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As filed with the Securities and Exchange Commission on February 4, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIASAT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0174996
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2290 COSMOS COURT
CARLSBAD, CALIFORNIA 92009
(619) 438-8099
(Address of principal executive offices, including zip code,
and telephone number)
THE 1996 EQUITY PARTICIPATION PLAN OF VIASAT, INC.
THE VIASAT, INC. EMPLOYEE STOCK PURCHASE PLAN
VIASAT, INC. 1993 STOCK OPTION PLAN
(Full title of the plans)
MARK D. DANKBERG Copies to:
CHAIRMAN, PRESIDENT AND THOMAS A. EDWARDS, ESQ.
CHIEF EXECUTIVE OFFICER LATHAM & WATKINS
VIASAT, INC. 701 "B" STREET
2290 COSMOS COURT SUITE 2100
CARLSBAD, CALIFORNIA 92009 SAN DIEGO, CALIFORNIA 92101
(619) 438-8099 (619) 236-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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=======================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Share Price Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value.... 1,358,472 (2) $10,691,070.05 $3,240.00
=======================================================================================================================
</TABLE>
(1) A maximum of 750,000 shares of common stock were reserved for issuance
under The 1996 Equity Participation Plan of ViaSat, Inc. (the "1996 Equity
Participation Plan") and a maximum of 250,000 shares of common stock were
reserved for issuance under The ViaSat, Inc. Employee Stock Purchase Plan
(the "Employee Stock Purchase Plan"). All shares reserved for issuance
under the 1996 Equity Participation Plan and the Employee Stock Purchase
Plan are being registered hereunder. Options to purchase an aggregate of
358,472 shares of common stock are outstanding under the ViaSat, Inc. 1993
Stock Option Plan (the "1993 Stock Option Plan"), all of which are also
being registered hereunder.
(2) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee, and is determined according to the
following offering price information: (i) under the 1996 Equity
Participation Plan 30,000 shares of common stock are subject to outstanding
options with an exercise price of $9.00 per share, 50,000 shares of common
stock are subject to outstanding options with an exercise price of $10.75
per share and the remaining 670,000 shares of common stock are reserved for
issuance upon exercise of options, rights and other awards to be granted in
the future; (ii) under the Employee Stock Purchase Plan all 250,000 shares
of common stock are reserved for issuance upon exercise of options to be
granted in the future; and (iii) under the
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1993 Stock Option Plan 17,824 shares of common stock are subject to
outstanding options with an exercise price of $0.34 per share, 44,097
shares of common stock are subject to outstanding options with an exercise
price of $0.48 per share, 57,943 shares of common stock are subject to
outstanding options with an exercise price of $0.82 per share, 99,597
shares of common stock are subject to outstanding options with an exercise
price of $1.36 per share, 18,338 shares of common stock are subject to
outstanding options with an exercise price of $1.50 per share, 102,335
shares of common stock are subject to outstanding options with an exercise
price of $4.09 per share and 18,338 shares of common stock are subject to
outstanding options with an exercise price of $4.50 per share. Pursuant to
Rule 457(h), for all shares of common stock being registered hereunder with
an exercise price which cannot be presently determined (670,000 shares of
common stock under the 1996 Equity Participation Plan and 250,000 shares of
common stock under the Employee Stock Purchase Plan), the Proposed Maximum
Offering Price Per Share is $9.94 per share of common stock, which is based
on the average of the high and low prices for the Company's common stock as
reported on the Nasdaq National Market on January 31, 1997.
Page 2 of 11
Exhibit Index on Page 8
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PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by ViaSat, Inc., a Delaware corporation (the "Company"), are
hereby incorporated by reference in this Registration Statement:
(a) The final prospectus used in connection with the Company's initial
public offering of the Company's common stock, par value $.0001 per
share (the "Common Stock"), as filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), on December 3, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the Company's fiscal year ended March 31, 1996; and
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, as filed with the Commission on
November 20, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date this Registration Statement is
filed with the Commission and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of it from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") gives Delaware corporations broad powers to indemnify their present and
former directors and officers against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with threatened, pending or completed actions, suits or
proceedings to which they are parties or are threatened to be made parties by
reason of being or having been such directors or officers, subject to specified
conditions and exclusions; gives a director or officer who successfully defends
an action the right to be so indemnified; and permits a corporation to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or otherwise.
The Company's Amended and Restated Certificate of Incorporation provides
that a director of the Company shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for breaches of the director's duty of loyalty to the Company or its
stockholders, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, liabilities for unlawful payment of
dividends, unlawful stock purchases and redemptions and transactions from which
the director derives an improper personal benefit.
As permitted by Section 145 of the DGCL, Article III, Section 13, of the
By-Laws of the Company provides, in general, for the indemnification by the
Company of its directors, officers, employees and agents (including officers and
directors serving another corporation, partnership, joint venture, trust or
other enterprise in any capacity at the Company's request), against liabilities
and expenses incurred in connection with actions, suits or proceeds brought
against them by a third party or in the right of the corporation, by reason of
the fact that they were or are such directors, officers, employees or agents,
provided that such person acted in good faith and in a manner that such person
reasonably believed was in the best interests of the Company or its
stockholders. Indemnification is not available under Article III, Section 13,
with respect to any claim, issue or matter in which such person is adjudicated
to be liable to the Company unless and only to the extent that a court
determines otherwise.
Policies of insurance may be obtained and maintained by the Company under
which its directors and officers will be insured, within the limits and subject
to the limitations of the policies, against certain expenses in connection with
the defense of, and certain liabilities which might be imposed as a result of,
actions, suits or proceedings to which they are parties by reason of being or
having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
See Exhibit Index on page 8 hereof.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 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 and 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 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 the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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
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Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Carlsbad, State of California, on January 31, 1997.
ViaSat, Inc.
By: /s/ MARK D. DANKBERG
---------------------------------------------------
Mark D. Dankberg
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each person whose signature appears below authorizes Mark D.
Dankberg and Gregory D. Monahan, and either of them, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact, for him
in any and all capacities, to sign any amendments (including post-effective
amendments) to this Registration Statement and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Commission.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ MARK D. DANKBERG Chairman, President and Chief January 31, 1997
- ----------------------------- Executive Officer (Principal
Mark D. Dankberg Executive Officer)
/s/ GREGORY D. MONAHAN Vice President, Chief Financial January 31, 1997
- ----------------------------- Officer and General Counsel
Gregory D. Monahan (Principal Financial Officer and
Principal Accounting Officer)
/s/ ROBERT W. JOHNSON Director January 31, 1997
- -----------------------------
Robert W. Johnson
/s/ JEFFREY M. NASH Director January 31, 1997
- -----------------------------
Jeffrey M. Nash
/s/ B. ALLEN LAY Director January 31, 1997
- -----------------------------
B. Allen Lay
</TABLE>
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EXHIBIT INDEX
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EXHIBIT PAGE
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4.1 The 1996 Equity Participation Plan of ViaSat, Inc. (the ---
"1996 Equity Participation Plan"). (Incorporated by
reference to Exhibit 10.8 to the Company's Registration
Statement on Form S-1 (File No. 333-13183) filed with the
Commission on October 1, 1996, as amended by Amendment No.
1 filed with the Commission on November 5, 1996, Amendment
No. 2 filed with the Commission on November 20, 1996 and
Amendment No. 3 filed with the Commission on November 22,
1996 (the "Registration Statement on Form S-1".)
4.2 Form of Incentive Stock Option Agreement under the 1996 ---
Equity Participation Plan. (Incorporated by reference to
Exhibit 10.9 to the Company's Registration Statement on
Form S-1.)
4.3 Form of Nonqualified Stock Option Agreement under the 1996 ---
Equity Participation Plan. (Incorporated by reference to
Exhibit 10.10 to the Company's Registration Statement on
Form S-1.)
4.4 The ViaSat, Inc. Employee Stock Purchase Plan. (Incorporated ---
by reference to Exhibit 10.11 to the Company's Registration
Statement on Form S-1.)
4.5 ViaSat, Inc. 1993 Stock Option Plan (the "1993 Stock Option ---
Plan"). (Incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement on Form S-1.)
4.6 Form of Incentive Stock Option Agreement under the 1993 Stock ---
Option Plan. (Incorporated by reference to Exhibit 10.6 to
the Company's Registration Statement on Form S-1.)
4.7 Form of Nonqualified Stock Option Agreement under the 1993 ---
Stock Option Plan. (Incorporated by reference to Exhibit
10.7 to the Company's Registration Statement on Form S-1.)
5.1 Opinion of Latham & Watkins. 9
23.1 Consent of Price Waterhouse LLP. 11
23.2 Consent of Latham & Watkins (included in Exhibit 5.1 hereto). ---
24.1 Power of Attorney (included on signature page hereto). ---
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Exhibit 5.1
[LATHAM & WATKINS LETTERHEAD]
February 4, 1997
ViaSat, Inc.
2290 Cosmos Court
Carlsbad, California 92009
Re: Form S-8 Registration Statement;
1,358,472 Shares of Common Stock
Ladies and Gentlemen:
In connection with the registration by ViaSat, Inc., a Delaware
corporation (the "Company"), of 1,358,472 shares of common stock, par value
$.0001 per share (the "Shares"), of the Company to be issued pursuant to (i) The
1996 Equity Participation Plan of ViaSat, Inc., (ii) The ViaSat, Inc. Employee
Stock Purchase Plan and (iii) the ViaSat, Inc. 1993 Stock Option Plan, under the
Securities Act of 1933, as amended (the "Act"), on a Registration Statement on
Form S-8 filed with the Securities and Exchange Commission on February 4, 1997
(as amended from time to time, the "Registration Statement"), you have requested
our opinion with respect to the matters set forth below.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization, issuance and sale of the Shares,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
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ViaSat, Inc.
February 4, 1997
Page 2
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction or any other laws, or as to any matters of
municipal law or the laws of any other local agencies within the state.
Subject to the foregoing, it is our opinion that as of the date hereof
the Shares have been duly authorized, and, upon the issuance of and payment for
the Shares in accordance with the terms set forth in the respective stock option
plans under which such Shares will be issued and sold, the Shares will be
validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 11, 1996, except for the
Recapitalization described in Note 1, which is as of November 4, 1996, which
appears on page F-2 of ViaSat Inc.'s Registration Statement on Form S-1 (No.
333-13183). We also consent to the reference to us under the heading "Experts"
in such Registration Statement.
/s/ PRICE WATERHOUSE LLP
San Diego, California
January 31, 1997
