As
filed with the Securities and Exchange Commission on March 19, 2010
Registration
No. 333-________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
GLOBALSTAR,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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41-2116508
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(State
or Other Jurisdiction of
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(IRS
Employer Identification No.)
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Incorporation
or Organization)
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461
South Milpitas Blvd.
Milpitas,
California 95035
(408)
933-4000
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Fuad
Ahmad
Senior
Vice President and Chief Financial Officer
Globalstar,
Inc.
461
South Milpitas Blvd.
Milpitas,
California 95035
(408)
933-4000
(Name
and address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
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Gerald
S. Greenberg, Esq.
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Taft
Stettinius & Hollister LLP
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425
Walnut Street, Suite 1800
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Cincinnati,
Ohio 45202
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Tel:
(513) 357-9670
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Approximate date of commencement of
proposed sale to the public: From time to time after the
effective date of this Registration Statement.
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 this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated file, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accerlerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ¨
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Accelerated
Filer x
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Non-accelerated
filer ¨ (Do
not check if a smaller reporting company)
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Aggregate Offering
Price Per Unit (2)
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Proposed Maximum
Aggregate Offering
Price (2)
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Amount of
Registration Fee
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Voting
Common Stock, par value $0.0001 per share
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13,000,000 | $ | 1.31 | $ | 17,030,000 | $ | 1,214.24 | |||||||||
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such indeterminable number of
additional shares of common stock as may become issuable as a result of
any stock split, stock dividend or similar
transactions.
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(2)
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Estimated
solely for purposes of calculating the registration fee pursuant to Rule
457(c) and based on the average of the high and low prices of the common
stock as reported on The NASDAQ Stock Market on March 18,
2010.
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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 that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act, or until the Registration Statement will become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject
to Completion, dated March 19, 2010
13,000,000
Shares of Voting Common Stock
PROSPECTUS
This
prospectus relates to 13,000,000 shares of our voting common stock, par value
$0.0001 per share (“common stock”) that may be offered for resale for the
account of the selling stockholders identified under the caption “Selling
Stockholders” on page 7 (the “shares”). The shares have been or will
be issued to the selling stockholders in connection with our acquisition on
December 18, 2009 of certain assets and the assumption of certain liabilities of
NOXA Holdings LLC, a Louisiana limited liability company formerly known as Axonn
L.L.C., (“NOXA”). The selling stockholders may sell these shares in a
variety of transactions as described under the heading “Plan of Distribution”
beginning on page 9.
The
shares covered by this prospectus include 6,298,058 currently outstanding shares
of our common stock owned by the selling shareholders and up to an additional
6,701,942 shares of our common stock that may be issued in satisfaction of
contingent earn-out obligations set forth in the definitive agreement (“purchase
agreement”) pursuant to which we purchased certain assets and assumed certain
liabilities of NOXA (the “acquisition”).
We will
not receive any proceeds from the sale of the shares by the selling
stockholders.
The
selling stockholders, or their pledgees, donees, transferees or other
successors-in-interest, may offer the shares from time to time through public or
private transactions at prevailing market prices, at prices related to
prevailing market prices or at privately negotiated prices.
Our
common stock is traded on The NASDAQ Stock Market under the symbol
“GSAT.” On March 17, 2010, the closing sale price of our common stock
on The NASDAQ Stock Market was $1.32 per share. You are urged to obtain current
market quotations for our common stock.
Investing
in our common stock involves risks. You should consider carefully the
risks described in the “Risk Factors” section beginning on page 2 and under
“Risk Factors” in Item 1A of our Annual Report on Form 10-K for the fiscal year
ended December 31, 2009 and Item 1A of subsequently filed Quarterly Reports on
Form 10-Q (which documents are incorporated by reference herein), as well as the
other information contained or incorporated by reference in this prospectus
before making a decision to invest in our common stock. See “Where
You Can Find More Information.”
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of the securities to be issued under this prospectus or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date
of this prospectus
is ,
2010.
TABLE OF
CONTENTS
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THE
COMPANY
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1
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RISK
FACTORS
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2
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FORWARD-LOOKING
STATEMENTS
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7
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USE
OF PROCEEDS
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7
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SELLING
STOCKHOLDERS
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7
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PLAN
OF DISTRIBUTION
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9
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LEGAL
MATTERS
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11
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EXPERTS
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11
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WHERE
YOU CAN FIND MORE INFORMATION
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11
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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11
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ABOUT
THIS PROSPECTUS
You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized anyone to
provide you with different information. We are not making offers to sell or
soliciting offers to buy the securities in any jurisdiction in which an offer or
solicitation is not authorized or in which the person making that offer or
solicitation is not qualified to do so or to anyone whom it is unlawful to make
an offer or solicitation.
You
should not assume that the information contained in this prospectus or any
prospectus supplement, as well as the information we previously filed with the
Securities and Exchange Commission that is incorporated by reference herein, is
accurate as of any date other than its respective date.
Unless
the context requires otherwise, references to “we,” “us,” “our,” “Globalstar”
and the “company” refer to Globalstar, Inc.
THE
COMPANY
We are a
leading provider of mobile voice and data communication services via satellite.
Our communications platform extends telecommunications beyond the boundaries of
terrestrial wireline and wireless telecommunications networks to serve our
customers’ desire for connectivity. Using in-orbit satellites and ground
stations, which we call gateways, we offer voice and data communications
services to government agencies, businesses and other customers in over 120
countries.
Our
executive offices are located at 461 South Milpitas Boulevard, Milpitas,
California 95035, and our telephone number is (408) 933-4000.
THE
ACQUISITION
In
December 2009, we acquired certain assets and assumed certain liabilities of
NOXA, a provider of one way data Simplex products (e.g. Axtracker, MMT and
SMARTONE), in exchange for $1.5 million in cash (subject to a working capital
adjustment in accordance with the terms of the purchase agreement), and $5.5
million in shares of our common stock. Of these amounts, $500,000 in
cash is held in an escrow account to cover expenses related to the voluntary
replacement of first production models of our second-generation SPOT satellite
GPS messenger devices and warranty obligations related to other products.
Additionally, 3,149,029 shares of stock are held in escrow to satisfy certain
post-closing indemnification obligations of NOXA which may arise for a period of
one-year following the closing of transaction. In addition to the consideration
paid to NOXA upon closing of the acquisition, we are also obligated to pay NOXA
over a five-year earnout period the equivalent value of up to an additional
approximately $10.8 million based on sales of existing and new products. Subject
to certain stated exceptions reflected in the purchase agreement, we are
obligated to satisfy these earnout payments principally in shares of common
stock (not to exceed 10% of our pre-transaction outstanding common stock), and
have the option to satisfy any remaining earnout payments in cash or, in our
discretion, in additional shares of common stock after an aggregate of 13
million shares have been issued. We also agreed to maintain the
continuous effectiveness of any registration statement covering the shares until
the earlier of: (1) one year after the expiration of the earnout period; (2) one
year after such time as the maximum amount of earnout payments have been made
under the purchase agreement; or (3) such time as all of the shares have been
sold by the holders or all restrictive legends shall have been removed from the
certificates representing the shares.
1
RISK
FACTORS
Investing
in our common stock involves a high degree of risk. You should consider
carefully the risk factors described below together with the other information
contained or incorporated by reference in this prospectus before you decide to
buy our common stock. Any of these risks could materially adversely affect our
business, financial condition or results of operations or the value of your
investment. Additional risks and uncertainties not currently known to
us or that we currently deem to be immaterial may also materially adversely
affect our business, financial condition or results of operations.
Risks
related to our business can be found in Item 1A of our Annual Report on Form
10-K for the fiscal year ended December 31, 2009 and Item 1A of
subsequently filed Quarterly Reports on Form 10-Q, which documents are
incorporated by reference herein.
Risks
Related to Our Common Stock
Failure
to satisfy NASDAQ Global Select Market listing requirements may result in our
common stock being removed from listing on the NASDAQ Global Select
Market.
Our
voting common stock is currently listed on the NASDAQ Global Select Market under
the symbol “GSAT.” For continued inclusion on the NASDAQ Global Select Market,
we must generally maintain, among other requirements, either (a) shareholders’
equity of at least $10 million, a minimum closing bid price of $1.00 per share
and a market value of our public float of at least $5 million; or (b) market
capitalization of at least $50 million, a minimum closing bid price of $1.00 per
share and a market value of our public float of at least $15 million. If we fail
to meet the minimum closing bid price or the minimum market value standards
described above for at least 30 consecutive trading days, our common stock could
be at risk of being removed from listing on the NASDAQ Global Select Market. On
September 29, 2009, NASDAQ informed us that our common stock was not in
compliance with the minimum bid requirement and that we had a grace period of
180 days, or until March 29, 2010, to regain compliance. We regained compliance
with NASDAQ’s Listing Rule 5450(a)(1) as of January 21, 2010; however, the stock
price again fell below $1.00 on various dates and we may be subject to another
notice from NASDAQ if we do not comply in the future. If our common stock were
removed from listing on the NASDAQ Global Select Market, our common stock may be
transferred to the NASDAQ Capital Market if we satisfy the listing criteria for
the NASDAQ Capital Market, or trading of our common stock may be conducted in
the over-the-counter market in the so-called “pink sheets” or, if available, the
National Association of Securities Dealer’s “Electronic Bulletin Board.”
Consequently, broker-dealers may be less willing or able to sell and/or make a
market in our common stock, which may make it more difficult for stockholders to
dispose of, or to obtain accurate quotations for the price of, our common stock.
Removal of our common stock from listing on the NASDAQ Global Select Market may
also make it more difficult for us to raise capital through the sale of our
securities.
If our
common stock is not listed on a U.S. national stock exchange, such as NASDAQ, or
approved for quotation and trading on a national automated dealer quotation
system or established automated over-the-counter trading market, holders of our
5.75% Senior Convertible Notes and 8% Senior Unsecured Convertible Notes will
have the option to require us to repurchase the notes, which we may not have
sufficient financial resources to do. In addition, if our common stock is not
listed on a U.S. national stock exchange, we will be obligated to make any
earn-out payments for the Axonn acquisition in cash rather than common
stock.
We
do not expect to pay dividends on our voting common stock in the foreseeable
future.
We do not
expect to pay cash dividends on our common stock. The $586.3 million senior
secured facility agreement we entered into with a syndicate of bank lenders on
June 5, 2009 (the Facility Agreement) currently prohibits the payment of cash
dividends. Any future dividend payments are within the discretion of our board
of directors and will depend on, among other things, our results of operations,
working capital requirements, capital expenditure requirements, financial
condition, contractual restrictions, business opportunities, anticipated cash
needs, provisions of applicable law and other factors that our board of
directors may deem relevant. We may not generate sufficient cash from operations
in the future to pay dividends on our common stock.
2
The
market price of our common stock is volatile and there is a limited market for
our shares.
The
trading price of our common stock is subject to wide fluctuations. Factors
affecting the trading price of our common stock may include:
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actual
or anticipated variations in our operating
results;
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further
failure in the performance of our current or future satellites or a delay
in the launch of our second-generation
satellites;
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changes
in financial estimates by research analysts, or any failure by us to meet
or exceed any such estimates, or changes in the recommendations of any
research analysts that elect to follow our common stock or the common
stock of our competitors;
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actual
or anticipated changes in economic, political or market conditions, such
as recessions or international currency
fluctuations;
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actual
or anticipated changes in the regulatory environment affecting our
industry;
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actual
or anticipated sales of common stock by our controlling stockholder or
others;
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changes
in the market valuations of our industry peers;
and
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announcements
by us or our competitors of significant acquisitions, strategic
partnerships, divestitures, joint ventures or other strategic
initiatives.
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The
trading price of our common stock might also decline in reaction to events that
affect other companies in our industry even if these events do not directly
affect us. Our stockholders may be unable to resell their shares of our common
stock at or above the initial purchase price. Additionally, because we are a
controlled company there is a limited market for our common stock and we cannot
assure our stockholders that a trading market will develop further or be
maintained.
Trading
volume for our common stock historically has been low. Sales of significant
amounts of shares of our common stock in the public market could lower the
market price of our stock.
The future issuance of additional
shares of our common stock could cause dilution of ownership interests and
adversely affect our stock price.
We may in
the future issue our previously authorized and unissued securities, resulting in
the dilution of the ownership interests of our current stockholders. Following
our Annual Meeting on September 23, 2009, we are authorized to issue 1.0 billion
shares of common stock (135 million of which are designated as nonvoting), of
which approximately 274.4 million shares of voting common stock and 16.8 million
shares of nonvoting common stock were issued and outstanding as of December 31,
2009 and 708.8 million were available for future issuance. The potential
issuance of such additional shares of common stock, whether directly or pursuant
to any conversion right of any convertible securities, may create downward
pressure on the trading price of our common stock. We may also issue additional
shares of our common stock or other securities that are convertible into or
exercisable for common stock for capital raising or other business purposes.
Future sales of substantial amounts of common stock, or the perception that
sales could occur, could have a material adverse effect on the price of our
common stock.
We have issued and may issue shares of
preferred stock or debt securities with greater rights than our common
stock.
Subject
to the rules of The NASDAQ Stock Market, our certificate of incorporation
authorizes our board of directors to issue one or more series of preferred stock
and set the terms of the preferred stock without seeking any further approval
from holders of our common stock. Currently, there are 100 million shares of
preferred stock authorized; one share of Series A Convertible Preferred Stock
was issued and subsequently converted to shares of voting and nonvoting common
stock during 2009. Any preferred stock that is issued may rank ahead of our
common stock in terms of dividends, priority and liquidation premiums and may
have greater voting rights than our common stock.
3
If persons engage in short sales of
our common stock, the price of our common stock may decline.
Selling short is a technique used by
a stockholder to take advantage of an anticipated decline in the price of a
security. A significant number of short sales or a large volume of other sales
within a relatively short period of time can create downward pressure on the
market price of a security. Further sales of common stock could cause even
greater declines in the price of our common stock due to the number of
additional shares available in the market, which could encourage short sales
that could further undermine the value of our common stock. Holders of our
securities could, therefore, experience a decline in the value of their
investment as a result of short sales of our common stock.
Provisions
in our charter documents and credit agreement and provisions of Delaware law may
discourage takeovers, which could affect the rights of holders of our common
stock.
Provisions
of Delaware law and our amended and restated certificate of incorporation,
amended and restated bylaws and our Facility Agreement and indenture for our
senior notes could hamper a third party’s acquisition of us or discourage a
third party from attempting to acquire control of us. These provisions
include:
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the
absence of cumulative voting in the election of our directors, which means
that the holders of a majority of our common stock may elect all of the
directors standing for election;
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the
ability of our board of directors to issue preferred stock with voting
rights or with rights senior to those of the common stock without any
further vote or action by the holders of our common
stock;
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the
division of our board of directors into three separate classes serving
staggered three-year terms;
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the
ability of our stockholders, at such time when Thermo Capital Partners,
LLC or its affiliates (“Thermo”) does not own a majority of our
outstanding capital stock entitled to vote in the election of directors,
to remove our directors only for cause and only by the vote of at least
66 2/3% of the outstanding shares of capital stock entitled to vote
in the election of directors;
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prohibitions,
at such time when Thermo does not own a majority of our outstanding
capital stock entitled to vote in the election of directors, on our
stockholders acting by written
consent;
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prohibitions
on our stockholders calling special meetings of stockholders or filling
vacancies on our board of
directors;
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the
requirement, at such time when Thermo does not own a majority of our
outstanding capital stock entitled to vote in the election of directors,
that our stockholders must obtain a super-majority vote to amend or repeal
our amended and restated certificate of incorporation or
bylaws;
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change
of control provisions in our Facility Agreement, which provide that a
change of control will constitute an event of default and, unless waived
by the lenders, will result in the acceleration of the maturity of all
indebtedness under the credit
agreement;
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change
of control provisions relating to our 5.75% Notes and 8% Notes, which
provide that a change of control will permit holders of the Notes to
demand immediate repayment; and
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change
of control provisions in our 2006 Equity Incentive Plan, which provide
that a change of control may accelerate the vesting of all outstanding
stock options, stock appreciation rights and restricted
stock.
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We also
are subject to Section 203 of the Delaware General Corporation Law, which,
subject to certain exceptions, prohibits us from engaging in any business
combination with any interested stockholder, as defined in that section, for a
period of three years following the date on which that stockholder became an
interested stockholder. This provision does not apply to Thermo, which became
our principal stockholder prior to our initial public offering.
These provisions also could make it
more difficult for our stockholders to elect directors and take other corporate
actions, and could limit the price that investors might be willing to pay in the
future for shares of our common stock.
4
We are controlled by Thermo, whose
interests may conflict with yours.
As of December 31, 2009, Thermo owned
approximately 69.6% of our outstanding equity and 67.7% of our voting power.
Additionally, Thermo owns warrants and 8.00% Notes that may be converted into or
exercised for additional shares of common stock. Thermo is able to control the
election of all of the members of our board of directors and the vote on
substantially all other matters, including significant corporate transactions
such as the approval of a merger or other transaction involving our
sale.
We have depended substantially on
Thermo to provide capital to finance our business. In 2006 and 2007, Thermo
purchased an aggregate of $200 million of common stock at prices substantially
above market. On December 17, 2007, Thermo assumed all of the obligations and
was assigned all of the rights (other than indemnification rights) of the
administrative agent and the lenders under our amended and restated credit
agreement. To fulfill the conditions precedent to our Facility Agreement, in
2009, Thermo converted the loans outstanding under the credit agreement into
equity and terminated the credit agreement. In addition, Thermo and its
affiliates deposited $60.0 million in a contingent equity account to fulfill a
condition precedent for borrowing under the Facility Agreement, purchased $11.4
million of our 8% Notes, and loaned us $25.0 million to fund our debt service
reserve account under the Facility Agreement.
Thermo is controlled by James Monroe
III, our chairman. Through Thermo, Mr. Monroe holds equity interests in, and
serves as an executive officer or director of, a diverse group of
privately-owned businesses not otherwise related to us. Although Mr. Monroe
receives no compensation from us, he has advised us that he intends to devote
whatever portion of his time is necessary to perform his duties as our chairman.
We do reimburse Thermo and Mr. Monroe for certain expenses they incur in
connection with our business.
The interests of Thermo may conflict
with the interests of our other stockholders. Thermo may take actions it
believes will benefit its equity investment in us or loans to us even though
such actions might not be in your best interests as a holder of our common
stock.
As a “controlled company,” as defined
in the NASDAQ Marketplace Rules, we qualify for, and rely on, exemptions from
certain corporate governance requirements.
Thermo owns common stock representing
more than a majority of the voting power in election of our directors. As a
result, we are considered a “controlled company” within the meaning of the
corporate governance standards in the NASDAQ Listing Rules. Under these rules, a
“controlled company” may elect not to comply with certain corporate governance
requirements, including the requirement that a majority of its board of
directors consist of independent directors and the requirement that it have a
compensation committee and a nominating/corporate governance committee that are
composed entirely of independent directors. We have elected to be treated as a
controlled company and thus utilize these exemptions. As a result, we do not
have a majority of independent directors nor do we have compensation and
nominating/corporate governance committees consisting entirely of independent
directors. Accordingly, you do not have the same protection afforded to
stockholders of companies that are subject to all of the NASDAQ corporate
governance requirements.
Our pre-emptive rights offering,
which we may commence in the future, is not in strict compliance with the
technical requirements of our prior certificate of incorporation.
Our certificate of incorporation as
in effect when we entered into the irrevocable standby stock purchase agreement
with Thermo in 2006 provided that stockholders who are accredited investors (as
defined under the Securities Act of 1933) were entitled to pre-emptive rights
with respect to the transaction with Thermo. We may offer our stockholders as of
June 15, 2006 who are accredited investors the opportunity to participate in the
transaction contemplated by the irrevocable standby stock purchase agreement
with Thermo on a pro rata basis on substantially the same terms as Thermo. Some
of our stockholders could allege that the offering does not comply fully with
the terms of our prior certificate of incorporation. Although we believe any
variance from the requirements of our former certificate of incorporation is
immaterial and that we had valid reasons for delaying the pre-emptive rights
offering until after our initial public offering, a court may not agree with our
position if these stockholders allege that we have violated their pre-emptive
rights. In that case, we cannot predict the type of remedy the court could award
such stockholders.
5
The
pre-emptive rights offering, which we are required to make to our existing
stockholders, will be done on a registered basis, and may negatively affect the
trading price of our stock.
Any
pre-emptive rights offering will be made pursuant to a registration statement
filed with, and potentially reviewed by, the SEC. After giving effect to waivers
that we have already received, up to 785,328 shares of our common stock may be
purchased if the pre-emptive rights offering is fully subscribed. Such shares
may be purchased at approximately $16.17 per share, regardless of the trading
price of our common stock. The nature of the pre-emptive rights offering may
negatively affect the trading price of our common stock.
6
FORWARD-LOOKING
STATEMENTS
Certain
statements contained in this prospectus, other than purely historical
information, including, but not limited to, estimates, projections, statements
relating to our business plans, objectives and expected operating results, and
the assumptions upon which those statements are based, are forward-looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. These forward-looking statements generally are identified by the words
“believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,”
“plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will
likely result,” and similar expressions, although not all forward-looking
statements contain these identifying words. These forward- looking statements
are based on current expectations and assumptions that are subject to risks and
uncertainties which may cause actual results to differ materially from the
forward-looking statements. Forward-looking statements, such as the statements
regarding our ability to develop and expand our business, our anticipated
capital spending (including for future satellite procurements and launches), our
ability to manage costs, our ability to exploit and respond to technological
innovation, the effects of laws and regulations (including tax laws and
regulations) and legal and regulatory changes, the opportunities for strategic
business combinations and the effects of consolidation in our industry on us and
our competitors, our anticipated future revenues, our anticipated financial
resources, our expectations about the future operational performance of our
satellites (including their projected operational lives), the expected strength
of and growth prospects for our existing customers and the markets that we
serve, commercial acceptance of our new Simplex products, including our SPOT
satellite GPS messenger TM
products, problems relating to the ground-based facilities operated by us or by
independent gateway operators, worldwide economic, geopolitical and business
conditions and risks associated with doing business on a global basis and other
statements contained in this prospectus regarding matters that are not
historical facts, involve predictions. Risks and uncertainties that could cause
or contribute to such differences include, without limitation, those listed in
“Risk Factors” or incorporated by reference in this prospectus. We do not
intend, and undertake no obligation, to update any of our forward-looking
statements after the date of this prospectus to reflect actual results or future
events or circumstances.
USE
OF PROCEEDS
We will
not receive any proceeds from the sale of the shares by the selling
stockholders.
SELLING STOCKHOLDERS
In
connection with our acquisition of certain assets and our assumption of certain
liabilities of NOXA, the selling stockholders acquired 6,298,058 shares of our
common stock and may be issued up to an additional 6,701,942 shares of our
common stock in earnout payments based on the sales performance of certain of
our products during the five-year period following the closing of our
acquisition of certain assets of NOXA, all of which is being offered by this
prospectus. See “The Acquisition.” The following table
sets forth, to our knowledge, certain information about the selling stockholders
and their ownership of the shares as of March 18, 2010.
Because
the selling stockholders may sell all, some or none of the shares of common
stock they hold, and because the offering contemplated by this prospectus is not
currently being underwritten, no estimate can be given as to the number of
shares of common stock that will be held by the selling stockholders upon
termination of the offering. The information set forth in the
following table regarding the beneficial ownership after the offering is based
upon the hypothetical assumption that the selling stockholders will sell all of
the shares of voting common stock owned by them and covered by this
prospectus.
Beneficial
ownership is determined in accordance with the rules of the SEC, and includes
voting or investment power with respect to shares. Unless otherwise
indicated below, to our knowledge, all persons named in the table have sole
voting and investment power with respect to their shares of common
stock. The inclusion of any shares in this table does not constitute
an admission of beneficial ownership for the persons named below. As
of March 17, 2010, there were 278,916,911 shares of our voting common stock
outstanding.
7
|
Name of Selling
Stockholder
|
Shares of Common Stock
Beneficially Owned Prior to
Offering(3)
|
Number of
Shares
of Common
Stock
Being Offered(3)
|
Shares of Common Stock to be
Beneficially Owned After
Offering
|
|||||||||||||||||
|
Number
|
Percentage
|
Number
|
Percentage
|
|||||||||||||||||
|
NOXA
Holdings LLC(1)(2)
|
5,428,680 | (4) | 2.0 | % | 5,428,680 | 0 | * | |||||||||||||
|
Industrial
Technology Ventures, L.P.(2)
|
774,953 | * | 774,953 | 0 | * | |||||||||||||||
|
Koerner
Capital, L.L.C.(2)
|
94,425 | * | 94,425 | 0 | * | |||||||||||||||
(1) Based
on current circumstances, NOXA intends to distribute any common stock currently
held or received pursuant to the earnout to its members subject to the terms,
conditions and limitations specified in its operating agreement. At
March 18, 2010, the names of the members who may be entitled to receive these
shares (and each of whom will be a selling stockholder) are: Industrial Technology
Ventures, LP, Sanconix, Inc., CTTV Investments, LLC, Koerner Capital, L.L.C.,
Cordova Intellimedia Ventures, LP, Louisiana Economic Development Corporation,
Gary P. Arnold, Thomas B. Hoyt, John J. Driscoll and Robert E.
Dupuis.
(2) Pursuant
to contractual obligations, no shares of common stock issued pursuant to the
purchase agreement can be sold until December 18, 2010. In addition,
certain members of NOXA, including Industrial Technology Ventures, L.P. and
Koerner Capital, L.L.C., who receive the shares will be subject to sales volume
limits until the earlier of each person’s respective holdings are under 1% of
the outstanding stock or December 18, 2012.
(3) The
share figures in this column do not include shares that may be issued in the
future under the earnout obligations. See “The Acquisition.” After
issuance, all shares which may hereafter be issued under the purchase agreement
to NOXA or its successors in interest identified in footnote 1 above, up to
13,000,000 shares in total, may be offered for sale by the selling stockholders
under this prospectus.
(4) Includes
3,149,029 shares that are being held in escrow against potential claims in
connection with our acquisition of certain assets and the assumption of certain
liabilities of NOXA. Some or all of the shares held in escrow may be
returned to us in the event that we incur such potential costs prior to December
18, 2010.
No
selling stockholder has held any position or office with, or has otherwise had a
material relationship with, us or any of our predecessors or affiliates within
the past three years other than, with respect to NOXA, as a party to the
purchase agreement for the December 2009 acquisition with us, and prior to the
acquisition, as a supplier of our SPOT satellite GPS messenger
products.
8
PLAN
OF DISTRIBUTION
The
shares covered by this prospectus may be offered and sold from time to time by
the selling stockholders. The term “selling stockholders” includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a gift,
pledge, distribution or other non-sale related transfer. Each selling
stockholder will act independently of us in making decisions with respect to the
timing, manner and size of each sale. Such sales may be made on one
or more exchanges or in the over-the-counter market or otherwise, at prices and
under terms then prevailing or at prices related to the then current market
price or in negotiated transactions. Selling stockholders may sell
their shares by one or more of, or a combination of, the following
methods:
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
own account pursuant to this
prospectus;
|
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker solicits
purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
·
|
over-the-counter
distribution in accordance with the rules of The NASDAQ Stock
Market;
|
|
|
·
|
in
privately negotiated transactions;
|
|
|
·
|
short
sales; and
|
|
|
·
|
in
options transactions.
|
In
addition, any shares that qualify for sale pursuant to Rule 144 may be sold
under Rule 144 rather than pursuant to this prospectus.
To the
extent required, this prospectus may be amended or supplemented from time to
time to describe a specific plan of distribution. In connection with
distributions of the shares, a selling stockholder may enter into hedging
transactions with broker-dealers or other financial institutions. In
connection with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in the course of
hedging the positions they assume with a selling stockholder. A
selling stockholder also may sell the common stock short and redeliver the
shares to close out such short positions. A selling stockholder also
may enter into option or other transactions with broker-dealers or other
financial institutions that require the delivery to the broker-dealers or other
financial institutions of shares offered by this prospectus, which shares the
broker-dealers or other financial institutions may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction). A selling stockholder may pledge shares to
broker-dealers or other financial institutions, and, upon a default, a
broker-dealer or other financial institution may effect sales of the pledged
shares pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
In
effecting sales, broker-dealers or agents engaged by a selling stockholder may
arrange for other broker-dealers to participate. Broker-dealers or
agents may receive commissions, discounts or concessions from a selling
stockholder in amounts to be negotiated prior to the sale.
In
offering the shares covered by this prospectus, a selling stockholder and any
broker-dealers who execute sales for a selling stockholder may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with such
sales. Any profits realized by a selling stockholder and the
compensation of any broker-dealer may be deemed to be underwriting discounts and
commissions.
In order
to comply with the securities laws of certain states, if applicable, the shares
must be sold in such jurisdictions only through registered or licensed brokers
or dealers. In addition, in certain states the shares may not be sold
unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available
and is complied with.
9
We have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Securities Exchange Act of 1934 may apply to sales of shares in the
market and to the activities of the selling stockholders and their
affiliates. In addition, we will make copies of this prospectus
available to the selling stockholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The selling
stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act.
At the
time a particular offer of shares is made, if required, a prospectus supplement
will be distributed that will set forth the number of shares being offered and
the terms of the offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount, commission and
other item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
10
LEGAL
MATTERS
The
validity of the shares offered by this prospectus has been passed upon for
Globalstar by Taft Stettinius & Hollister LLP, Cincinnati,
Ohio.
EXPERTS
Our
consolidated financial statements as of December 31, 2009 and 2008, and for
each of the years in the three-year period ended December 31, 2009, and our
effectiveness of internal control over financial reporting as of
December 31, 2009 have been incorporated by reference herein and in the
registration statement in reliance upon the reports of Crowe Horwath LLP
(f/k/a Crowe Chizek and Company LLP), an independent registered public
accounting 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 SEC under the Securities Exchange Act of 1934. You may read and copy
the Registration Statement of which this prospectus is a part, including any
exhibits filed with it, and all other reports or other information we may file
with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. You may obtain copies of this information at
prescribed rates by mail from the Public Reference Room of the SEC. You may call
the SEC at 1-800-SEC-0330 for information on the operation of the Public
Reference Room. In addition, the SEC maintains a Website at http://www.sec.gov that
contains our reports, proxy and information statements and other information
that we file with the SEC. These filings may also be found on the Investor
Relations section of our website at http://www.globalstar.com.
However, any information that is included on or linked to our website is not a
part of or incorporated by reference into this prospectus.
This
prospectus is part of a Registration Statement that we filed with the
SEC. The Registration Statement contains more information than this
prospectus regarding us and our common stock, including certain
exhibits. You may obtain a copy of the Registration Statement from
the SEC address listed above or from the SEC’s website.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
We are
“incorporating by reference” herein important business and financial information
that we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference or deemed incorporated by reference is an important
part of this prospectus, and information that we file later with the SEC will be
deemed to update automatically and supersede this incorporated
information.
We
incorporate by reference our documents listed below (File No. 001-33117) and any
future filings we make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this prospectus and prior to
the sale of all the shares covered by his prospectus (excluding any information
furnished to the SEC pursuant to Item 2.02 or Item 7.01 on any current
report on Form 8-K and any related exhibits). Any statement contained in
this prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this prospectus or
in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
|
|
•
|
Annual
report on Form 10-K for the fiscal year ended December 31, 2009,
as filed with the SEC on March 12, 2010;
and
|
|
|
•
|
The
description of our capital stock contained in our Registration Statement
on Form 8-A, as filed with the SEC on October 30, 2006, and any amendment or
report filed thereafter for the purpose of updating such
information.
|
11
You may
request a free copy of any of the documents incorporated by reference by making
an oral or written request directed to:
Globalstar,
Inc.
Attention:
Investor Relations
461 South
Milpitas Blvd.
Milpitas,
California 95035
Telephone:
(408) 933-4006
12
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the various expenses to be incurred in connection
with the sale and distribution of the securities being registered hereby, all of
which will be borne by Globalstar (except any underwriting discounts and
commissions and expenses incurred by the selling stockholders for brokerage,
accounting, tax or legal services or any other expenses incurred by the selling
stockholders in disposing of the shares). All amounts shown are
estimates except the Securities and Exchange Commission registration
fee.
|
Securities
and Exchange Commission registration fee
|
$ | 1,214.24 | ||
|
Legal
fees and expenses
|
$ | 5,000 | ||
|
Accounting
fees and expenses
|
$ | 5,000 | ||
|
Miscellaneous
expenses
|
$ | 1,000 | ||
|
Total
Expenses
|
$ | 12,214.24 |
Item
15. Indemnification of Directors and Officers
The
registrant’s certificate of incorporation provides that, to the fullest extent
provided from time to time by Delaware law, the registrant (a) shall indemnify
its directors and officers against judgments, fines, penalties, amounts paid in
settlement and expenses incurred by them in connection with actions, suits,
proceedings or claims arising out of their service to the registrant and, upon
receipt of certain undertakings, shall advance expenses to them in connection
with such matters and (b) may maintain insurance or make other financial
arrangements on behalf of its directors and officers for any liability and
expenses incurred by them, whether or not the registrant has authority to
indemnify them against such liability and expenses. No arrangement
made by the registrant may provide protection for a person judged liable for
intentional misconduct, fraud or a knowing violation of law, unless advancement
of expenses or indemnification is ordered by a court.
The
registrant maintains directors’ and officers’ liability insurance insuring its
directors and executive officers against certain liabilities arising out of
their service as such to the registrant.
Item
16. Exhibits
See
Exhibit Index following the signature page.
Item
17. Undertakings
Item 512(a) of Regulation
S-K. 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, as amended (the “Securities
Act”);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this 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 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
II-1
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) 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 Section 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), that are incorporated by reference in
this Registration Statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of this Registration
Statement.
(2) That, for the purposes of determining
any liability under the Securities Act, each 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 the 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.
Item 512(b) of Regulation
S-K. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
Item 512(h) of Regulation
S-K. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the indemnification provisions described
herein, 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 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 Securities Act and will be governed by the final
adjudication of such issue.
II-2
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, 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 Milpitas, California on March 19, 2010.
|
GLOBALSTAR,
INC.
|
|||
|
By:
|
/s/ Fuad Ahmad
|
||
|
Fuad
Ahmad
|
|||
|
Senior
Vice President and Chief Financial
Officer
|
|||
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each of the undersigned officers and directors of
the Registrant hereby constitutes and appoints Peter J. Dalton and Fuad Ahmad
his true and lawful attorney-in-fact and agent, with full power of substitution,
for him and on his behalf and in his name, place and stead, in any and all
capacities, to sign, execute and file this registration statement under the
Securities Act of 1933, as amended, and any or all amendments (including,
without limitation, post-effective amendments), with all exhibits and any and
all documents required to be filed with respect thereto, with the Securities and
Exchange Commission or any regulatory authority, granting unto such
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
in order to effectuate the same, as fully to all intents and purposes as he
himself might or could do, if personally present, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated as of
March 19, 2010.
|
Signature
|
Title
|
|
|
/s/ Peter J. Dalton
|
Chief
Executive Officer and Director
|
|
|
Peter
J. Dalton
|
(Principal
Executive Officer)
|
|
|
/s/ Fuad Ahmad
|
Senior
Vice President and Chief Financial Officer
|
|
|
Fuad
Ahmad
|
(Principal
Financial Officer)
|
|
|
|
||
|
/s/ Stuart Mar
|
Vice
President and Chief Accounting Officer
|
|
|
Stuart
Mar
|
(Principal
Accounting Officer)
|
|
|
/s/ James Monroe III
|
Chairman
of the Board
|
|
|
James
Monroe III
|
||
|
/s/ Kenneth E. Jones
|
Director
|
|
|
Kenneth
E. Jones
|
||
|
/s/ James F. Lynch
|
Director
|
|
|
James
F. Lynch
|
||
|
/s/ William A. Hasler
|
Director
|
|
|
William
A. Hasler
|
||
|
/s/ J. Patrick McIntyre,
Jr.
|
Director
|
|
|
J.
Patrick McIntyre, Jr.
|
||
|
/s/ Richard S. Roberts
|
Director
|
|
|
Richard
S. Roberts
|
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
5.1
|
Opinion
of Taft Stettinius & Hollister LLP
|
|
|
23.1
|
Consent
of Crowe Horwath LLP
|
|
|
23.2
|
Consent
of Taft Stettinius & Hollister LLP (included in Exhibit
5.1)
|
|
|
24.1
|
Power
of Attorney (included in signature page)
|