S-3 1 ds3.htm FORM S-3 FORM S-3

As filed with the Securities and Exchange Commission on December 5, 2006

Registration No. 333-            

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

WORLDSPACE, INC.

(Exact name of registrant as specified in its charter)

 

State of Delaware   52-1732881

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

 

8515 Georgia Avenue, Silver Spring, MD   20910
(Address of Principal Executive Offices)   (Zip Code)

(301) 960-1200

(Registrant’s telephone number, including area code)

Donald J. Frickel, Esq.

Executive Vice President, General Counsel and Secretary

WorldSpace, Inc.

8515 Georgia Avenue, Silver Spring, MD 20910

(301) 960-1200

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copy to:

Jeffrey E. Cohen, Esq.

Baker & McKenzie LLP

1114 Avenue of the Americas

New York, NY 10036

(212) 626-4936

APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this registration statement becomes effective.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ¨

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), 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. ¨

CALCULATION OF REGISTRATION FEE

 

 

Title of

securities to

be registered

    Amount
to be
registered(1)		    Proposed
maximum
offering price
per share(2)		    Proposed
maximum
aggregate
offering price(2)		    Amount of
registration
fee (3)

Class A Common Stock, par value $0.01 per share(4)

    3,008,026    $3.47    $ 10,437,850.22    $1,117
 

 

(1) All of the shares of the Registrant’s Class A Common Stock, par value $0.01 per share, offered hereby are being offered for the account of selling stockholders named in this prospectus. Pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number of shares of Class A Common Stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.

 

(2) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rule 457(h) under the Securities Act, computed based upon a weighted average exercise price of $3.47 per share.

 

(3) Calculated at a rate of $107.00 per million pursuant to SEC Fee Rate Advisory #5 for Fiscal Year 2006.

 

(4) Represents the shares of Class A Common Stock subject to options.

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

The information in this prospectus is not complete and may be changed. The selling stockholders 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 December 5, 2006

PRELIMINARY PROSPECTUS

[Logo]

3,008,026 Shares

Class A Common Stock

This prospectus relates to the registration of 3,008,026 shares of our Class A Common Stock which are subject to options issued by our predecessor corporation. The shares issuable upon exercise of the options are being registered to permit the option holders, upon exercise of the options, to sell the shares from time to time in the public market.

We are not selling any securities under this prospectus and will not receive any of the proceeds from the sale of shares hereunder.

The shares of Class A Common Stock covered by this prospectus may be offered or sold from time to time directly to purchasers or through agents, underwriters, brokers or dealers at prevailing market or privately negotiated prices and on other terms to be determined at the time of sale. See “Plan of Distribution.”

Our Class A Common Stock is listed on the Nasdaq Global Market under the trading symbol “WRSP.” On December 4, 2006, the last reported sale price of our Class A Common Stock was $4.82 per share.

Investing in our Class A Common Stock involves a high degree of risk. Before buying any shares, you should carefully read the discussion of material risks of investing in our common stock beginning on page 29 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and any risk factors set forth in our other filings with the Securities and Exchange Commission (“SEC”) pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

The date of this prospectus is December                     , 2006.

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus may contain or incorporate by reference information that includes or is based upon forward-looking statements. These statements may relate to our growth strategy and our future financial performance, including our operations, economic performance, financial condition and prospects, and other future events. We generally identify forward-looking statements by using such words as “anticipate,” “believe,” “can,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “seek,” “should,” “will,” or variations of such words or other similar expressions and the negatives of such words. These forward-looking statements are only predictions and are based on our current expectations.

In addition, a number of known and unknown risks, uncertainties and other factors could affect the accuracy of these statements, including the risks described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and any risk factors set forth in our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. Some of the more significant known risks that we face are uncertainty regarding market acceptance of our products and services and our ability to generate revenue or profit. Other important factors to consider in evaluating our forward-looking statements include:

 

  •   our possible inability to execute our strategy due to changes in our industry or the economy generally;

 

  •   our possible inability to execute our strategy due to changes in political, economic and social conditions in the markets in which we operate;

 

  •   uncertainties associated with currency exchange fluctuations;

 

  •   changes in laws and regulations governing our business and operations or permissible activities;

 

  •   changes in our business strategy; and

 

  •   the success of our competitors and the emergence of new competitors.

Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee our future results, levels of activity or performance. Any or all of our forward-looking statements in this prospectus may turn out to be inaccurate. We have based these forward-looking statements on our current expectations and projections about future events and financial, political and social trends and assumptions we made based on information currently available to us. These statements may be affected by inaccurate assumptions we might have made or by known or unknown risks and uncertainties, including the risks and uncertainties described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and any risk factors set forth in our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. In light of these assumptions, risks and uncertainties, the forward-looking events and circumstances discussed in this prospectus may not occur as contemplated, and actual results could differ materially from those anticipated or implied by the forward-looking statements.

 

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Forward-looking statements contained herein speak only as of the date of this prospectus. Unless required by law, we undertake no obligation to update publicly or revise any forward-looking statements to reflect new information or future events or otherwise. You should, however, review the factors and risks described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and any risk factors set forth in our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. See “Where You Can Find More Information” and “Incorporation by Reference” elsewhere in this prospectus.

 

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ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement that we filed with the SEC using a “shelf” registration process. Under this shelf process, the selling stockholders may, from time to time, sell Class A Common Stock in one or more offerings. You should read this prospectus together with additional information described in “Where You Can Find More Information” and “Incorporation by Reference” elsewhere in this prospectus.

You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it.

You should not assume that the information in this prospectus is accurate after the date of this prospectus. Our business, financial condition and results of operations and prospects may have changed since that date.

OUR COMPANY

We are a global media and entertainment company which provides satellite-based digital radio services.

Our principal executive office is located at 8515 Georgia Avenue, Silver Spring, Maryland 20910 and our telephone number at that office is (301) 960-1200. Our website is located at www.worldspace.com. Information contained on our website is not part of, and is not incorporated into, this prospectus.

THE OFFERING

 

Shares of Class A Common Stock outstanding prior to exercise of options held by the selling stockholders(1)    38,952,498
Shares of Class A Common Stock that may be offered by selling stockholders, upon exercise of options    3,008,026
Shares of Class A Common Stock to be outstanding following exercise of options(1)    41,960,524
Use of proceeds    We will not receive any proceeds from the sale of shares by the selling stockholders.
Selling Stockholders    See “Selling Stockholders” for information concerning the stockholders who may sell shares of our Class A Common Stock pursuant to this prospectus.
Plan of distribution    See “Plan of Distribution.”
Nasdaq Global Market symbol    WRSP

 

(1) Based on the number of shares of Class A Common Stock outstanding as of December 1, 2006.

RISK FACTORS

You should carefully consider the specific risks described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 and any risk factors set forth in our other filings with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act before making an investment decision. See “Where You Can Find More Information” and “Incorporation by Reference” elsewhere in this prospectus.

 

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USE OF PROCEEDS

We will not receive any proceeds from any sale of Class A Common Stock by the selling stockholders.

SELLING STOCKHOLDERS

The shares of common stock attributed to the selling stockholders are shares of our Class A Common Stock subject to options issued to the selling stockholders by our predecessor company, WorldSpace, Inc., a Maryland corporation (“WSI Maryland”). Pursuant to a reorganization of our company prior to its initial public offering, any options to purchase shares of common stock of WSI Maryland that remained outstanding as of December 30, 2004 were converted on a one-for-one basis into options to purchase shares of our Class A Common Stock.

This prospectus relates to the possible resale by the holders of the options of shares of our Class A Common Stock issuable upon the exercise of the options. When we refer to “selling stockholders” in this prospectus, we mean those persons listed in the table below, and the pledgees, donees, permitted transferees, assignees, successors and others who later come to hold any of the selling stockholders’ interests in such shares of our Class A Common Stock other than through a public sale.

The selling stockholders may from time to time offer and sell pursuant to this prospectus any or all of the shares of Class A Common Stock covered by this prospectus. The selling stockholders, however, make no representations that the shares covered by this prospectus will be offered for sale.

The table below presents information regarding the selling stockholders and the shares that each such selling stockholder may offer and sell from time to time under this prospectus. The beneficial ownership of our common stock set forth in the table is determined in accordance with the rules of the SEC. The number of shares in the column “Number of Shares of Common Stock Covered by This Prospectus” represents all of the shares that a selling stockholder may offer under this prospectus. The column “Shares of Common Stock Beneficially Owned After Offering” assumes that the selling stockholder will have sold all of such shares under this prospectus. However, because the selling stockholders may offer, from time to time, some or none of such shares under this prospectus, or in another permitted manner, no assurances can be given as to the actual number of shares that will be sold by the selling stockholder or that will be held by the selling stockholder after completion of the sales. The percentage in the column “Percent of Class Owned After Offering” reflects the ownership percentage that the selling stockholder would hold if the selling stockholder, but no other selling stockholder, sold all his or her shares covered by this prospectus. Unless otherwise indicated in the footnotes below, the persons named in the table have sole voting and investment power as to all shares beneficially owned. Unless otherwise indicated below, the persons named in the table do not hold and have not held, within the past three years, any position, office or other material relationship with the company or any of its predecessors or affiliates.

 

Name

    Shares of Common
Stock Beneficially
Owned Before Any
Offering		    Number of Shares
of Common Stock
Covered by This
Prospectus(1)		    Shares of Common Stock
Beneficially Owned After
Offering		    Percent of Class
Owned After Offering		  

Benno A. Ammann

    528,125    528,125    0    —    

Sophie Boresche

    13,542    13,542    0    —    

Samuel J. Campanella

    85,109    85,109    0    —    

Arleen Cheston

    6,250    6,250    0    —    

Tara Giunta(2)

    9,375    9,375    0    —    

Charles McC. Mathias(3)

    67,500    62,500    5,000    *     

Wegard D. Holby

    93,750    93,750    0    —    

Jack F. Kemp(4)

    15,625    15,625    0    —    

Nassim Kochman

    6,250    6,250    0    —    

James R. Laramie(5)

    1,649,188    312,500    1,336,688    3.3 %

Tedros A. Lemma(6)

    31,250    31,250    0    —    

George K. McGhee

    93,750    93,750    0    —    

Tedson Meyers

    12,500    12,500    0    —    

Michael Nobel(7)

    46,875    46,875    0    —    

Martine A. Rothblatt

    1,590,704    1,000,000    590,704    1.5 %

Noah A. Samara(8)

    27,490,193    565,625    26,924,568    57.1 %

Lawrence G. Schafran(9)

    152,500    62,500    90,000    *     

Heinz Stubblefield

    62,500    62,500    0    —    

 

* Less than 1%.

 

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(1) Each of the selling stockholders may offer under this prospectus up to the number of shares of Class A Common Stock listed in the third column of this table. The selling stockholders may elect to sell all or a part of their Class A Common Stock in the event that we commit to an underwritten public offering of our Class A Common Stock. In addition, the selling stockholders may sell all or a part of their Class A Common Stock in an offering in which we do not participate. The decision by any of the selling stockholders to sell any of their respective shares of Class A Common Stock in an offering will depend upon the market price of our Class A Common Stock at that time and other factors deemed relevant by such selling stockholder. See “Plan of Distribution” for a description of the transactions in which the selling stockholders may offer or sell their Class A Common Stock.

 

(2) Ms. Giunta is a partner at Paul, Hastings, Janofsky & Walker LLP, a law firm which, from time to time during the last three years has provided services to the company.

 

(3) Senator Mathias is a director of the company.

 

(4) Mr. Kemp is a director of the company.

 

(5) Mr. Laramie is a director of the company.

 

(7) Dr. Nobel is a director of the company.

 

(8) Mr. Samara is the Chairman, Chief Executive Officer and President of the company. The shares of common stock attributed to Mr. Samara include (i) all of the shares of Class A Common Stock held by TelUS Communications (1,875,000 shares), over which he shares voting and dispositive power under certain circumstances with Mr. Eyob Samara, (ii) all of the shares of common stock held by Yenura Pte. Ltd. (17,426,443), over which he holds sole voting and dispositive power, (iii) 591,875 shares of Class A Common stock granted to Mr. Samara in the form of a restricted stock award, which award will vest on January 2, 2007, (iv) 7,031,250 shares of common stock in respect of options granted to Mr. Samara under the company’s 1996 Shares Option Plan and (v) 565,625 shares of common stock in respect of options issued by WSI Maryland.

 

(9) Mr. Schafran served as a director of the company and its predecessors from 2000 until 2005.

 

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PLAN OF DISTRIBUTION

We are registering the shares of Class A Common Stock issuable upon exercise of options to permit the resale of these shares of Common Stock by the holders of the options from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of Class A Common Stock. We will bear all fees and expenses incident to our obligation to register the shares of Class A Common Stock.

The selling stockholders may sell all or a portion of the shares of Class A Common Stock beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the shares of Class A Common Stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The shares of Class A Common Stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions,

 

  •   on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;

 

  •   in the over-the-counter market;

 

  •   in transactions otherwise than on these exchanges or systems or in the over-the-counter market;

 

  •   through the writing of options, whether such options are listed on an options exchange or otherwise;

 

  •   ordinary brokerage transactions and transactions in which the broker-dealer 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;

 

  •   purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

  •   an exchange distribution in accordance with the rules of the applicable exchange;

 

  •   privately negotiated transactions;

 

  •   short sales;

 

  •   sales pursuant to Rule 144;

 

  •   broker-dealers may agree with the selling securityholders to sell a specified number of such shares at a stipulated price per share;

 

  •   a combination of any such methods of sale; and

 

  •   any other method permitted pursuant to applicable law.

If the selling stockholders effect such transactions by selling shares of Class A Common Stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of Class A Common Stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the

 

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shares of Class A Common Stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of Class A Common Stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of Class A Common Stock short and deliver shares of Class A Common Stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of Class A Common Stock to broker-dealers that in turn may sell such shares.

The selling stockholders may pledge or grant a security interest in some or all of the options or shares of Class A Common Stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of Class A Common Stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of Class A Common Stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

The selling stockholders and any broker-dealer participating in the distribution of the shares of Class A Common Stock may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of Class A Common Stock is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of shares of Class A Common Stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers. In compliance with guidelines of the National Association of Securities Dealers, or NASD, the maximum consideration or discount to be received by any NASD member or independent broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus supplement.

There can be no assurance that any selling stockholder will sell any or all of the shares of Class A Common Stock registered pursuant to the shelf registration statement, of which this prospectus forms a part.

The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of Class A Common Stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Class A Common Stock to engage in market-making activities with respect to the shares of Class A Common Stock. All of the foregoing may affect the marketability of the shares of Class A Common Stock and the

 

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ability of any person or entity to engage in market-making activities with respect to the shares of Class A Common Stock.

Once sold under the shelf registration statement, of which this prospectus forms a part, the shares of Class A Common Stock will be freely tradable in the hands of persons other than our affiliates.

INCORPORATION BY REFERENCE

The SEC allows us to incorporate by reference certain information we file with the SEC. This permits us to disclose important information to you by referencing these filed documents. Any information referenced this way is considered part of this prospectus, and any information filed with the Commission subsequent to this prospectus will automatically be deemed to update and supersede this information. We incorporate by reference the following documents which have been filed with the Commission.

 

  •   Our Annual Report on Form 10-K for the fiscal year ended December 31, 2005;

 

  •   Our Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2006, for the fiscal quarter ended June 30, 2006 and for the fiscal quarter ended September 30, 2006;

 

  •   Our Proxy Statement on Schedule 14A for our May 10, 2006 annual meeting of stockholders;

 

  •   Our Current Reports on Form 8-K filed on March 3, 2006, April 10, 2006, May 10, 2006, August 30, 2006, September 13, 2006 and October 20, 2006, provided, however, that the Registrant is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless, and to the extent, specified in any such Current Report on Form 8-K; and

 

  •   The description of our Class A Common Stock, which is registered under Section 12 of the Exchange Act, contained in our Form 8-A, filed on July 29, 2005 with the SEC under Section 12(g) of the Exchange Act.

We also incorporate by reference into this prospectus all documents that we may subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the termination of the offering, including all documents that we may file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of first filing this registration statement and prior to the effectiveness of this registration statement, provided, however, that the Registrant is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless, and to the extent, specified in any such Current Report on Form 8-K. Any statement herein or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in any subsequently filed document which also is incorporated or 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.

We will provide without charge upon written or oral request to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or all of the documents which are incorporated by reference in this prospectus (other than exhibits unless such exhibits are specifically incorporated by reference in such documents). Requests should

 

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be directed to Investor Relations, WorldSpace, Inc., 8515 Georgia Avenue, Silver Spring, MD 20910, or by calling WorldSpace Investor Relations directly at (301) 960-1200.

LEGAL MATTERS

The validity of the Class A Common Stock offered hereby will be passed upon for the selling stockholders by Baker & McKenzie LLP, New York, New York.

EXPERTS

The consolidated financial statements of WorldSpace, Inc. incorporated in this prospectus by reference to the Annual Report on Form 10-K for the fiscal year ended December 31, 2005 have been audited by Grant Thornton LLP, independent registered public accountants, as set forth in its report thereon, and have been incorporated herein in reliance on said report of such firm given on its authority as experts in auditing and accounting in giving said report.

WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and current reports, proxy statements and other information with the SEC. The reports, proxy statements and other information filed by us may be inspected without charge at the public reference room of the SEC, which is located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain copies of all or any part of the reports, proxy statements and other information from the public reference room, upon the payment of the prescribed fees. You may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC maintains a web site at www.sec.gov that contains reports, proxy statements and other information regarding registrants like us that file electronically with the SEC. You can inspect the reports, proxy statements and other information on this website.

This prospectus, which constitutes part of a registration statement on Form S-3 filed with the SEC, does not include all of the information, undertakings and exhibits included in such registration statement. Copies of the full registration statement can be obtained from the SEC as indicated above, or from us.

 

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution

The following table sets forth the costs and expenses payable by us in connection with the Class A Common Stock being registered. The selling stockholders will not bear any portion of such expenses. All the amounts shown are estimates, except the SEC registration fee and the NASD filing fee.

 

SEC registration fee

    $ 1,117

Legal fees and expenses

    $ 20,000

Accounting fees and expenses

    $ 5,000

NASD filing fee

    $ 1,544

Miscellaneous expenses

    $ 2,500

Total

    $ 30,161

 

Item 15. Indemnification of Directors and Officers

Delaware General Corporation Law. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit, or proceeding, provided the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. A similar standard of care is applicable in the case of actions by or in the right of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person will have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action was brought determines that, despite the adjudication of liability but in view of all of the circumstances of the case, the person is fairly and reasonably entitled to indemnity for expenses that the Delaware Court of Chancery or other court shall deem proper.

Charter and by-laws. WorldSpace’s certificate of incorporation and bylaws provide that it will indemnify and advance expenses to its directors, officers and employees to the fullest extent permitted by Delaware law in connection with any threatened, pending or completed action, suit or proceeding to which such person was or is a party or is threatened to be made a party by reason of the fact that he or she is or was WorldSpace’s director, officer or employee, or is or was serving at WorldSpace’s request as a director, officer, employee or agent of another corporation or enterprise.

 

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Insurance. WorldSpace also has directors’ and officers’ liability insurance to insure our directors and officers against liability for actions or omissions occurring in their capacity as a director or officer, subject to certain exclusions and limitations.

SEC Position. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling WorldSpace pursuant to the foregoing provisions, WorldSpace has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable.

 

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Item 16. List of Exhibits

The following is a list of exhibits filed as part of this registration statement, which are incorporated herein.

 

Exhibit

Number

  

Exhibit Description

3.1(a)   Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-124044) filed on April 13, 2005).
3.1(b)   Amendment to Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1(b) to Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-124044) filed on July 19, 2005).
3.1(c)   Amendment to Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1(c) to Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-124044) filed on July 19, 2005).
3.2        By-laws of WorldSpace, Inc. (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1 (File No. 333-124044) filed on April 13, 2005).
4.1        Provisions defining the rights of holders of our Class A Common Stock in our Certificate of Incorporation, as amended, and By-laws (included in Exhibits 3.1 and 3.2).
5.1        Opinion of Baker & McKenzie LLP.
23.1       Consent of Grant Thornton LLP.
23.2       Consent of Baker & McKenzie LLP (included in Exhibit 5.1).
24.1       Power of Attorney (included on the signature page to this Registration Statement).

 

Item 17. Undertakings

WorldSpace hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) To reflect in the prospectus any facts or events arising after the effective date of 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 the registration statement. Notwithstanding the foregoing, any

 

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increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;

(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) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by WorldSpace pursuant to Section 13 or 15(d) of 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 purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

WorldSpace hereby undertakes that, for purposes of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

WorldSpace hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of WorldSpace’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefits 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.

Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of WorldSpace pursuant to the foregoing provisions, or otherwise, WorldSpace has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by WorldSpace of expenses incurred or paid by a director, officer or controlling person of WorldSpace 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, WorldSpace 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 of 1933 and will be governed by the final adjudication of such issue.

 

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Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets 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 New York, New York, on December 5, 2006.

 

WORLDSPACE, INC.
By:   /s/ Noah A. Samara
Noah A. Samara
Chairman, Chief Executive Officer and President

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on December 5, 2006. Each person whose signature appears below as a signatory to this registration statement hereby constitutes and appoints Noah A. Samara and Donald J. Frickel, or either one of them, as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments and post-effective amendments to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said 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, as fully to all intents and purposes as that person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any substitute therefore may lawfully do or cause to be done by virtue hereof.

 

Signatures

   

Title

/s/ Noah A. Samara

Noah A. Samara

   

Chairman, Chief Executive Officer

and President

(Chief Executive Officer)

/s/ Sridhar Ganesan

Sridhar Ganesan

   

Executive Vice President-Chief Financial Officer

(Chief Financial Officer)

/s/ Vincent Loiacono

Vincent Loiacono

   

Senior Vice President

(Chief Accounting Officer)

/s/ Kassahun Kebede

Kassahun Kebede

    Director

/s/ Jack F. Kemp

Jack F. Kemp

    Director

/s/ James R. Laramie

James R. Laramie

    Director

/s/ Charles McC. Mathias

Charles McC. Mathias

    Director

 

Michael Nobel

    Director

/s/ William Schneider, Jr.

William Schneider, Jr.

    Director

 

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EXHIBIT INDEX

 

Exhibit

Number

  

Exhibit Description

3.1(a)   Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (File No. 333-124044) filed on April 13, 2005).
3.1(b)   Amendment to Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1(b) to Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-124044) filed on July 19, 2005).
3.1(c)   Amendment to Certificate of Incorporation of WorldSpace, Inc. (incorporated by reference to Exhibit 3.1(c) to Amendment No. 6 to the Registration Statement on Form S-1 (File No. 333-124044) filed on July 19, 2005).
3.2        By-laws of WorldSpace, Inc. (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form S-1 (File No. 333-124044) filed on April 13, 2005).
4.1        Provisions defining the rights of holders of our Class A Common Stock in our Certificate of Incorporation, as amended, and By-laws (included in Exhibits 3.1 and 3.2).
5.1        Opinion of Baker & McKenzie LLP.
23.1       Consent of Grant Thornton LLP.
23.2       Consent of Baker & McKenzie LLP (included in Exhibit 5.1).
24.1       Power of Attorney (included on the signature page to this Registration Statement).

 

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