As filed with the Securities and Exchange Commission on May 6, 2022.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIVINT SMART HOME, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 98-1380306 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
4931 North 300 West
Provo, Utah 84604
(Address, including zip code, of principal executive offices)
Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan
(Full title of the Plan)
Garner B. Meads, III
Chief Legal Officer
Vivint Smart Home, Inc.
4931 North 300 West
Provo, Utah 84604
(801) 377-9111
(Name and address and telephone number, including area code, of agent for service)
With copies of all notices, orders and communications to:
Joshua F. Bonnie
Jonathan R. Ozner
Simpson Thacher & Bartlett LLP
900 G Street, NW
Washington, D.C. 20001
(202) 636-5500
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 Exchange Act. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 15,655,064 shares of Class A Common Stock, par value $0.0001 per share (“Common Stock”) of Vivint Smart Home, Inc. (the “Company” or the “Registrant”) reserved for issuance under the Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan (the “2020 Omnibus Plan”). These additional shares of Common Stock are additional securities of the same class as other securities for which an original registration statement on Form S-8 with respect to the 2020 Omnibus Plan was filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on March 24, 2020 (File No. 333-237365) and an additional registration statement on Form S-8 with respect to the 2020 Omnibus Plan was filed by the Registrant with the Commission on March 1, 2021 (File No. 333-253740), and the Post-Effective Amendments on Form S-8 to the Registrant’s Registration Statement on Form S-4 with respect to the 2020 Omnibus Plan, were filed by the Registrant with the Commission on March 24, 2020 and April 20, 2020 (File No. 333-233911). These additional shares of Common Stock have become reserved for issuance as a result of the operation of the “evergreen” provision of the 2020 Omnibus Plan, which provides that the total number of shares subject to the 2020 Omnibus Plan will be increased on the first day of each fiscal year pursuant to a specified formula.
Pursuant to General Instruction E to Form S-8, the contents of such earlier registration statements, as amended by the post-effective amendments, where applicable, are incorporated by reference into this Registration Statement, except that the provisions contained in Part II of such earlier registration statements are modified as set forth in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed with the Commission by the Company pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereby incorporated by reference in this Registration Statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the Commission on March 1, 2022 (the “Annual Report”); |
| (b) | The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed with the Commission on May 4, 2022; |
| (c) | The Registrant’s Current Reports on Form 8-K filed with the Commission on February 17, 2022; March 25, 2022; April 15, 2022 and April 21, 2022 (Item 5.02 only); and |
| (d) | The description of shares of Common Stock contained in Exhibit 4.13 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the Commission on March 1, 2022, including any amendments or reports filed for the purpose of updating such description. |
All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered have been sold or which deregisters 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 the filing of such reports and documents (other than information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless expressly stated otherwise therein).
For the purpose 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 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 8. | Exhibits. |
The following exhibits are filed as part of this Registration Statement:
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 Provo, State of Utah on this sixth day of May, 2022.
| VIVINT SMART HOME, INC. | ||
| By: | /s/ Dale R. Gerard | |
| Name: Dale R. Gerard | ||
| Title: Chief Financial Officer | ||
POWER OF ATTORNEY
Each of the undersigned, whose signature appears below, hereby constitutes and appoints Dale R. Gerard, David Bywater and Garner B. Meads, III, and each of them, his true and lawful attorney-in-fact and agent, 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 sign any or all amendments to this registration statement and to file the same with all exhibits thereto and other documents in connection therewith, 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 necessary or appropriate to be done with respect to this registration statement or any amendments hereto in the premises, 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 any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities indicated below on May 6, 2022.
| /s/ David Bywater |
| DAVID BYWATER |
| Chief Executive Officer and Director |
| (Principal Executive Officer) |
| /s/ Dale R. Gerard |
| DALE R. GERARD |
| Chief Financial Officer |
| (Principal Financial Officer) |
| /s/ Patrick E. Kelliher |
| PATRICK E. KELLIHER |
| Chief Accounting Officer |
| (Principal Accounting Officer) |
| /s/ David F. D’Alessandro |
| DAVID F. D’ALESSANDRO |
| Director |
| /s/ Barbara J. Comstock |
| BARBARA COMSTOCK |
| Director |
| /s/ Paul S. Galant |
| PAUL S. GALANT |
| Director |
| /s/ Jay D. Pauley |
| JAY D. PAULEY |
| Director |
| /s/ Todd R. Pedersen |
| TODD R. PEDERSEN |
| Director |
| /s/ Michael J. Staub |
| MICHAEL J. STAUB |
| Director |
| /s/ Joseph S. Tibbetts, Jr. |
| JOSEPH S. TIBBETTS, JR. |
| Director |
| /s/ Peter F. Wallace |
| PETER F. WALLACE |
| Director |
Exhibit 5.1
| Simpson Thacher & Bartlett LLP |
| 425 LEXINGTON AVENUE |
| NEW YORK, NY 10017-3954
TELEPHONE: +1-212-455-2000 FACSIMILE: +1-212-455-2502 |
May 6, 2022
Vivint Smart Home, Inc.
4931 North 300 West
Provo, Utah 84604
Ladies and Gentlemen:
We have acted as counsel to Vivint Smart Home, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the issuance by the Company of an aggregate of up to 15,655,064 shares (the “Shares”) of Class A Common Stock, par value $0.0001 per share, of the Company that may be issued by the Company pursuant to the Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan (the “2020 Omnibus Plan”).
We have examined the Registration Statement, the Amended and Restated Certificate of Incorporation of the Company (as amended by the Certificate of Amendment), the Amended and Restated Bylaws of the Company and the 2020 Omnibus Plan, each of which has been filed with the Commission as an exhibit to the Registration Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials and of officers and representatives of the Company and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that upon issuance and delivery in accordance with the 2020 Omnibus Plan, the Shares will be validly issued, fully paid and nonassessable.
We do not express any opinion herein concerning any law other than the Delaware General Corporation Law.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement.
| Very truly yours,
|
| /s/ Simpson Thacher & Bartlett LLP |
| SIMPSON THACHER & BARTLETT LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the registration of an additional 15,655,064 shares of Class A Common Stock under the Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan of our reports dated March 1, 2022, with respect to the consolidated financial statements of Vivint Smart Home, Inc. and the effectiveness of internal control over financial reporting of Vivint Smart Home, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Salt Lake City, UT
May 6, 2022
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Vivint Smart Home, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type |
Security Class Title |
Fee Calculation Rule(2) |
Amount Registered(1) |
Proposed Maximum Offering Price Per Share(2) |
Maximum Aggregate Offering Price(2) |
Fee Rate |
Amount of Registration Fee | |||||||
|
Equity |
Class A Common Stock, par value $0.0001 per share | Other | 15,655,064 | $5.30 | $82,971,839.20 | $92.70 per $1,000,000 | $7,691.49 | |||||||
|
Total Offering Amounts |
— | $82,971,839.20 | — | $7,691.49 | ||||||||||
|
Total Fee Offsets |
— | — | — | — | ||||||||||
|
Net Fee Due |
— | — | — | $7,691.49 | ||||||||||
| (1) | Covers Class A Common Stock, par value $0.0001 per share (the “Common Stock”) of Vivint Smart Home, Inc. (the “Company”) issuable under the Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan (the “2020 Omnibus Plan”) and, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), any additional shares of Common Stock that may become issuable in respect of the securities identified in the table above under the 2020 Omnibus Plan by reason of any stock dividend, stock split, recapitalization, merger, consolidation, reorganization, or other similar transaction which results in an increase in the number of outstanding shares of Common Stock. |
| (2) | Pursuant to Rule 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share, the proposed maximum aggregate offering price and the amount of the registration fee have been computed on the basis of the average of the high and low prices per share of the Company’s Common Stock reported on the New York Stock Exchange on May 2, 2022. |