Form S-8 VIASAT INC

May 29, 2019 4:20 PM

As filed with the Securities and Exchange Commission on May 29, 2019

Registration No. 333-            

 

UNITED STATES

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

of Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

 

6155 El Camino Real

Carlsbad, California 92009

(760) 476-2200

(Address of Principal Executive Offices)

 

 

Viasat, Inc. 401(k) Profit Sharing Plan

(Full Title of the Plan)

 

 

Robert Blair, Esq.

Vice President, General Counsel and Secretary

Viasat, Inc.

6155 El Camino Real

Carlsbad, California 92009

(760) 476-2200

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

 

Copies to:

Craig M. Garner, Esq.

Latham & Watkins LLP

12670 High Bluff Drive

San Diego, California 92130

(858) 523-5400

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

                Large accelerated filer ☒      Accelerated filer ☐
                Non-accelerated filer ☐      Smaller reporting company ☐                                 
     Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of

Securities to be Registered

 

Amount

to be

        Registered (1) (2)        

 

Proposed

Maximum

        Offering Price        

Per Share

 

Proposed

Maximum

        Aggregate        

Offering

Price

 

Amount of

        Registration        

Fee

 

Common stock, $0.0001 par value   1,000,000 shares   $86.78 (3)   $86,780,000.00   $10,517.74

 

 

(1)

Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Viasat, Inc. 401(k) Profit Sharing Plan (the “401(k) Plan”).

(2)

Pursuant to Rule 416 under the Securities Act, this registration statement also registers an indeterminate number of additional shares that may be issued pursuant to the 401(k) Plan as the result of any future stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of Viasat, Inc. common stock.

(3)

The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee. The computation is based upon the average of the high and low prices of Viasat, Inc. common stock as reported on the Nasdaq Global Select Market on May 23, 2019, because the offering price of the securities to be granted in the future is not currently determinable.


EXPLANATORY NOTE

This registration statement on Form S-8 is filed by Viasat, Inc. (“Viasat”) to register an additional 1,000,000 shares of Viasat common stock that may be contributed to the 401(k) Plan by Viasat in satisfaction of its company matching contribution obligations under the 401(k) Plan, which shares will be newly-issued shares. In accordance with Instruction E to Form S-8, the contents of the prior Form S-8 registration statements (Commission File Nos. 333-159708, 333-167379, 333-182015 and 333-204440) are incorporated herein by reference.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The documents containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act. These documents and the documents incorporated by reference into this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

Viasat hereby incorporates the following documents in this registration statement by reference:

 

  (a)

Viasat’s Annual Report on Form 10-K for the fiscal year ended March 31, 2019 filed with the Securities and Exchange Commission (“SEC”) on May 28, 2019, with an adjusted filing date of May 29, 2019;

 

  (b)

All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) since the end of the fiscal year covered by Viasat’s Annual Report on Form 10-K referred to in clause (a) above;

 

  (c)

The description of Viasat common stock set forth in Viasat’s registration statement on Form 8-A filed with the SEC on November 20, 1996, including any amendment or report filed for the purpose of updating such description; and

 

  (d)

The 401(k) Plan’s Annual Report on Form 11-K for the fiscal year ended March 31, 2018 filed with the SEC on September 19, 2018.

In addition, all documents filed by Viasat pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing such documents, except as to specific sections of such statements as set forth therein. 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 incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this registration statement 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 registration statement.

Under no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.


Item 8. Exhibits.

 

Exhibit       Incorporated by Reference    Filed
Number   Exhibit Description                             Form    File No.    Exhibit   Filing Date    Herewith

5.1

  Opinion of Latham & Watkins LLP*              X

5.2

  Copy of Internal Revenue Service Opinion Letter Regarding Qualification of the Viasat, Inc. 401(k) Profit Sharing Plan under Section 401 of the Internal Revenue Code              X

23.1

  Consent of PricewaterhouseCoopers, LLP, Independent Registered Public Accounting Firm              X

23.2

  Consent of Latham & Watkins LLP (included in Exhibit 5.1 hereto)              X

23.3

  Consent of KBF CPAs LLP, Independent Registered Public Accounting Firm              X

24.1

  Power of Attorney (see signature page)              X

* In lieu of the opinion of counsel or determination letter contemplated by Item 601(b)(5)(ii) of Regulation S-K with respect to the qualification of the 401(k) Plan, as amended to date, under Section 401 of the Internal Revenue Code of 1986, as amended (the “Code”), Viasat hereby undertakes that it will submit the 401(k) Plan to the Internal Revenue Service (“IRS”) in a timely manner when required and will make any and all changes required by the IRS in order to qualify the 401(k) Plan under Section 401 of the Code.


SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that the registrant 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 May 29, 2019.

 

Viasat, Inc.
By:  

        /s/ MARK DANKBERG

 

        Mark Dankberg

        Chairman and Chief Executive Officer

Each person whose signature appears below hereby constitutes and appoints Mark Dankberg and Robert Blair, jointly and severally, his attorneys-in-fact, each with the full power of substitution, for him in any and all capacities, to sign this registration statement, and any amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

  /s/ MARK DANKBERG

Mark Dankberg

 

Chairman of the Board and

Chief Executive Officer

(Principal Executive Officer)

  May 29, 2019

  /s/ SHAWN DUFFY

Shawn Duffy

 

Senior Vice President and Chief

Financial Officer

(Principal Financial and Accounting Officer)

  May 29, 2019

  /s/ RICK BALDRIDGE

Rick Baldridge

  Director, President and Chief Operating Officer   May 29, 2019

  /s/ FRANK J. BIONDI, JR.

Frank J. Biondi Jr.

  Director   May 29, 2019

  /s/ ROBERT JOHNSON

Robert Johnson

  Director   May 29, 2019

  /s/ ALLEN LAY

Allen Lay

  Director   May 29, 2019

  /s/ JEFFREY NASH

Jeffrey Nash

  Director   May 29, 2019

  /s/ SEAN PAK

Sean Pak

  Director   May 29, 2019

  /s/ VARSHA RAO

Varsha Rao

  Director   May 29, 2019

  /s/ JOHN STENBIT

John Stenbit

  Director   May 29, 2019

  /s/ HARVEY WHITE

Harvey White

  Director   May 29, 2019


Pursuant to the requirements of the Securities Act, the Plan Administrator of the Viasat, Inc. 401(k) Profit Sharing Plan 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 May 29, 2019.

 

Viasat, Inc. 401(k) Profit Sharing Plan
By:               /s/ SHAWN DUFFY                                         
     Viasat, Inc., as Plan Administrator’s Designee
     By:   Shawn Duffy
  Senior Vice President and Chief Financial Officer

Exhibit 5.1

 

   

12670 High Bluff Drive

  
LOGO   San Diego, California 92130   
  Tel: +1.858.523.5400 Fax: +1.858.523.5450
  www.lw.com   
   

 

FIRM / AFFILIATE OFFICES

  
    Beijing    Moscow
    Boston    Munich
    Brussels    New York
May 29, 2019     Century City    Orange County
    Chicago    Paris
    Dubai    Riyadh
    Düsseldorf    San Diego
    Frankfurt    San Francisco
    Hamburg    Seoul
    Hong Kong    Shanghai
    Houston    Silicon Valley
    London    Singapore
    Los Angeles    Tokyo
    Madrid    Washington, D.C.
    Milan   

Viasat, Inc.

6155 El Camino Real

Carlsbad, California 92009

 

  Re:

Registration Statement on Form S-8; 1,000,000 Shares of Common Stock, par value $0.0001 per share

Ladies and Gentlemen:

We have acted as special counsel to Viasat, Inc., a Delaware corporation (the “Company”), in connection with the proposed issuance by the Company of 1,000,000 shares (the “Shares”) of common stock of the Company, par value $0.0001 per share, that may be contributed by the Company in satisfaction of the Company’s matching contributions to the 401(k) Profit Sharing Plan of the Company (the “Plan”). The Shares are included in the Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on May 29, 2019 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as expressly stated herein with respect to the issuance of the Shares.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.

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.


May 29, 2019

Page 2

 

LOGO

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients, or certificates representing the Shares (in the form of the specimen certificate incorporated by reference as an exhibit to the Company’s most recent Annual Report on Form 10-K) have been manually signed by an authorized officer of the transfer agent and registrar therefor, and when the Shares have been issued by the Company in satisfaction of the Company’s matching contributions to the Plan against payment therefor (not less than par value) in the circumstances contemplated by the Plan, the issuance of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,
/s/ LATHAM & WATKINS LLP

Exhibit 5.2

 

LOGO   

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C. 20224

  

 

Plan Description: Prototype Non-standardized Profit Sharing Plan With CODA
FFN: 313A8770711-005 Case: 201205950 EIN: 84-1455663   
Letter Serial No: J396261a   
Date of Submission: 04/02/2012   
GREAT-WEST TRUST COMPANY, LLC    Contact Person:
8515 EAST ORCHARD ROAD        Janell Hayes
GREENWOOD VILLAGE, CO 80111    Telephone Number:
       513-263-3602
   In Reference To: TEGE:EP:7521
   Date: 03/31/2014

Dear Applicant:

In our opinion, the form of the plan identified above is acceptable under section 401 of the Internal Revenue Code for use by employers for the benefit of their employees. This opinion relates only to the acceptability of the form of the plan under the Internal Revenue Code. It is not an opinion of the effect of other Federal or local statutes.

You must furnish a copy of this letter, a copy of the approved plan, and copies of any subsequent amendments to each employer who adopts this plan. Effective on or after 10/31/2011, interim amendments adopted by the sponsor on behalf of employers must provide the date of adoption by the sponsor.

This letter considers the changes in qualification requirements contained in the 2010 Cumulative List of Notice 2010-90, 2010-52 I.R.B. 909.

Our opinion on the acceptability of the form of the plan is not a ruling or determination as to whether an employer’s plan qualifies under Code section 401(a). However, an employer that adopts this plan may rely on this letter with respect to the qualification of its plan under Code section 401(a), as provided for in Rev. Proc. 2011-49, 2011-44 I.R.B. 608, and outlined below. The terms of the plan must be followed in operation.

Except as provided below, our opinion does not apply with respect to the requirements of Code sections 401(a)(4), 401(1), 410(b), and 414(s). Our opinion does not apply for purposes of Code section 401(a)(10)(B) and section 401(a)(16) if an employer ever maintained another qualified plan for one or more employees who are covered by this plan. For this purpose, the employer will not be considered to have maintained another plan merely because the employer has maintained another defined contribution plan(s), provided such other plan(s) has been terminated prior to the effective date of this plan and no annual additions have been credited to the account of any participant under such other plan(s) as of any date within the limitation year of this plan. Also, for this purpose, an employer is considered as maintaining another plan, to the extent that the employer maintains a welfare benefit fund defined in Code section 419(e), which provides postretirement medical benefits allocated to separate accounts for key employees as defined in Code section 419A(d)(3), or an individual medical account as defined in Code section 415(l)(2), which is part of a pension or annuity plan maintained by the employer, or a simplified employee pension plan.

Our opinion does not apply for purposes of the requirement of section 1.401(a)-1 (b)(2) of the regulations applicable to a money purchase plan or target benefit plan where the normal retirement age under the employer’s plan is lower than age 62.

Letter 4334


GREAT-WEST TRUST COMPANY, LLC

FFN: 313A8770711-005

Page: 2

This is not a ruling or determination with respect to any language in the plan that reflects Section 3 of the Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (DOMA) or U.S. v. Windsor, 133 S. Ct. 2675 (2013), which invalidated that section.

Our opinion applies with respect to the requirements of Code section 410(b) if 100 percent of all nonexcludable employees benefit under the plan. Employers that elect a safe harbor allocation formula and a safe harbor compensation definition can also rely on an opinion letter with respect to the nondiscriminatory amounts requirement under section 401(a)(4). If this plan includes a CODA or otherwise provides for contributions subject to sections 401(k) and/or 401(m), the opinion letter can be relied on with respect to the form of the nondiscrimination tests of 401(k)(3) and 401(m)(2) if the employer uses a safe harbor compensation definition. In the case of plans described in section 401(k)(12) or (13) and/or 401(m)(11) or (12), employers may also rely on the opinion letter with respect to whether the form of the plan satisfies the requirements of those sections unless the plan provides for the safe harbor contribution to be made under another plan.

The employer may request a determination (1) as to whether the plan, considered with all related qualified plans and, if appropriate, welfare benefit funds, individual medical benefit accounts, and simplified employee pension plans, satisfies the requirements of Code section 401(a)(16) as to limitations on benefits and contributions in Code section 415 and the requirements of Code section 401(a)(10)(B) as to the top-heavy plan requirements in Code section 416; (2) with respect to whether a money purchase or target benefit plan’s normal retirement age which is earlier than age 62 satisfies the requirements of section 401(a)-1(b)(2) of the Income Tax Regulations; (3) that the plan is a multiple employer plan; (4) whether there has been a partial termination; and (5) to comply with published procedures of the Service (e.g. minimum funding waiver request). The employer may request a determination letter in these circumstances by filing an application with Employee Plans Determinations on Form 5300, without restating for the Cumulative List in effect when the application is filed.

If you, the master or prototype sponsor, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsor. Individual participants and/or adopting employers with questions concerning the plan should contact the master or prototype sponsor. The plan’s adoption agreement must include the sponsor’s address and telephone number for inquiries by adopting employers.

If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.

You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.

 

Sincerely Yours,
LOGO
Andrew E. Zuckerman
Director, Employee Plans Rulings and Agreements

Letter 4334

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Viasat, Inc. of our report dated May 29, 2019 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Viasat, Inc.’s Annual Report on Form 10-K for the year ended March 31, 2019.

 

/s/ PricewaterhouseCoopers LLP
San Diego, California

May 29, 2019

Exhibit 23.3

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this registration statement on Form S-8 of our report dated September 19, 2018 relating to the financial statements and supplemental schedule, which appears in Viasat, Inc. 401(k) Profit Sharing Plan’s annual report on Form 11-K for the year ended March 31, 2018.

 

/s/ KBF CPAs LLP

Irvine, California

May 29, 2019

Categories

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