As filed with the Securities and Exchange Commission on June 3, 2009
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)
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Delaware
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33-0174996
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(State or Other Jurisdiction
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(I.R.S. Employer
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of Incorporation or Organization)
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Identification No.)
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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)
Keven K. Lippert, 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
12636 High Bluff Drive, Suite 400
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, or a smaller reporting company. See the definitions of “ large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
þ
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting
company)
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Smaller reporting company
o
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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Maximum
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Amount
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Maximum
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Aggregate
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Amount of
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Title of Each Class of
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to be
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Offering Price
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Offering
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Registration
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Securities to be Registered
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Registered (1)
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Per Share
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Price
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Fee
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Common stock, $0.0001 par value
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1,000,000 shares
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$
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23.54
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(2)
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$
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23,540,000.00
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$
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1,313.53
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(1)
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Pursuant to Rule 416(c) under the Securities Act of 1933 (the “Securities Act”), this
registration statement also covers an indeterminate amount of interests to be offered and sold
pursuant to the ViaSat, Inc. 401(k) Profit Sharing Plan (the “401(k) Plan”).
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(2)
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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 28, 2009, because the
offering price of the securities to be granted in the future is not currently determinable.
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TABLE OF CONTENTS
EXPLANATORY NOTE
This registration statement on Form S-8 is filed by ViaSat, Inc. (“ViaSat”) to register (1)
250,000 shares of common stock of ViaSat 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, (2) an additional 750,000 shares of common stock of ViaSat that may be
offered and sold to employees under the 401(k) Plan, which shares will be purchased by the 401(k)
Plan on the open market, and (3) an indeterminate amount of interests to be offered and sold
pursuant to the 401(k) Plan.
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.
Item 3. Incorporation of Documents by Reference.
ViaSat hereby incorporates the following documents in this registration statement by
reference:
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(a)
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ViaSat’s Annual Report on Form 10-K for the fiscal year ended April 3, 2009
filed with the Securities and Exchange Commission (“SEC”) on May 28, 2009;
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(b)
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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; and
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(c)
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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.
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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 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Our officers and directors are covered by certain provisions of the Delaware General
Corporation Law (the “DGCL”), our certificate of incorporation, our bylaws and insurance policies
that serve to limit and, in certain instances, to indemnify them against certain liabilities that
they may incur in such capacities. We are not aware of any claim or proceeding in the last three
years, or any threatened claim, that would have been or would be covered by these provisions. These
various provisions are described below.
In June 1986, Delaware enacted legislation that authorizes corporations to limit or
eliminate the personal liability of directors to corporations and their stockholders for monetary
damages for breach of directors’ fiduciary duty of care. This duty of care requires that, when
acting on behalf of the corporation, directors must exercise an informed business judgment based on
all significant information reasonably available to them. Absent the limitations now authorized by
such legislation, directors are accountable to corporations and their stockholders for monetary
damages for conduct constituting negligence or gross negligence in the exercise of their duty of
care. Although the statute does not change directors’ duty of care, it enables corporations to
limit available relief to equitable remedies such as injunction or rescission. Our certificate of
incorporation limits the liability of our directors to us or our stockholders (in their capacity as
directors but not in their capacity as officers) to the fullest extent permitted by such
legislation. Specifically, our directors will not be personally liable for monetary damages for
breach of a director’s fiduciary duty as director, except for liability: (1) for any breach of the
director’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of
dividends or unlawful share repurchases or redemptions as provided in Section 174 of the DGCL, or
(4) for any transaction from which the director derived an improper personal benefit.
As a Delaware corporation, we have the power, under specified circumstances generally
requiring the director or officer to act in good faith and in a manner he reasonably believes to be
in or not opposed to our best interests, to indemnify our directors and officers in connection with
actions, suits or proceedings brought against them by a third party or in our name, by reason of
the fact that they were or are such directors or officers, against expenses, judgments, fines and
amounts paid in settlement in connection with any such action, suit or proceeding. The bylaws
generally provide for mandatory indemnification of our directors and officers to the full extent
provided by Delaware corporate law. In addition, we have entered into indemnification agreements
with our directors and officers that generally provide for mandatory indemnification under
circumstances for which indemnification would otherwise be discretionary under Delaware law.
We maintain insurance on behalf of any person who is or was a director or officer of
ViaSat, or is or was a director or officer of ViaSat serving at the request of ViaSat as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or not we would have the
power or obligation to indemnify him against such liability under the provisions of the bylaws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The
Exhibit Index on page 6 is incorporated
herein by reference as the list of exhibits required as part of this registration statement.
Item 9. Undertakings.
(a) We hereby undertake:
(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;
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(ii) to reflect in the prospectus any facts or events arising after the effective date
of the 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; and
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do 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 SEC by us pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the 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) We hereby undertake that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a) or Section 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.
(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, we have been advised that in the opinion of the SEC 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 us of expenses incurred or paid by one of our directors, officers or controlling
persons 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, we 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 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 June 2,
2009.
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ViaSat, Inc.
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By:
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/s/ Mark D. Dankberg
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Mark D. Dankberg
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Chairman and Chief Executive Officer
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Each person whose signature appears below hereby constitutes and appoints Mark D. Dankberg and
Keven K. Lippert, 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.
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Signature
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Title
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Date
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/s/ Mark D. Dankberg
Mark D. Dankberg
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Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
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June 2, 2009
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/s/ Ronald G. Wangerin
Ronald G. Wangerin
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Vice President, Chief
Financial Officer
(Principal Financial and
Accounting Officer)
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June 2, 2009
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/s/ Robert W. Johnson
Robert W. Johnson
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Director
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June 2, 2009
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/s/ B. Allen Lay
B. Allen Lay
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Director
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June 2, 2009
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/s/ Jeffrey M. Nash
Jeffrey M. Nash
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Director
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June 2, 2009
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/s/ John P. Stenbit
John P. Stenbit
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Director
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June 2, 2009
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/s/ Michael B. Targoff
Michael B. Targoff
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Director
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June 2, 2009
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/s/ Harvey P. White
Harvey P. White
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Director
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June 2, 2009
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4
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 June 2, 2009.
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ViaSat, Inc. 401(k) Profit Sharing Plan
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By:
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/s/ Keven K. Lippert
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ViaSat, Inc., as Plan Administrator
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By:
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Keven K. Lippert
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Vice President and General Counsel
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5
EXHIBIT INDEX
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Exhibit
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Incorporated by Reference
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Filed
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Number
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Exhibit Description
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Form
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File No.
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Exhibit
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Filing Date
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Herewith
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5.1
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Opinion of Latham & Watkins LLP
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X
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5.2
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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.
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X
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23.1
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Consent of PricewaterhouseCoopers LLP
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X
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23.2
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Consent of Latham & Watkins LLP
(included in Exhibit 5.1 hereto)
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X
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24.1
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Power of Attorney (see signature page)
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X
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6
Exhibit 5.1
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12636 High Bluff Drive, Suite 400
San Diego, California 92130-2071
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Tel: +1.858.523.5400 Fax: +1.858.523.5450
www.lw.com
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FIRM / AFFILIATE OFFICES
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Abu Dhabi
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Munich
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Barcelona
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New Jersey
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Brussels
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New York
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Chicago
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Northern Virginia
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Doha
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Orange County
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June 3, 2009
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Dubai
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Paris
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Frankfurt
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Rome
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Hamburg
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San Diego
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Hong Kong
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San Francisco
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London
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Shanghai
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Los Angeles
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Silicon Valley
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Madrid
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Singapore
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Milan
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Tokyo
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Moscow
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Washington, D.C.
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ViaSat, Inc.
6155 El Camino Real
Carlsbad, California 92009
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Re:
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Registration Statement on Form S-8; 250,000 Shares of Common Stock, par
value $0.0001 per share
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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 250,000 shares (the
“
Shares
”) of common stock of the Company, par value $0.0001 per share, 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 June 3, 2009 (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 issue 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.
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 against payment therefor (not less than par value) in satisfaction of the Company’s
matching contributions to the Plan, assuming in each
June 3, 2009
Page 2
case that the issuance of Shares is duly
authorized by all necessary corporate action and in accordance with the requirements of applicable
law, 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
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DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224
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Plan Description: Prototype Non-standardized Profit Sharing Plan with CODA
FFN: 313D4191901-010 Case: 200611338 EIN: 71-0930784
BPD: 01 Plan: 010 Letter Serial No: M387566a
Date of Submission: 01/31/2006
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Contact Person:
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J P MORGAN RETIREMENT PLAN SERVICES LLC
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Janell Hayes/Letitia Young
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P O BOX 219700
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Telephone Number:
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KANSAS CITY, MO 64121
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513-263-3602/513-263-3584
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In Reference To:
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TEGE:EP:7521
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Date: 03/31/2008
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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.
This letter considers the changes in qualification requirements contained in the 2004 Cumulative
List of Notice 2004-84, 2004-2 C.B. 1030.
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. 2005-16, 2005-1 C.B. 674 and outlined below. Please review
Announcement 2008-23 I.R.B. 2008-14 to determine the items necessary for filing an application for
a determination letter if one is required for reliance, or is otherwise desired. The terms of the
plan must be followed in operation. Generally, the employer may request a determination letter by
filing an application with Employee Plans Determinations on Form 5307, Application for
Determination for Adopters of Master or Prototype or Volume Submitter Plans.
Except as provided below, our opinion does not apply with respect to the requirements of: (a) 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. See
section 19.02(1) of Rev. Proc. 2005-16, 2005-1 C.B. 674 regarding nonstandardized defined
contribution plans and the repeal of Code section 415(e). Our opinion also does not apply for
purposes of Code section 401(a)(16) if, after December 31, 1985, 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(1)(2).
J P MORGAN RETIREMENT PLAN SERVCIES LLC
FFN: 313D4191901-010
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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) and with respect to whether
the form of the plan satisfies the requirements of sections 401(k)(3) and 401(m)(2). In the case
of plans described in section 401(k)(11) and/or 401(m)(12), employers may also rely on the opinion
letter with respect to whether the form of the plan satisfies those requirements unless the plan
provides for the safe harbor contribution to be made under another plan.
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,
Andrew Zuckerman
Director,
Employee Plans Rulings and Agreements
