reported owned by each Reporting Person is based upon 18,429,840 Shares outstanding, which is the total number of Shares outstanding as of February 22, 2021 as reported in the Issuer’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission on March 3, 2021.

 

 

A.

Series One

 

(a)

As of the close of business on April 9, 2021, Series One beneficially owned 700,350 Shares.

 

Percentage: Approximately 3.8%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 700,350 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 700,350

 

(c)

The transactions in the securities of the Issuer by Series One during the past 60 days are set forth in Schedule A and are incorporated herein by reference.

 

B.

VSO II

 

(a)

As of the close of business on April 9, 2021, VSO II beneficially owned 267,658 Shares.

 

Percentage: Approximately 1.5%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 267,658 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 267,658

 

(c)

VSO II has not entered into any transactions in the securities of the Issuer during the past 60 days.

 

C.

VIEX GP

 

(a)

VIEX GP, as the general partner of Series One, may be deemed the beneficial owner of the 700,350 Shares beneficially owned by Series One.

 

Percentage: Approximately 3.8%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 700,350 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 700,350

 

(c)

VIEX GP has not entered into any transactions in the securities of the Issuer during the past 60 days. The transactions in the securities of the Issuer on behalf of Series One during the past 60 days are set forth in Schedule A and are incorporated herein by reference.

 

D.

VSO GP II

 

(a)

VSO GP II, as the general partner of VSO II, may be deemed the beneficial owner of the 267,658 Shares beneficially owned by VSO II.

 

 

Percentage: Approximately 1.5%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 267,658 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 267,658

 

(c)

VSO GP II has not entered into any transactions in the securities of the Issuer during the past 60 days.

 

E.

VIEX Capital

 

(a)

VIEX Capital, as the investment manager to Series One and VSO II, may be deemed the beneficial owner of the (i) 700,350 Shares beneficially owned by Series One and (ii) 267,658 Shares beneficially owned by VSO II.

 

Percentage: Approximately 5.3%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 968,008 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 968,008

 

(c)

VIEX Capital has not entered into any transactions in the securities of the Issuer during the past 60 days. The transactions in the securities of the Issuer on behalf of Series One during the past 60 days are set forth in Schedule A and are incorporated herein by reference.

 

F.

Eric Singer

 

(a)

Mr. Singer, as the managing member of each of VIEX GP, VSO GP II, and VIEX Capital, may be deemed the beneficial owner of the (i) 700,350 Shares beneficially owned by Series One and (ii) 267,658 Shares beneficially owned by VSO II.

 

Percentage: Approximately 5.3%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 968,008 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 968,008

 

(c)

Mr. Singer has not entered into any transactions in the securities of the Issuer during the past 60 days. The transactions in the securities of the Issuer on behalf of Series One during the past 60 days are set forth in Schedule A and are incorporated herein by reference.

 

G.

John Mutch

 

(a)

As of the close of business on April 9, 2021, Mr. Mutch did not beneficially own any Shares.

 

Percentage: 0%

 

(b)

1. Sole power to vote or direct vote: 0 2. Shared power to vote or direct vote: 0 3. Sole power to dispose or direct the disposition: 0 4. Shared power to dispose or direct the disposition: 0

 

 

(c)

Mr. Mutch has not entered into any transactions in securities of the Issuer during the past sixty days.

 

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he or it does not directly own.

 

(d)

No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares.

 

(e)

Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

 

On January 14, 2021, the Reporting Persons entered into a Group Agreement (the “Group Agreement”) pursuant to which, among other things, the parties agreed (a) to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Issuer, if applicable, (b) to solicit proxies for the election of Mr. Mutch and Mr. Singer at the 2021 Annual Meeting of stockholders, and (c) that VIEX would bear all expenses incurred in connection with the Reporting Persons’ activities, including approved expenses incurred by any of the parties in connection with the solicitation, subject to certain limitations. The Group Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

VIEX Capital has entered into a letter agreement (the “Indemnification Agreement”) with Mr. Mutch pursuant to which it has agreed to indemnify him against claims arising from the solicitation of proxies from the Issuer’s stockholders in connection with the 2021 Annual Meeting and any related transactions. The indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

 

Mr. Mutch has granted Eric Singer a power of attorney (the “POA”) to execute certain SEC filings and other documents in connection with the solicitation of proxies from the Issuer’s stockholders in connection with the 2021 Annual Meeting. The POA is attached hereto as Exhibit 99.3 and is incorporated herein by reference.

 

Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

 

Item 7.

Material to be Filed as Exhibits.

 

	99.1	Group Agreement by and among VIEX Opportunities Fund, LP – Series One, VIEX Special Opportunities Fund II, LP, VIEX GP, LLC, VIEX Special Opportunities GP II, LLC, VIEX Capital Advisors, LLC, Eric Singer and John Mutch, dated January 14, 2021.
	99.2	Indemnification Agreement, dated January 14, 2021.
	99.3	Power of Attorney, dated January 14, 2021.

 

 

SIGNATURES

 

After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: April 12, 2021

 

	VIEX Opportunities Fund, LP – Series One
	By:	VIEX GP, LLC General Partner
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX GP, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Special Opportunities Fund II, LP
	By:	VIEX Special Opportunities GP II, LLC General Partner
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Special Opportunities GP II, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Capital Advisors, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	/s/ Eric Singer
	Eric Singer Individually and as attorney-in-fact for John Mutch

 

 

  

SCHEDULE A

 

Transactions in the Securities of the Issuer During the Past Sixty Days

 

Nature of the Transaction

Securities  Purchased/(Sold)

Price Per Security($)

Date of  Purchase / Sale

 

VIEX opportunities fund, LP – Series one

 

Sale of Common Stock	(14,959)	14.8704	02/08/2021
Purchase of Common Stock	17,183	13.6853	02/25/2021
Purchase of Common Stock	30,506	13.7433	02/26/2021
Purchase of Common Stock	65,727	13.5779	03/04/2021
Purchase of Common Stock	6,652	12.7351	03/16/2021
Purchase of Common Stock	5,731	12.5667	03/17/2021
Purchase of Common Stock	10,000	12.7400	03/19/2021
Purchase of Common Stock	43,580	12.8000	03/22/2021
Purchase of Common Stock	25,342	12.2673	03/23/2021
Purchase of Common Stock	15,000	12.2616	03/24/2021
Purchase of Common Stock	13,911	12.2917	03/25/2021
Purchase of Common Stock	2,918	12.3474	03/26/2021
Purchase of Common Stock	8,580	12.5644	03/26/2021
Purchase of Common Stock	5,471	12.5270	03/29/2021
Purchase of Common Stock	21,300	12.5422	03/29/2021
Purchase of Common Stock	15,267	12.4973	03/30/2021
Purchase of Common Stock	4,458	12.4622	03/31/2021
Purchase of Common Stock	13,403	12.6705	03/31/2021
Purchase of Common Stock	6,045	12.6401	04/01/2021
Purchase of Common Stock	35,701	13.1821	04/05/2021
Purchase of Common Stock	22,488	13.2962	04/06/2021
Purchase of Common Stock	7,232	13.3095	04/07/2021
Purchase of Common Stock	20,000	13.2282	04/07/2021
Purchase of Common Stock	5,938	13.2885	04/08/2021

 

 

 

GROUP AGREEMENT

 

WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of KVH Industries, Inc., a Delaware corporation (the “Company”);

 

WHEREAS, VIEX Capital Advisors, LLC, a Delaware limited liability company (“VIEX Capital”), VIEX Opportunities Fund, LP – Series One, a series of VIEX Opportunities Fund, LP, a Delaware series limited partnership (“Series One”), VIEX Special Opportunities Fund II, LP, a Delaware limited partnership (“VSO II”), VIEX GP, LLC, a Delaware limited liability company (“VIEX GP”), VIEX Special Opportunities GP II, LLC, a Delaware limited liability company, (“VSO GP II”), Eric Singer (collectively, “VIEX”) and John Mutch (together with VIEX, the “Group”) wish to form a group for the purpose of seeking representation on the Board of Directors of the Company (the “Board”) at the 2021 annual meeting of stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.

 

NOW, IT IS AGREED, this 14^th day of January 2021 by the parties hereto:

 

1.       In the event that the Group becomes obligated to file a statement on Schedule 13D while this agreement (the “Agreement”) is in effect, in accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Group agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company. Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.

 

2.       So long as this Agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company; or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership. Notice shall be given no later than 24 hours after each such transaction.

 

3.       Each of the undersigned agrees to form the Group for the purpose of (i) soliciting proxies or written consents for the election of the persons nominated by the Group to the Board at the Annual Meeting, (ii) taking such other actions as the parties deem advisable, and (iii) taking all other action necessary or advisable to achieve the foregoing.

 

4.       VIEX shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agrees to pay directly all such pre-approved expenses.

 

5.       Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 3 shall be first approved by a representative of VIEX.

 

 

6.       The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.

 

7.       This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.

 

8.       This Agreement is governed by and will be construed in accordance with the laws of the State of New York. Any legal action or proceeding arising out of the provisions of this Agreement or the parties’ investment in the Company shall be brought and determined in the United States District Court for the Southern District of New York located in the Borough of Manhattan or the courts of the State of New York located in the County of New York.

 

9.       The parties’ rights and obligations under this Agreement (other than the rights and obligations set forth in Section 4 and Section 8 which shall survive any termination of this Agreement) shall terminate immediately after the conclusion of the activities set forth in Section 3 or as otherwise agreed to by the parties. Notwithstanding the foregoing, at any time prior to the filing by the Group of an initial Schedule 13D, any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by email to Elizabeth Gonzalez-Sussman at Olshan at [email protected].

 

10.       Each party acknowledges that Olshan shall act as counsel for both the Group and VIEX relating to their investment in the Company.

 

11.       The terms and provisions of this Agreement may not be modified, waived or amended without the written consent of each of the parties hereto.

 

12.       Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to any Schedule 13D that may in the future be required to be filed under applicable law.

 

[Signature pages on next page]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written.

 

	VIEX Opportunities Fund, LP – Series One
	By:	VIEX GP, LLC, its general partner
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX GP, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Special Opportunities Fund II, LP
	By:	VIEX Special Opportunities GP II, LLC, its general partner
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Special Opportunities GP II, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	VIEX Capital Advisors, LLC
	By:	/s/ Eric Singer
		Name:	Eric Singer
		Title:	Managing Member

 

	/s/ Eric Singer
	Eric Singer

 

	/s/ John Mutch
	John Mutch

 

 

VIEX Capital Advisors, LLC
323 Sunny Isles Blvd, Suite 700
Sunny Isles Beach, Florida 33160

 

January 14, 2021

 

John Mutch

c/o MV Advisors LLC

PO BOX 666

Rancho Santa Fe, California 92067

 

Re:

KVH Industries, Inc.

 

Dear Mr. Mutch:

 

Thank you for agreeing to serve as a nominee for election to the Board of Directors of KVH Industries, Inc., a Delaware corporation (the “Company”), in connection with the proxy solicitation that VIEX Capital Advisors, LLC (“VIEX Capital”) and certain of its affiliates are considering undertaking to nominate and elect directors at the Company’s 2021 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Solicitation”). Your outstanding qualifications, we believe, will prove a valuable asset to the Company and all of its stockholders. This letter will set forth the terms of our agreement.

 

VIEX Capital agrees to indemnify and hold you harmless against any and all claims of any nature arising from the Solicitation and any related transactions, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims arising from your gross negligence, willful misconduct, intentional and material violations of law, criminal actions, provision to VIEX Capital of false or misleading information (including false or misleading information on any questionnaire you are requested to complete by VIEX Capital), or material breach of the terms of this letter agreement; provided further, that except for acts in connection with the Solicitation and any related transactions which occurred prior to your being elected a director of the Company, the indemnification and other obligations hereunder shall terminate upon your becoming a director of the Company. This indemnification will include any and all losses, liabilities, damages, demands, claims, suits, actions, judgments, or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing for or defending against any litigation, commenced or threatened, any civil, criminal, administrative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation asserted against, resulting, imposed upon, or incurred or suffered by you, directly or indirectly, as a result of or arising from the Solicitation and any related transactions (each, a “Loss”).

 

 

In the event of a claim against you pursuant to the prior paragraph or the occurrence of a Loss, you shall give VIEX Capital prompt written notice of such claim or Loss (provided that failure to promptly notify VIEX Capital shall not relieve VIEX Capital from any liability which it may have on account of this letter agreement, except to the extent VIEX Capital shall have been materially prejudiced by such failure). Upon receipt of such written notice, VIEX Capital will provide you with counsel to represent you. Such counsel shall be reasonably acceptable to you. In addition, you will be reimbursed promptly for all Losses suffered by you and as incurred as provided herein.

 

VIEX Capital may not enter into any settlement of any Loss or claim without your consent unless such settlement includes a release of you from any and all liability in respect of such Loss or claim and does not require you to admit to any violation of any law, order or regulation. Notwithstanding anything to the contrary set forth in this letter agreement, VIEX Capital shall not be responsible for any fees, costs or expenses of separate legal counsel retained by you without VIEX Capital’s prior written approval. In addition, you agree not to enter into any settlement of any Loss or claim without the written consent of VIEX Capital, which consent will not be unreasonably withheld.

 

You hereby agree to keep confidential and not disclose to any party, without the consent of VIEX Capital, any confidential, proprietary or non-public information (collectively, “Information”) of VIEX Capital, its affiliates or any other party to that certain Group Agreement with respect to the Solicitation which you have heretofore obtained or may obtain in connection with your service as a nominee hereunder. Notwithstanding the foregoing, Information shall not include any information that is publicly disclosed by VIEX Capital, its affiliates or any other party to that certain Group Agreement with respect to the Solicitation or any information that you can demonstrate is now, or hereafter becomes, through no act or failure to act on your part, otherwise generally known to the public.

 

Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information you may do so provided that you first promptly notify VIEX Capital so that VIEX Capital may seek a protective order or other appropriate remedy or, in VIEX Capital’s sole discretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained or VIEX Capital does not waive compliance with the terms of this letter agreement, you may consult with counsel at the cost of VIEX Capital and you may furnish only that portion of the Information which you are advised by counsel is legally required to be so disclosed and you will request that the party(ies) receiving such Information maintain it as confidential.

 

All Information, all copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information, shall be and remain the property of VIEX Capital and, upon request of a representative of VIEX Capital, all such information shall be returned or, at VIEX Capital’s option, destroyed by you, with such destruction confirmed by you to VIEX Capital in writing.

 

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.

 

[Signature Page to Follow]

 

 

This letter agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument.

 

	Very truly yours,
	VIEX Capital Advisors, LLC
	By:	/s/ Eric Singer
	Name:	Eric Singer
	Title:	Managing Member

 

ACCEPTED AND AGREED:

/s/ John Mutch

John Mutch

 

 

 

POWER OF ATTORNEY

 

Know all by these presents, that the undersigned hereby constitutes and appoints Eric Singer the undersigned’s true and lawful attorney-in-fact to take any and all action in connection with (i) the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of KVH Industries, Inc., a Delaware corporation (the “Company”), directly or indirectly beneficially owned by VIEX Capital Advisors, LLC or any of its affiliates (collectively, the “Group”), and (ii) any proxy solicitation of the Group to elect the Group’s slate of director nominees to the board of directors of the Company at the 2021 annual meeting of stockholders of the Company (the “Solicitation”). Such action shall include, but not be limited to:

 

1.                  if applicable, executing for and on behalf of the undersigned any Schedule 13D, and amendments thereto, filed by the Group that are required to be filed under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;

 

2.                  if applicable, executing for and on behalf of the undersigned all Forms 3, 4 and 5 required to be filed under Section 16(a) of the Exchange Act in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;

 

3.                  executing for and on behalf of the undersigned all Group Agreements or similar documents pursuant to which the undersigned shall agree to be a member of the Group;

 

4.                  performing any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any such document, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and

 

5.                  taking any other action of any type whatsoever in connection with the Solicitation, including entering into any settlement agreement, that in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact’s discretion.

 

The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted. The undersigned acknowledges that the foregoing attorney-in-fact, in serving in such capacity at the request of the undersigned, is not assuming any of the undersigned's responsibilities to comply with Section 13(d), Section 16 or Section 14 of the Exchange Act.

 

This Power of Attorney shall remain in full force and effect until the undersigned is no longer a member of the Group unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorney-in-fact.

 

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 14^th day of January 2021.

 

	/s/ John mutch
	John mutch

  

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