As filed with the Securities and Exchange Commission on December 30, 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

 

 

Virgin Galactic Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   98-1366046

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

166 North Roadrunner Parkway, Suite 1C

Las Cruces, New Mexico

  88011
(Address of Principal Executive Offices)   (Zip Code)

 

 

2019 Incentive Award Plan

(Full Title of the Plan)

 

 

George Whitesides

President and Chief Executive Officer

166 North Roadrunner Parkway, Suite 1C

Las Cruces, New Mexico 88011

(Name and Address of Agent for Service)

(661) 824-6690

(Telephone Number, including Area Code, of Agent for Service)

 

 

Copies to:

 

Michelle Kley

Executive Vice President, General Counsel

Virgin Galactic Holdings, Inc.

166 North Roadrunner Parkway, Suite 1C

Las Cruces, New Mexico 88011

(661) 824-6690

 

Justin G. Hamill

Shayne Kennedy

Drew Capurro

Latham & Watkins LLP

885 Third Avenue

New York, NY 10022

(212) 906-1200

 

 

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 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

Common Stock, $0.0001 par value per share

  19,708,755   $11.23 - $11.58   $223,472,035   $29,007

 

 

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2019 Incentive Award Plan (the “2019 Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of common stock. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and 457(h) promulgated under the Securities Act, the offering price per share and the aggregate offering price (a) for shares issuable upon the exercise of outstanding options granted under the 2019 Plan is based on $11.58, which is the weighted-average exercise price of such outstanding options and (b) for shares reserved for future issuance under the 2019 Plan is based on $11.23, which is the average of the high and low prices of the common stock reported on the New York Stock Exchange consolidated reporting system as of December 26, 2019. The chart below details the calculations of the registration fee:

 

 

Securities   Number of
Shares 		  Offering Price
Per Share 		  Aggregate
Offering Price

Shares issuable upon the exercise of outstanding options granted under the 2019 Plan

  6,122,044   $11.58 (2)(a)   $70,893,270

Shares reserved for future grant under the 2019 Plan

  13,586,711   $11.23 (2)(b)   $152,578,765

Proposed Maximum Aggregate Offering Price

          $223,472,035

 

 

 

 

Proposed sale to take place as soon after the effective date of this

registration statement as awards under the plans are exercised and/or vest.

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

In this registration statement, Virgin Galactic Holdings, Inc. is sometimes referred to as the “Registrant,” “we,” “us” or “our.”

 

Item 3.

Incorporation of Documents by Reference

The SEC’s rules allow us to “incorporate by reference” information into this registration statement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. Information incorporated by reference is deemed to be part of this registration statement, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this registration statement or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement or a subsequently filed document incorporated by reference modifies or replaces that statement.

We hereby incorporate by reference into this registration statement the following documents previously filed with the SEC:

 

  •  

our Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 18, 2019;

 

  •  

our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, filed with the SEC on May 10, 2019, June  30, 2019, filed with the SEC on August 9, 2019, and September  30, 2019, filed with the SEC on November 12, 2019;

 

  •  

our Current Reports on Form 8-K filed with the SEC on March 11, 2019, July  9, 2019 (but only with respect to Item 1.01), September  10, 2019, October 23, 2019, October 29, 2019 and November 15, 2019;

 

  •  

our Amended Current Reports on Form 8-K/A filed with the SEC on July 11, 2019, October 29, 2019 and November 12, 2019; and

 

  •  

the description of our common stock contained in the our registration statement on Form 8-A dated September 11, 2017, filed with the SEC on September 12, 2017, and any amendment or report filed with the SEC for the purpose of updating the description.

All documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of the filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current Items 2.02 or 7.01 of Form 8-K, or exhibits furnished on such form that relate to such items, that is not deemed filed under such provisions. For the purposes of this registration statement, any statement contained in a document incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that 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.

Under no circumstances will any information filed under current Items 2.02 or 7.01 of Form 8-K, or exhibits furnished on such form that relate to such items, 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

Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware, or the DGCL, empowers a corporation to indemnify any person who was or is a party or who 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.

Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 145 of the DGCL further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who 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, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.

Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.

Any underwriting agreement or distribution agreement that the Registrant enters into with any underwriters or agents involved in the offering or sale of any securities registered hereby may require such underwriters or dealers to indemnify the Registrant, some or all of its directors and officers and its controlling persons, if any, for specified liabilities, which may include liabilities under the Securities Act of 1933, as amended.

Additionally, our certificate of incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and our bylaws provide that we will indemnify them to the fullest extent permitted by such law. We have entered into and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors. Under the terms of such indemnification agreements, we are required to indemnify each of our directors and officers, to the fullest extent permitted by the laws of the state of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was our director or officer or was serving at our request in an official capacity for another entity. We must indemnify our officers and directors against all reasonable fees, expenses, charges and other costs of any type or nature whatsoever, including any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal) or preparing to defend, be a witness or participate in any completed, actual, pending or threatened action, suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to indemnification under the indemnification agreement. The indemnification agreements also require us, if so requested, to advance all reasonable fees, expenses, charges and other costs that such director or officer incurred, provided that such person will return any such advance if it is ultimately determined that such person is not entitled to indemnification by us. Any claims for indemnification by our directors and officers may reduce our available funds to satisfy successful third-party claims against us and may reduce the amount of money available to us.

 

Item 7.

Exemption from Registration Claimed

Not applicable.

 

Item 8.

Exhibits

 

Exhibit

Number

  

Exhibit Description

   Incorporated by Reference      
  

Form

    

Date Filed

    

Number

   

Filed

Herewith

  4.1    Certificate of Incorporation of the Registrant      8-K        10/29/19         3.1    
  4.2    By-Laws of the Registrant      8-K        10/29/19         3.2    
  5.1    Opinion of Latham & Watkins LLP            X
23.1    Consent of Latham & Watkins LLP (included in Exhibit 5.1)            X
23.2    Consent of KPMG LLP            X
23.3    Consent of Marcum LLP            X
24.1    Powers of Attorney (incorporated by reference to the signature page hereto)            X
99.1 +    2019 Incentive Award Plan      8-K        10/29/19         10.2    
99.2 +    Form of Stock Option Agreement under the 2019 Incentive Award Plan      8-K        10/29/19        10.2 (c)   
99.3 +    Form of Restricted Stock Unit Agreement under the 2019 Incentive Award Plan      8-K        10/29/19        10.2 (b)   

 

+

Indicates management contract or compensatory plan.

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 of 1933;

 

  (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. 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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

  (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 registration statement is on Form S-8, and 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 the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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.

 

(b)

The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Los Angeles, State of California, on December 30, 2019.

 

Virgin Galactic Holdings, Inc.
By:  

  /s/ George Whitesides

    George Whitesides
    Chief Executive Officer and President

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints George Whitesides and Jonathan Campagna, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to file and sign any and all amendments, including post-effective amendments and any registration statement for the same offering that is to be effective under Rule 462(b) of the Securities Act, to this registration statement, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.

 

Signature    Title   Date

/s/ George Whitesides

George Whitesides

   Chief Executive Officer and President (Principal Executive Officer) and Director   December 30, 2019

/s/ Jonathan Campagna

Jonathan Campagna

   Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)   December 30, 2019

/s/ Chamath Palihapitiya

Chamath Palihapitiya

   Director   December 30, 2019

/s/ Wanda Austin

Wanda Austin

   Director   December 30, 2019

/s/ Adam Bain

Adam Bain

   Director   December 30, 2019

/s/ Craig Kreeger

Craig Kreeger

   Director   December 30, 2019

/s/ Evan Lovell

Evan Lovell

   Director   December 30, 2019

/s/ George Mattson

George Mattson

   Director   December 30, 2019

/s/ James Ryans

James Ryans

   Director   December 30, 2019

Exhibit 5.1

 

  650 Town Center Drive, 20th Floor
  Costa Mesa, California 92626-1925
 

Tel: +1.714.540.1235 Fax: +1.714.755.8290

www.lw.com

 

LOGO   FIRM /AFFILIATE OFFICES

 

  Beijing   Moscow  
  Boston   Munich  
  Brussels   New York  
  Century City   Orange County  
  Chicago   Paris  
December 30, 2019   Dubai   Riyadh  
  Düsseldorf   Rome  
  Frankfurt   San Diego  
  Hamburg   San Francisco  
  Hong Kong   Seoul  
  Houston   Shanghai  
Virgin Galactic Holdings, Inc.   London   Silicon Valley  
166 North Roadrunner Parkway, Suite 1C   Los Angeles   Singapore  
Las Cruces, New Mexico 88011   Madrid   Tokyo  
  Milan   Washington, D.C  

 

  Re:

Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special counsel to Virgin Galactic Holdings, Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company of 19,708,755 shares of common stock of the Company, par value $0.0001 per share (the “Shares”), issuable under the Company’s 2019 Incentive Award Plan (the “2019 Plan”).

The Shares are included in a 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 December 30, 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 or related prospectus, 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 (the “DGCL”) and we express no opinion with respect to any other laws.

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 purchasers and have been issued by the Company against payment therefor in the circumstances contemplated by the 2019 Plan, assuming in each case that the individual issuances, grants or awards under the 2019 Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the 2019 Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly

December 30, 2019

Page 2

 

LOGO

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 DGCL.

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 23.2

Consent of Independent Registered Public Accounting Firm

To the Board of Directors

Virgin Galactic Holdings, Inc.:

We consent to the use of our report dated August 7, 2019, with respect to the combined balance sheets of Virgin Galactic Business as of December 31, 2018 and 2017, the related combined statements of operations and comprehensive loss, equity, and cash flows for each of the years in the two-year period ending December 31, 2018, and the related notes incorporated by reference herein.

/s/ KPMG LLP

Los Angeles, California

December 30, 2019

Exhibit 23.3

INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM’S CONSENT

We consent to the incorporation by reference in this Registration Statement of Virgin Galactic Holdings, Inc. on Form S-8 of our report dated March 18, 2019, with respect to our audits of the financial statements of Social Capital Hedosophia Holdings, Corp. (now known as Virgin Galactic Holdings, Inc. as of December 31, 2018 and 2017 and for the year ended December 31, 2018 and for the period from May 5, 2017 (inception) through December 31, 2017, appearing in the Annual Report on Form 10-K of Virgin Galactic Holdings, Inc. for the year ended December 31, 2018. We were dismissed as auditors on November 11, 2019 and, accordingly, we have not performed any audit or review procedures with respect to any financial statements appearing in such Prospectus for the periods after the date of our dismissal.

/s/ Marcum LLP

Marcum LLP

New York, NY

December 30, 2019