ViaSat, Inc.
As filed with the Securities and Exchange Commission on
April 3, 2007
Registration
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ViaSat, Inc.
(Exact name of registrant as
specified in its charter)
|
|
|
|
|
Delaware
|
|
3663
|
|
33-0174996
|
(State or other jurisdiction
of
incorporation or organization)
|
|
(Primary Standard Industrial
Classification Code Number)
|
|
(I.R.S. Employer
Identification Number)
|
6155 El Camino Real
Carlsbad, California
92009
(760) 476-2200
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
|
|
|
Agent for
Service:
|
|
Copies to:
|
|
|
|
Keven K. Lippert
ViaSat, Inc.
6155 El Camino Real
Carlsbad, California 92009
(760) 476-2200
|
|
Craig M. Garner
Latham & Watkins LLP
12636 High Bluff Drive, Suite 400
San Diego, California 92130
(858) 523-5400
|
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION OF REGISTRATION
FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
|
Proposed Maximum
|
|
|
Amount of
|
Title of Securities
|
|
|
to be
|
|
|
Aggregate
|
|
|
Registration
|
to be Registered
|
|
|
Registered
|
|
|
Offering Price(1)
|
|
|
Fee(2)
|
Debt Securities, Preferred Stock,
par value $0.0001 per share, Common Stock, par value
$0.0001 per share, Depositary Shares, and Warrants(3)
|
|
|
$200,000,000
|
|
|
$200,000,000
|
|
|
$6,140
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Estimated solely for purposes of
calculating the registration fee, which is calculated in
accordance with Rule 457(o) of the rules and regulations
under the Securities Act of 1933, as amended (the Securities
Act). Rule 457(o) permits the registration fee to be
calculated on the basis of the maximum offering price of all of
the securities listed and, therefore, the table does not specify
by each class information as to the amount to be registered, the
proposed maximum offering price per unit or the proposed maximum
aggregate offering price. Pursuant to Rule 429 under the
Securities Act, the prospectus included in this registration
statement also relates to (a) $46,000,000 of available
securities previously registered pursuant to registration
statement no.
333-69664
filed by ViaSat on
Form S-3,
for which a filing fee of $11,500 in respect of such securities
was paid at the time such registration statement was originally
filed and (b) $154,000,000 of available securities
previously registered pursuant to registration statement no.
333-116468
filed by ViaSat on
Form S-3,
for which a filing fee of $19,512 in respect of such securities
was paid at the time such registration statement was originally
filed.
|
|
(2)
|
|
Amount calculated pursuant to
Section 6(b) under the Securities Act.
|
|
(3)
|
|
This registration statement also
covers such indeterminate number of securities that may be
issued upon exchange for, or upon conversion of, as the case may
be, the securities registered hereunder.
|
Pursuant to Rule 429 under the Securities Act, the
prospectus included in this registration statement is a combined
prospectus and relates to registration statement no.
333-69664
previously filed by ViaSat on
Form S-3
and registration statement no.
333-116468
previously filed by ViaSat on
Form S-3.
This registration statement, which is a new registration
statement, also constitutes a post-effective amendment to
registration statement no.
333-69664
and registration statement no.
333-116468,
and such post-effective amendment shall hereafter become
effective concurrently with the effectiveness of this
registration statement in accordance with Section 8(c) of
the Securities Act.
ViaSat hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until
ViaSat shall file a further amendment that specifically states
that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act or until this registration statement shall become effective
on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
|
(SUBJECT TO COMPLETION, DATED
APRIL 3, 2007)
PROSPECTUS
VIASAT
$400,000,000
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
We may offer and sell from time to time in one or more classes
or series and in amounts, at prices and on the terms that we
will determine at the time of offering, with an aggregate
initial offering price of up to $400,000,000:
|
|
|
|
|
debt securities, which may consist of debentures, notes or other
types of debt;
|
|
|
|
shares of preferred stock;
|
|
|
|
shares of preferred stock represented by depositary shares;
|
|
|
|
shares of common stock; and
|
|
|
|
warrants to purchase debt securities, preferred stock or common
stock.
|
We will provide the specific terms of these securities in
supplements to this prospectus. You should read this prospectus
and any supplement carefully before you invest.
Our common stock is listed on the Nasdaq Global Market under the
symbol VSAT. On March 30, 2007, the last
reported sale price of our common stock was $32.97 per share.
You should consider the risks that we have described in
Risk Factors on page 2 before investing in our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
We will sell these securities directly to our stockholders or to
purchasers or through agents on our behalf or through
underwriters or dealers as designated from time to time. If any
agents or underwriters are involved in the sale of any of these
securities, the applicable prospectus supplement will provide
the names of the agents or underwriters and any applicable fees,
commissions or discounts.
The date of this prospectus
is ,
2007
TABLE OF
CONTENTS
Whenever we refer to ViaSat, we,
our or us in this prospectus, we mean
ViaSat, Inc. and its consolidated subsidiaries, unless the
context suggests otherwise. When we refer to you or
yours, we mean the holders of the applicable series
of securities.
i
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission (SEC) using a
shelf registration process. Under this shelf registration
process, we may sell any combination of the securities described
in this prospectus in one or more offerings up to a total dollar
amount of $400,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we
offer to sell securities, we will provide a prospectus
supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add,
update or change information contained in this prospectus. To
the extent that any statement that we make in a prospectus
supplement is inconsistent with statements made in this
prospectus, the statements made in this prospectus will be
deemed modified or superseded by those made in a prospectus
supplement. You should read both this prospectus and any
prospectus supplement together with additional information
described under the heading, Where You Can Find More
Information.
You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell these securities in any jurisdiction
where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus is accurate as of
the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and
prospects may have subsequently changed.
VIASAT
We are a leading provider of advanced wireless and satellite
communications equipment and services to the government and
commercial markets. We are organized principally in two
segments: government and commercial. Our government business
encompasses specialized products principally serving defense
customers and includes:
Tactical Data Links. Our Tactical Data Links
product line primarily consists of our multifunction information
distribution system (MIDS) product. The MIDS terminal operates
as part of the Link-16
line-of-sight
tactical radio system, which enables real time data networking
among ground and airborne military users providing an electronic
picture of the entire battlefield to each user in the network.
We are also currently in the development phase of a MIDS
terminal for the U.S. Department of Defenses (DoD)
JTRS airborne radio program, referred to as MIDS-JTRS. We are
one of only two current U.S. government certified providers
of MIDS production units.
Tactical Networking and Information
Assurance. Tactical Networking and Information
Assurance products include our information security and ViaSat
Data Controller (VDC) products. Our information security
products enable military and government communicators to secure
information up to Top Secret levels. Our VDC
products provide reliable military tactical communication
channels using innovative error correction technology.
Technology from some of these products are integrated into some
of our existing tactical radio products (such as MIDS and UHF
DAMA satellite products) as well as sold on a stand-alone basis.
Government Satellite Communication Systems. We
have a 15 year history of leadership in the UHF satellite
communication terminal market. This includes the design and
development of modems, terminals and test and training equipment
operating over the military UHF satellite band. These products
are used in manpack satellite communication
terminals as well as airborne, ship, shore and mobile
applications. We generally focus on opportunities for high-speed
satellite communications products which operate in higher
frequencies.
The commercial segment comprises two business product groups:
satellite networks and antenna systems. Our commercial business
comprises an
end-to-end
capability to provide customers with satellite communication
equipment solutions and includes:
Consumer Broadband. Our consumer products
include the development of equipment and technology across
multiple satellite standards, including the development of
DOCSIS®
(Data Over Cable Service Interface Specification)-based
terminals and gateways.
Mobile Broadband. Our mobile broadband
products include the design and development of airborne,
maritime and ground mobile terminals and systems. Existing
certified systems in the in-flight broadband market include
SKYLink for ARINC. We are also developing systems for the
maritime and ground mobile markets.
Enterprise VSAT. Our Enterprise VSAT (Very
Small Aperture Terminal) satellite communication products and
services comprises a wide range of terminals, hubs, and networks
control systems as well as network management services for
customers in North America and internationally.
Satellite Networking Systems Design and Technology
Development. We perform leading-edge research and
development for satellite communications systems and have
developed an extensive portfolio of technologies. Technologies
include satellite networking, beam forming modems, coding, voice
and video encoding, IP and ATM via satellite, satellite ground
terminals, onboard processing, advanced satellite design, and
antennas.
Integrated Circuit Design and Development. We
specialize in the design of integrated circuits, packaged
components, and modules for commercial, military and space
applications. Areas of expertise include high frequency
communication technology, MMIC semiconductor design, high-power
transceiver design, high levels of functional integration,
high-frequency packaging and design for low-cost manufacturing.
Antenna Systems. We provide antenna systems
for both commercial and defense communications. We have a
40-year legacy in the design, test, manufacture and installation
of antennas from three to 18 meters. Applications for these
antenna systems include large system gateways, VSAT or video
broadcast hubs, image retrieval by satellite, transportable
antennas, and telemetry, tracking and control.
We were incorporated in California in 1986 and reincorporated in
Delaware in 1996. Our principal executive offices are located at
6155 El Camino Real, Carlsbad, California 92009, and our
telephone number is
(760) 476-2200.
RISK
FACTORS
Investment in any securities offered pursuant to this
prospectus involves risks. You should carefully consider the
risk factors incorporated by reference to our most recent Annual
Report on
Form 10-K
and our subsequent Quarterly Reports on
Form 10-Q
and the other information contained in this prospectus, as
updated by our subsequent filings under the Securities Exchange
Act of 1934, as amended, or the Exchange Act, and the risk
factors and other information contained in the applicable
prospectus supplement before acquiring any of such securities.
The occurrence of any of these risks might cause you to lose all
or part of your investment in the offered securities. Please
also refer to the section below entitled Forward-Looking
Statements.
FORWARD-LOOKING
STATEMENTS
This prospectus contains and incorporates by reference
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or
the Securities Act, and Section 21E of the Exchange Act.
These forward-looking statements include, but are not limited
to, statements about our plans, objectives, expectations and
intentions and other statements contained in this prospectus
that are not historical facts. When used in this prospectus, the
words expects, anticipates,
intends, plans, believes,
seeks, estimates, could,
should, may, will and
similar expressions are generally intended to identify
forward-looking statements. These forward-looking statements are
subject to a number of risks, uncertainties and assumptions
about us, including, among other things:
|
|
|
|
|
the ability to successfully grow our commercial business, while
maintaining our significant government business;
|
|
|
|
the ability to successfully develop, introduce and sell new
satellite and other wireless communications products;
|
|
|
|
the ability to successfully develop technologies according to
anticipated schedules that meet performance expectations;
|
|
|
|
the ability to successfully integrate strategic acquisitions;
|
2
|
|
|
|
|
changes in product supply, pricing and customer demand;
|
|
|
|
changes in relationships with key suppliers; and
|
|
|
|
increased competition and other factors affecting the
telecommunications market generally.
|
The factors identified above are believed to be some, but not
all, of the important factors that could cause actual events and
results to be significantly different from those that may be
expressed or implied in any forward-looking statements. Any
forward-looking statements should also be considered in light of
the risk factors detailed in our Annual Report on
Form 10-K
and subsequent Quarterly Reports on
Form 10-Q,
as updated by our future filings. We undertake no obligation to
publicly update or revise any forward-looking statements,
whether as a result of new information, future events or
otherwise. In light of these risks and uncertainties, the
forward- looking events and circumstances discussed in this
prospectus may not occur and actual results could differ
materially from those anticipated or implied in the
forward-looking statements.
RATIO OF
EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges are as follows for the
periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Nine Months
|
|
|
|
March 31,
|
|
|
April 2,
|
|
|
April 1,
|
|
|
March 31,
|
|
|
Ended December 29,
|
|
|
|
2002
|
|
|
2003
|
|
|
2004
|
|
|
2005
|
|
|
2006
|
|
|
2006
|
|
|
Ratio of earnings to fixed charges
|
|
|
|
*
|
|
|
**
|
|
|
|
7.59
|
|
|
|
9.89
|
|
|
|
11.41
|
|
|
|
13.39
|
|
|
|
|
* |
|
There was a deficiency of earnings available to cover fixed
charges for the fiscal year ended March 31, 2002.
Additional earnings of $615,000 would have achieved a ratio of
1:1. |
|
** |
|
There was a deficiency of earnings available to cover fixed
charges for the fiscal year ended March 31, 2003.
Additional earnings of $20,980,000 would have achieved a ratio
of 1:1. |
Fixed charges consist of interest expense and estimated interest
included in rental expense.
For the periods indicated above, we had no outstanding shares of
preferred stock with required dividend payments. Therefore, the
ratios of earnings to fixed charges and preferred stock
dividends are identical to the ratios presented in the table
above.
USE OF
PROCEEDS
Unless otherwise indicated in the prospectus supplement, we
intend to use the net proceeds from the sale of the securities
under this prospectus for general corporate purposes, including
acquisitions, capital expenditures, working capital and
repayment or refinancing of our debts. When a particular series
of securities is offered, the prospectus supplement relating
thereto will set forth our intended use for the net proceeds we
receive from the sale of the securities. Pending the application
of the net proceeds, we expect to invest the proceeds in
short-term, interest-bearing instruments or other
investment-grade securities.
DESCRIPTION
OF DEBT SECURITIES
This prospectus describes the general terms and provisions of
our debt securities. When we offer to sell a particular series
of debt securities, we will describe the specific terms of the
series in a supplement to this prospectus. We will also indicate
in the supplement whether the general terms and provisions
described in this prospectus apply to a particular series of
debt securities.
We may offer under this prospectus up to $400,000,000 in
aggregate principal amount of debt securities, or if debt
securities are issued at a discount, or in a foreign currency or
composite currency, such principal amount as may be sold for an
initial public offering price of up to $400,000,000. Unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and will
rank equally with all of our other unsecured and unsubordinated
indebtedness.
3
The debt securities will be issued under an indenture between us
and a trustee. We have summarized select portions of the
indenture below. The summary is not complete. The form of the
indenture has been incorporated by reference as an exhibit to
the registration statement and you should read the indenture for
provisions that may be important to you. Capitalized terms used
in the summary have the meaning specified in the indenture.
General
The terms of each series of debt securities will be established
by or pursuant to a resolution of our Board of Directors and set
forth or determined in the manner provided in an officers
certificate or by a supplemental indenture. The particular terms
of each series of debt securities will be described in a
prospectus supplement relating to such series, including any
pricing supplement.
We can issue an unlimited amount of debt securities under the
indenture that may be in one or more series with the same or
various maturities, at par, at a premium, or at a discount. We
will set forth in a prospectus supplement, including any pricing
supplement, relating to any series of debt securities being
offered, the aggregate principal amount and the following terms
of the debt securities:
|
|
|
|
|
the title of the debt securities;
|
|
|
|
the price or prices (expressed as a percentage of the principal
amount) at which we will sell the debt securities;
|
|
|
|
any limit on the aggregate principal amount of the debt
securities;
|
|
|
|
the date or dates on which we will pay the principal on the debt
securities;
|
|
|
|
the rate or rates (which may be fixed or variable) per annum or
the method used to determine the rate or rates (including any
commodity, commodity index, stock exchange index or financial
index) at which the debt securities will bear interest, the date
or dates from which interest will accrue, the date or dates on
which interest will commence and be payable and any regular
record date for the interest payable on any interest payment
date;
|
|
|
|
the place or places where principal of, premium and interest on
the debt securities will be payable;
|
|
|
|
the terms and conditions upon which we may redeem the debt
securities;
|
|
|
|
any obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the
option of a holder of debt securities;
|
|
|
|
the dates on which and the price or prices at which we will
repurchase debt securities at the option of the holders of debt
securities and other detailed terms and provisions of these
repurchase obligations;
|
|
|
|
the denominations in which the debt securities will be issued,
if other than denominations of $1,000 and any integral multiple
thereof;
|
|
|
|
whether the debt securities will be issued in the form of
certificated debt securities or global debt securities;
|
|
|
|
the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other
than the principal amount;
|
|
|
|
the currency of denomination of the debt securities;
|
|
|
|
the designation of the currency, currencies or currency units in
which payment of principal of, premium and interest on the debt
securities will be made;
|
|
|
|
if payments of principal of, premium or interest on the debt
securities will be made in one or more currencies or currency
units other than that or those in which the debt securities are
denominated, the manner in which the exchange rate with respect
to these payments will be determined;
|
|
|
|
the manner in which the amounts of payment of principal of,
premium or interest on the debt securities will be determined,
if these amounts may be determined by reference to an index
based on a currency or
|
4
|
|
|
|
|
currencies other than that in which the debt securities are
denominated or designated to be payable or by reference to a
commodity, commodity index, stock exchange index or financial
index;
|
|
|
|
|
|
any provisions relating to any security provided for the debt
securities;
|
|
|
|
any addition to or change in the events of default described in
this prospectus or in the indenture with respect to the debt
securities and any change in the acceleration provisions
described in this prospectus or in the indenture with respect to
the debt securities;
|
|
|
|
any addition to or change in the covenants described in this
prospectus or in the indenture with respect to the debt
securities;
|
|
|
|
any other terms of the debt securities, which may modify or
delete any provision of the indenture as it applies to that
series; and
|
|
|
|
any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt
securities.
|
In addition, the indenture does not limit our ability to issue
convertible or subordinated debt securities. Any conversion or
subordination provisions of a particular series of debt
securities will be set forth in the officers certificate
or supplemental indenture related to that series of debt
securities and will be described in the relevant prospectus
supplement. Such terms may include provisions for conversion,
either mandatory, at the option of the holder or at our option,
in which case the number of shares of common stock or other
securities to be received by the holders of debt securities
would be calculated as of a time and in the manner stated in the
prospectus supplement.
We may issue debt securities that provide for an amount less
than their stated principal amount to be due and payable upon
declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on
the federal income tax considerations and other special
considerations applicable to any of these debt securities in the
applicable prospectus supplement.
If we denominate the purchase price of any of the debt
securities in a foreign currency or currencies or a foreign
currency unit or units, or if the principal of and any premium
and interest on any series of debt securities is payable in a
foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions,
elections, general tax considerations, specific terms and other
information with respect to that issue of debt securities and
such foreign currency or currencies or foreign currency unit or
units in the applicable prospectus supplement.
Transfer
and Exchange
Each debt security will be represented by either one or more
global securities registered in the name of The Depository Trust
Company, as Depositary, or a nominee (we will refer to any debt
security represented by a global debt security as a
book-entry debt security), or a certificate issued
in definitive registered form (we will refer to any debt
security represented by a certificated security as a
certificated debt security) as set forth in the
applicable prospectus supplement. Except as set forth under the
heading Global Debt Securities and Book-Entry System
below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities. You may transfer
or exchange certificated debt securities at any office we
maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or
exchange of certificated debt securities, but we may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may effect the transfer of certificated debt securities and
the right to receive the principal of, and premium and interest
on, certificated debt securities only by surrendering the
certificate representing those certificated debt securities and
either reissuance by us or the trustee of the certificate to the
new holder or the issuance by us or the trustee of a new
certificate to the new holder.
Global Debt Securities and Book-Entry
System. Each global debt security representing
book-entry debt securities will be deposited with, or on behalf
of, the depositary, and registered in the name of the depositary
or a nominee of the depositary.
5
We will require the depositary to agree to follow the following
procedures with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities
will be limited to persons who have accounts with the depositary
for the related global debt security, which we refer to as
participants, or persons who may hold interests through
participants. Upon the issuance of a global debt security, the
depositary will credit, on its book-entry registration and
transfer system, the participants accounts with the
respective principal amounts of the book-entry debt securities
represented by such global debt security beneficially owned by
such participants. The accounts to be credited will be
designated by any dealers, underwriters or agents participating
in the distribution of the book-entry debt securities. Ownership
of book-entry debt securities will be shown on, and the transfer
of such ownership interests will be effected only through,
records maintained by the depositary for the related global debt
security (with respect to interests of participants) and on the
records of participants (with respect to interests of persons
holding through participants). The laws of some states may
require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may
impair the ability to own, transfer or pledge beneficial
interests in book-entry debt securities.
So long as the depositary for a global debt security, or its
nominee, is the registered owner of that global debt security,
the depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the book-entry debt
securities represented by such global debt security for all
purposes under the indenture. Except as described below,
beneficial owners of book-entry debt securities will not be
entitled to have securities registered in their names, will not
receive or be entitled to receive physical delivery of a
certificate in definitive form representing securities and will
not be considered the owners or holders of those securities
under the indenture. Accordingly, each person beneficially
owning book-entry debt securities must rely on the procedures of
the depositary for the related global debt security and, if such
person is not a participant, on the procedures of the
participant through which such person owns its interest, to
exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice,
the depositary will authorize the persons on whose behalf it
holds a global debt security to exercise certain rights of
holders of debt securities, and the indenture provides that we,
the trustee and our respective agents will treat as the holder
of a debt security the persons specified in a written statement
of the depositary with respect to that global debt security for
purposes of obtaining any consents or directions required to be
given by holders of the debt securities pursuant to the
indenture.
We will make payments of principal of, and premium and interest
on, book-entry debt securities to the depositary or its nominee,
as the case may be, as the registered holder of the related
global debt security. ViaSat, the trustee and any other agent of
ours or agent of the trustee will not have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a global
debt security or for maintaining, supervising or reviewing any
records relating to beneficial ownership interests.
We expect that the depositary, upon receipt of any payment of
principal of, and premium or interest on, a global debt
security, will immediately credit participants accounts
with payments in amounts proportionate to the respective amounts
of book-entry debt securities held by each participant as shown
on the records of such depositary. We also expect that payments
by participants to owners of beneficial interests in book-entry
debt securities held through those participants will be governed
by standing customer instructions and customary practices, as is
now the case with the securities held for the accounts of
customers in bearer form or registered in street
name, and will be the responsibility of those participants.
We will issue certificated debt securities in exchange for each
global debt security if the depositary is at any time unwilling
or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act and a successor
depositary registered as a clearing agency under the Exchange
Act is not appointed by us within 90 days. In addition, we
may at any time and in our sole discretion determine not to have
the book-entry debt securities of any series represented by one
or more global debt securities and, in that event, will issue
certificated debt securities in exchange for the global debt
securities of that series. Global debt securities will also be
exchangeable by the holders for certificated debt securities if
an event of default with respect to the book-entry debt
securities represented by those global debt securities has
occurred and is continuing. Any certificated debt securities
issued in exchange for a global debt security will be registered
in such name or names as the depositary shall instruct
6
the trustee. We expect that such instructions will be based upon
directions received by the depositary from participants with
respect to ownership of book-entry debt securities relating to
such global debt security.
We have obtained the foregoing information concerning the
depositary and the depositarys book-entry system from
sources we believe to be reliable, but we take no responsibility
for the accuracy of this information.
No
Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions
that may afford holders of the debt securities protection in the
event we have a change in control or in the event of a highly
leveraged transaction (whether or not such transaction results
in a change in control) that could adversely affect holders of
debt securities.
Covenants
We will set forth in the applicable prospectus supplement any
restrictive covenants applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of our properties and
assets to, any person, which we refer to as a successor person,
unless:
|
|
|
|
|
we are the surviving corporation or the successor person (if
other than ViaSat) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction
and expressly assumes our obligations on the debt securities and
under the indenture;
|
|
|
|
immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time, or
both, would become an event of default, shall have occurred and
be continuing under the indenture; and
|
|
|
|
certain other conditions are met.
|
Events of
Default
Event of default means, with respect to any series of debt
securities, any of the following:
|
|
|
|
|
default in the payment of any interest upon any debt security of
that series when it becomes due and payable, and continuance of
that default for a period of 30 days (unless the entire
amount of the payment is deposited by us with the trustee or
with a paying agent prior to the expiration of the
30-day
period);
|
|
|
|
default in the payment of principal of or premium on any debt
security of that series when due and payable;
|
|
|
|
default in the deposit of any sinking fund payment, when and as
due in respect of any debt security of that series;
|
|
|
|
default in the performance or breach of any other covenant or
warranty by us in the indenture (other than a covenant or
warranty that has been included in the indenture solely for the
benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days
after we receive written notice from the trustee or we and the
trustee receive written notice from the holders of not less than
a majority in principal amount of the outstanding debt
securities of that series as provided in the indenture;
|
|
|
|
certain events of bankruptcy, insolvency or reorganization of
our company; and
|
|
|
|
any other event of default provided with respect to debt
securities of that series that is described in the applicable
prospectus supplement accompanying this prospectus.
|
No event of default with respect to a particular series of debt
securities (except as to certain events of bankruptcy,
insolvency or reorganization) necessarily constitutes an event
of default with respect to any other series of debt securities.
The occurrence of an event of default may constitute an event of
default under our bank credit
7
agreements in existence from time to time. In addition, the
occurrence of certain events of default or an acceleration under
the indenture may constitute an event of default under certain
of our other indebtedness outstanding from time to time.
If an event of default with respect to debt securities of any
series at the time outstanding occurs and is continuing, then
the trustee or the holders of not less than a majority in
principal amount of the outstanding debt securities of that
series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately
the principal (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may
be specified in the terms of that series) of, and accrued and
unpaid interest, if any, on all debt securities of that series.
In the case of an event of default resulting from certain events
of bankruptcy, insolvency or reorganization, the principal (or
such specified amount) of and accrued and unpaid interest, if
any, on all outstanding debt securities will become and be
immediately due and payable without any declaration or other act
on the part of the trustee or any holder of outstanding debt
securities. At any time after a declaration of acceleration with
respect to debt securities of any series has been made, but
before a judgment or decree for payment of the money due has
been obtained by the trustee, the holders of a majority in
principal amount of the outstanding debt securities of that
series may rescind and annul the acceleration if all events of
default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that
series, have been cured or waived as provided in the indenture.
We refer you to the prospectus supplement relating to any series
of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of
the principal amount of such discount securities upon the
occurrence of an event of default.
The indenture provides that the trustee will be under no
obligation to exercise any of its rights or powers under the
indenture at the request of any holder of outstanding debt
securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain
rights of the trustee, the holders of a majority in principal
amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right
to institute any proceeding, judicial or otherwise, with respect
to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
|
|
|
|
|
that holder has previously given to the trustee written notice
of a continuing event of default with respect to debt securities
of that series; and
|
|
|
|
the holders of at least a majority in principal amount of the
outstanding debt securities of that series have made written
request, and offered reasonable indemnity, to the trustee to
institute the proceeding as trustee, and the trustee has not
received from the holders of a majority in principal amount of
the outstanding debt securities of that series a direction
inconsistent with that request and has failed to institute the
proceeding within 60 days.
|
Notwithstanding the foregoing, the holder of any debt security
will have an absolute and unconditional right to receive payment
of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
The indenture requires us, within 120 days after the end of
our fiscal year, to furnish to the trustee a statement as to
compliance with the indenture. The indenture provides that the
trustee may withhold notice to the holders of debt securities of
any series of any default or event of default (except in payment
on any debt securities of that series) with respect to debt
securities of that series if it in good faith determines that
withholding notice is in the interest of the holders of those
debt securities.
Modification
and Waiver
We may modify and amend the indenture with the consent of the
holders of at least a majority in principal amount of the
outstanding debt securities of each series affected by the
modifications or amendments. We may not
8
make any modification or amendment without the consent of the
holders of each affected debt security then outstanding if that
amendment will:
|
|
|
|
|
reduce the amount of debt securities whose holders must consent
to an amendment or waiver;
|
|
|
|
reduce the rate of or extend the time for payment of interest
(including default interest) on any debt security;
|
|
|
|
reduce the principal of or premium on or change the fixed
maturity of any debt security or reduce the amount of, or
postpone the date fixed for, the payment of any sinking fund or
analogous obligation with respect to any series of debt
securities;
|
|
|
|
reduce the principal amount of discount securities payable upon
acceleration of maturity;
|
|
|
|
waive a default in the payment of the principal of, premium or
interest on any debt security (except a rescission of
acceleration of the debt securities of any series by the holders
of at least a majority in aggregate principal amount of the then
outstanding debt securities of that series and a waiver of the
payment default that resulted from such acceleration);
|
|
|
|
make the principal of or premium or interest on any debt
security payable in currency other than that stated in the debt
security;
|
|
|
|
make any change to certain provisions of the indenture relating
to, among other things, the right of holders of debt securities
to receive payment of the principal of, premium and interest on
those debt securities and to institute suit for the enforcement
of any such payment and to waivers or amendments; or
|
|
|
|
waive a redemption payment with respect to any debt security.
|
Except for certain specified provisions, the holders of at least
a majority in principal amount of the outstanding debt
securities of any series may on behalf of the holders of all
debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any
series may on behalf of the holders of all the debt securities
of such series waive any past default under the indenture with
respect to that series and its consequences, except a default in
the payment of the principal of, or premium or any interest on,
any debt security of that series or in respect of a covenant or
provision, which cannot be modified or amended without the
consent of the holder of each outstanding debt security of the
series affected; provided, however , that the holders of
a majority in principal amount of the outstanding debt
securities of any series may rescind an acceleration and its
consequences, including any related payment default that
resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture provides that,
unless otherwise provided by the terms of the applicable series
of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series
(except for certain obligations to register the transfer or
exchange of debt securities of such series, to replace stolen,
lost or mutilated debt securities of such series, and to
maintain paying agencies and certain provisions relating to the
treatment of funds held by paying agents). We will be so
discharged upon the deposit with the trustee, in trust, of money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments
in respect of the debt securities of that series on the stated
maturity of those payments in accordance with the terms of the
indenture and those debt securities.
This discharge may occur only if, among other things, we have
delivered to the trustee an opinion of counsel stating that we
have received from, or there has been published by, the United
States Internal Revenue Service a ruling or, since the date of
execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States federal income
tax on the same
9
amounts and in the same manner and at the same times as would
have been the case if the deposit, defeasance and discharge had
not occurred.
Defeasance of Certain Covenants. The indenture
provides that, unless otherwise provided by the terms of the
applicable series of debt securities, upon compliance with
certain conditions:
|
|
|
|
|
we may omit to comply with the covenant described under the
heading Consolidation, Merger and Sale of Assets and
certain other covenants set forth in the indenture, as well as
any additional covenants that may be set forth in the applicable
prospectus supplement; and
|
|
|
|
any omission to comply with those covenants will not constitute
a default or an event of default with respect to the debt
securities of that series, or covenant defeasance.
|
The conditions include:
|
|
|
|
|
depositing with the trustee money
and/or
U.S. government obligations or, in the case of debt
securities denominated in a single currency other than
U.S. dollars, foreign government obligations, that, through
the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public
accountants to pay and discharge each installment of principal
of, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the
stated maturity of those payments in accordance with the terms
of the indenture and those debt securities; and
|
|
|
|
delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant
defeasance and will be subject to United States federal income
tax on the same amounts and in the same manner and at the same
times as would have been the case if the deposit and related
covenant defeasance had not occurred.
|
Covenant Defeasance and Events of Default. In
the event we exercise our option to effect covenant defeasance
with respect to any series of debt securities and the debt
securities of that series are declared due and payable because
of the occurrence of any event of default, the amount of money
and/or
U.S. government obligations or foreign government
obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the
time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities of that series at the time of
the acceleration resulting from the event of default. In such a
case, we would remain liable for those payments.
Foreign Government Obligations means, with
respect to debt securities of any series that are denominated in
a currency other than U.S. dollars:
|
|
|
|
|
direct obligations of the government that issued or caused to be
issued such currency for the payment of which obligations its
full faith and credit is pledged which are not callable or
redeemable at the option of the issuer thereof; or
|
|
|
|
obligations of a person controlled or supervised by or acting as
an agency or instrumentality of that government the timely
payment of which is unconditionally guaranteed as a full faith
and credit obligation by that government which are not callable
or redeemable at the option of the issuer thereof.
|
Governing
Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the internal laws of the State of
New York.
DESCRIPTION
OF CAPITAL STOCK
General
This prospectus describes the general terms of our capital
stock. For a more detailed description of these securities, you
should read the applicable provisions of Delaware law and our
certificate of incorporation and
10
bylaws. When we offer to sell a particular series of these
securities, we will describe the specific terms of the series in
a supplement to this prospectus. Accordingly, for a description
of the terms of any series of securities, you must refer to both
the prospectus supplement relating to that series and the
description of the securities described in this prospectus. To
the extent the information contained in the prospectus
supplement differs from this summary description, you should
rely on the information in the prospectus supplement.
Under our certificate of incorporation, the total number of
shares of all classes of stock that we have authority to issue
is 105,000,000, consisting of 5,000,000 shares of preferred
stock, par value $.0001 per share, and
100,000,000 shares of common stock, par value
$.0001 per share.
Common
Stock
As of March 30, 2007, we had 29,731,097 shares of
common stock outstanding. The holders of our common stock are
entitled to one vote for each share on all matters voted on by
stockholders. The holders of our common stock do not have
cumulative voting rights, which means that holders of more than
one-half of the shares voting for the election of directors can
elect all of the directors then being elected. Subject to the
preferences of any of our outstanding preferred stock, the
holders of our common stock are entitled to a proportional
distribution of any dividends that may be declared by the board
of directors. In the event of a liquidation or dissolution of
ViaSat, the holders of our common stock are entitled to share
equally in all assets remaining after payment of liabilities and
any payments due to holders of any outstanding shares of our
preferred stock. The outstanding shares of our common stock are,
and the shares offered by this prospectus, when issued, will be
fully paid and nonassessable. The rights, preferences and
privileges of holders of our common stock are subject to, and
may be adversely affected by, the rights of the holders of
shares of any of our outstanding preferred stock.
Preferred
Stock
We currently have no outstanding shares of preferred stock.
Under our certificate of incorporation, our board of directors
is authorized to issue shares of our preferred stock from time
to time, in one or more classes or series, without stockholder
approval. Prior to the issuance of shares of each series, the
board of directors is required by the General Corporation Law of
the State of Delaware, known as the DGCL, and our certificate of
incorporation to adopt resolutions and file a certificate of
designation with the Secretary of State of the State of
Delaware. The certificate of designation fixes for each class or
series the designations, powers, preferences, rights,
qualifications, limitations and restrictions, including the
following:
|
|
|
|
|
the number of shares constituting each class or series;
|
|
|
|
voting rights;
|
|
|
|
rights and terms of redemption, including sinking fund
provisions;
|
|
|
|
dividend rights and rates;
|
|
|
|
dissolution;
|
|
|
|
terms concerning the distribution of assets;
|
|
|
|
conversion or exchange terms;
|
|
|
|
redemption prices; and
|
|
|
|
liquidation preferences.
|
All shares of preferred stock offered by this prospectus will,
when issued, be fully paid and nonassessable and will not have
any preemptive or similar rights. Our board of directors could
authorize the issuance of additional shares of preferred stock
with terms and conditions that could have the effect of
discouraging a takeover or other transaction that might involve
a premium price for holders of the shares or that holders might
believe to be in their best interests.
We will describe in a prospectus supplement relating to the
class or series of preferred stock being offered the following
terms:
|
|
|
|
|
the title and stated value of the preferred stock;
|
11
|
|
|
|
|
the number of shares of the preferred stock offered, the
liquidation preference per share and the offering price of the
preferred stock;
|
|
|
|
the dividend rate(s), period(s) or payment date(s) or method(s)
of calculation applicable to the preferred stock;
|
|
|
|
whether dividends are cumulative or non-cumulative and, if
cumulative, the date from which dividends on the preferred stock
will accumulate;
|
|
|
|
the procedures for any auction and remarketing, if any, for the
preferred stock;
|
|
|
|
the provisions for a sinking fund, if any, for the preferred
stock;
|
|
|
|
the provision for redemption, if applicable, of the preferred
stock;
|
|
|
|
any listing of the preferred stock on any securities exchange;
|
|
|
|
the terms and conditions, if applicable, upon which the
preferred stock will be convertible into common stock, including
the conversion price or manner of calculation and conversion
period;
|
|
|
|
voting rights, if any, of the preferred stock;
|
|
|
|
whether interests in the preferred stock will be represented by
depositary shares;
|
|
|
|
a discussion of any material or special United States federal
income tax considerations applicable to the preferred stock;
|
|
|
|
the relative ranking and preferences of the preferred stock as
to dividend rights and rights upon the liquidation, dissolution
or winding up of our affairs;
|
|
|
|
any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the class or series
of preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of our affairs; and
|
|
|
|
any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
|
Unless we specify otherwise in the applicable prospectus
supplement, the preferred stock will rank, relating to dividends
and upon our liquidation, dissolution or winding up:
|
|
|
|
|
senior to all classes or series of our common stock and to all
of our equity securities ranking junior to the preferred stock;
|
|
|
|
on a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity
with the preferred stock; and
|
|
|
|
junior to all of our equity securities the terms of which
specifically provide that the equity securities rank senior to
the preferred stock.
|
The term equity securities does not include convertible debt
securities.
Anti-Takeover
Provisions
As a corporation organized under the laws of the State of
Delaware, we are subject to Section 203 of the DGCL, which
restricts our ability to enter into business combinations with
an interested stockholder or a stockholder owning 15% or more of
our outstanding voting stock, or that stockholders
affiliates or associates, for a period of three years. These
restrictions do not apply if:
|
|
|
|
|
prior to becoming an interested stockholder, our board of
directors approves either the business combination or the
transaction in which the stockholder becomes an interested
stockholder;
|
|
|
|
upon consummation of the transaction in which the stockholder
becomes an interested stockholder, the interested stockholder
owns at least 85% of our voting stock outstanding at the time
the transaction commenced, subject to exceptions; or
|
12
|
|
|
|
|
on or after the date a stockholder becomes an interested
stockholder, the business combination is both approved by our
board of directors and authorized at an annual or special
meeting of our stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock not owned by the
interested stockholder.
|
Some provisions of ViaSats certificate of incorporation
and bylaws could also have anti-takeover effects. These
provisions:
|
|
|
|
|
permit the board of directors to increase its own size and fill
the resulting vacancies;
|
|
|
|
provide for a board comprised of three classes of directors with
each class serving a staggered three-year term;
|
|
|
|
authorize the issuance of preferred stock in one or more
series; and
|
|
|
|
prohibit stockholder action by written consent.
|
These provisions are intended to enhance the likelihood of
continuity and stability in the composition of the policies
formulated by the board of directors. In addition, these
provisions are intended to ensure that the board of directors
will have sufficient time to act in what it believes to be in
the best interests of ViaSat and its stockholders. These
provisions also are designed to reduce our vulnerability to an
unsolicited proposal for a takeover of ViaSat that does not
contemplate the acquisition of all of our outstanding shares or
an unsolicited proposal for the restructuring or sale of all or
part of ViaSat. The provisions are also intended to discourage
some tactics that may be used in proxy fights.
Classified
Board of Directors
The certificate of incorporation provides for the board of
directors to be divided into three classes of directors, with
each class as nearly equal in number as possible, serving
staggered three-year terms. As a result, approximately one-third
of the board of directors will be elected each year. The
classified board provision will help to assure the continuity
and stability of the board of directors and the business
strategies and policies of ViaSat as determined by the board of
directors. The classified board provision could have the effect
of discouraging a third party from making a tender offer or
attempting to obtain control of ViaSat. In addition, the
classified board provision could delay stockholders who do not
agree with the policies of the board of directors from removing
a majority of the board of directors for two years.
No
Stockholder Action by Written Consent; Special
Meetings
The certificate of incorporation provides that stockholder
action can only be taken at an annual or special meeting of
stockholders and prohibits stockholder action by written consent
in lieu of a meeting.
The certificate of incorporation also provides that special
meetings of stockholders may be called only by the board of
directors, its chairman, the president or the secretary of
ViaSat. Stockholders are not permitted to call a special meeting
of stockholders or to require that the board of directors call a
special meeting.
Number of
Directors; Removal; Filling Vacancies
The certificate of incorporation provides that the board of
directors will consist of between four and eleven members, the
exact number to be fixed by resolution adopted by affirmative
vote of a majority of the board of directors. The board of
directors currently consists of seven directors. Further, the
certificate of incorporation authorizes the board of directors
to fill newly created directorships. Accordingly, this provision
could prevent a stockholder from obtaining majority
representation on the board of directors by permitting the board
of directors to enlarge the size of the board and fill the new
directorships with its own nominees. A director so elected by
the board of directors holds office until the next election of
the class for which the director has been chosen and until his
or her successor is elected and qualified. The certificate of
incorporation also provides that directors may be removed only
for cause and only by the affirmative vote of holders of a
majority of the total voting power of all outstanding
securities. The effect of these provisions is to preclude a
stockholder from removing incumbent directors without cause and
simultaneously gaining control of the board of directors by
filling the vacancies created by the removal with its own
nominees.
13
Transfer
Agent and Registrar
The Transfer Agent and Registrar for our common stock is
Computershare Investor Services LLC.
DESCRIPTION
OF DEPOSITARY SHARES
General
We may issue depositary shares, each of which will represent a
fractional interest of a share of a particular series of
preferred stock, as specified in the applicable prospectus
supplement. We will deposit with a depositary, referred to as
the preferred stock depositary, shares of preferred stock of
each series represented by depositary shares. We will enter into
a deposit agreement with the preferred stock depositary and
holders from time to time of the depositary receipts issued by
the preferred stock depositary which evidence the depositary
shares. Subject to the terms of the deposit agreement, each
owner of a depositary receipt will be entitled, in proportion to
the holders fractional interest in the preferred stock, to
all the rights and preferences of the series of the preferred
stock represented by the depositary shares, including dividend,
voting, conversion, redemption and liquidation rights.
Immediately after we issue and deliver the preferred stock to a
preferred stock depositary, we will cause the preferred stock
depositary to issue the depositary receipts on our behalf. You
may obtain copies of the applicable form of deposit agreement
and depositary receipt from us upon request. The statements made
in this section relating to the deposit agreement and the
depositary receipts are summaries only. These summaries are not
complete and we may modify any of the terms of the depositary
shares described in this prospectus in a prospectus supplement.
To the extent the information contained in the prospectus
supplement differs from this summary description, you should
rely on the information in the prospectus supplement. For more
detail, we refer you to the deposit agreement, which we will
file as an exhibit to, or incorporate by reference in, the
registration statement.
Dividends
and Other Distributions
The preferred stock depositary will distribute all cash
dividends or other cash distributions received relating to the
preferred stock to the record holders of depositary receipts in
proportion to the number of the depositary receipts owned by the
holders, subject to the obligations of holders to file proofs,
certificates and other information and to pay certain charges
and expenses to the preferred stock depositary.
In the event of a distribution other than in cash, the preferred
stock depositary will distribute property received by it to the
record holders of depositary receipts in proportion to the
number of the depositary receipts owned by the holders, unless
the preferred stock depositary determines that it is not
feasible to make the distribution, in which case the preferred
stock depositary may, with our approval, sell the property and
distribute the net proceeds from the sale to the holders.
No distribution will be made relating to any depositary share
that represents any preferred stock converted into other
securities.
Withdrawal
of Stock
Assuming we have not previously called for redemption or
converted into other securities the related depositary shares,
upon surrender of the depositary receipts at the corporate trust
office of the preferred stock depositary, the holders will be
entitled to delivery at that office of the number of whole or
fractional shares of the preferred stock and any money or other
property represented by the depositary shares. Holders of
depositary receipts will be entitled to receive shares of the
related preferred stock as specified in the applicable
prospectus supplement, but holders of the shares of preferred
stock will no longer be entitled to receive depositary shares.
Redemption
of Depositary Shares
Whenever we redeem shares of preferred stock held by the
preferred stock depositary, the preferred stock depositary will
concurrently redeem the number of depositary shares representing
shares of the preferred stock so redeemed, provided we have paid
the applicable redemption price for the preferred stock to be
redeemed plus an
14
amount equal to any accrued and unpaid dividends to the date
fixed for redemption. The redemption price per depositary share
will be equal to the corresponding proportion of the redemption
price and any other amounts per share payable relating to the
preferred stock. If fewer than all the depositary shares are to
be redeemed, the depositary shares to be redeemed will be
selected pro rata or by any other equitable method determined by
us.
From and after the date fixed for redemption:
|
|
|
|
|
all dividends relating to the shares of preferred stock called
for redemption will cease to accrue;
|
|
|
|
the depositary shares called for redemption will no longer be
deemed to be outstanding; and
|
|
|
|
all rights of the holders of the depositary receipts evidencing
the depositary shares called for redemption will cease, except
the right to receive any moneys payable upon the redemption and
any money or other property to which the holders of the
depositary receipts were entitled upon redemption and surrender
to the preferred stock depositary.
|
Any funds we deposit with the preferred stock depositary for
redemption of depositary shares that the holders fail to redeem
will be returned to us after a period of two years from the date
the funds are deposited.
Voting of
the Preferred Stock
Upon receipt of notice of any meeting at which the holders of
the preferred stock are entitled to vote, the preferred stock
depositary will mail the information contained in the notice of
meeting to the record holders of the depositary receipts. Each
record holder of these depositary receipts on the record date,
which will be the same date as the record date for the preferred
stock, will be entitled to instruct the preferred stock
depositary as to the exercise of the voting rights pertaining to
the amount of preferred stock represented by the holders
depositary shares. The preferred stock depositary will vote the
amount of preferred stock represented by the depositary shares
in accordance with the instructions, and we will agree to take
all reasonable action necessary to enable the preferred stock
depositary to do so. The preferred stock depositary will abstain
from voting the amount of preferred stock represented by the
depositary shares for which it does not receive specific
instructions from the holders of depositary receipts evidencing
the depositary shares. The preferred stock depositary will not
be responsible for any failure to carry out any instruction to
vote, or for the manner or effect of any vote made, as long as
the action or non-action is in good faith and does not result
from the preferred stock depositarys negligence or willful
misconduct.
Liquidation
Preference
In the event that we voluntarily or involuntarily liquidate,
dissolve or wind up, the holders of each depositary receipt will
be entitled to the fraction of the liquidation preference
accorded each share of preferred stock represented by the
depositary shares, as specified in the applicable prospectus
supplement.
Conversion
of Depositary Shares
The depositary shares will not be convertible into common stock
or any of our other securities or property, unless we so specify
in the applicable prospectus supplement relating to an offering
of depositary shares.
Amendment
and Termination of the Deposit Agreement
We may amend the form of depositary receipt and any provision of
the deposit agreement at any time by agreement with the
preferred stock depositary. However, any amendment that imposes
or increases any fees, taxes or other charges payable by the
holders of depositary receipts, other than taxes and other
governmental charges, fees and other expenses payable by the
holders as described below under Charges of Preferred
Stock Depositary, or that otherwise prejudices any
substantial existing right of holders of depositary receipts,
will not take effect as to outstanding depositary receipts until
the expiration of 30 days after notice of the amendment has
been mailed to the record holders of outstanding depositary
receipts.
When we direct the preferred stock depositary to do so, the
preferred stock depositary will terminate the deposit agreement
by mailing a notice of termination to the record holders of all
depositary receipts then outstanding at least 30 days prior
to the date fixed in the notice for termination. In addition,
the preferred stock
15
depositary may terminate the deposit agreement if at any time
45 days have passed since the preferred stock depositary
has delivered to us a written notice of its election to resign
and a successor depositary has not been appointed and accepted
its appointment. If any depositary receipts remain outstanding
after the date of termination, the preferred stock depositary
thereafter will discontinue the transfer of depositary receipts,
will suspend the distribution of dividends to the holders
thereof, and will not give any further notices, other than the
notice of termination, or perform any further acts under the
deposit agreement, except as provided below and except that the
preferred stock depositary will continue to collect dividends on
the preferred stock and other distributions with respect to the
preferred stock and will continue to deliver the preferred stock
together with any dividends and distributions and the net
proceeds of any sales of rights, preferences, privileges or
other property, without liability for interest thereon, in
exchange for depositary receipts surrendered. At any time after
the expiration of two years from the date of termination, the
preferred stock depositary may sell the preferred stock then
held by it at public or private sales, at such place or places
and upon such terms as it deems proper and may thereafter hold
the net proceeds of any such sale, together with any money or
other property then held by it, without liability for interest
thereon, for the pro rata benefit of the holders of depositary
receipts that have not been surrendered.
In addition, the deposit agreement will automatically terminate
if:
|
|
|
|
|
all outstanding depositary shares have been redeemed; or
|
|
|
|
there has been a final distribution of the related preferred
stock in connection with our liquidation, dissolution or winding
up and the distribution has been distributed to the holders of
depositary receipts evidencing the depositary shares
representing the preferred stock.
|
Charges
of Preferred Stock Depositary
We will pay all fees, charges and expenses of the preferred
stock depositary in connection with its performance of the
deposit agreement, except for any taxes and other governmental
charges and except as provided in the deposit agreement. Holders
of depositary receipts will pay the fees and expenses of the
preferred stock depositary for any duties requested by the
holders to be performed which are outside those expressly
provided for in the deposit agreement.
Resignation
and Removal of Depositary
The preferred stock depositary may resign at any time by
delivering to us notice of its election to do so, and we may at
any time remove the preferred stock depositary. Any resignation
or removal of the acting preferred stock depository will take
effect upon our appointment of a successor preferred stock
depositary. We must appoint a successor preferred stock
depositary within 45 days after delivery of the notice of
resignation or removal.
Miscellaneous
The preferred stock depositary will make available for
inspection to holders of depositary receipts any reports and
communications the preferred stock depositary receives from us
relating to the preferred stock.
We will not be liable, nor will the preferred stock depositary
be liable, if we are prevented from or delayed in, by law or any
circumstances beyond our control, performing our obligations
under the deposit agreement. Our obligations and the obligations
of the preferred stock depositary under the deposit agreement
will be limited to performing our duties in good faith and
without negligence or willful misconduct. We will not be
obligated, nor will the preferred stock depositary be obligated,
to prosecute or defend any legal proceeding relating to any
depositary receipts, depositary shares or shares of preferred
stock represented by depositary shares unless satisfactory
indemnity is furnished to us. We may rely, and the preferred
stock depositary may rely, on written advice of counsel or
accountants, or information provided by persons presenting
shares of preferred stock represented by depositary shares for
deposit, holders of depositary receipts or other persons we
believe in good faith to be competent to give this information,
and on documents we believe in good faith to be genuine and
signed by a proper party.
16
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase debt securities, preferred
stock or common stock. We may issue warrants independently or
together with any other securities we offer under a prospectus
supplement. The warrants may be attached to or separate from the
securities. We will issue each series of warrants under a
separate warrant agreement that we will enter into with a bank
or trust company, as warrant agent. The statements made in this
section relating to the warrant agreement are summaries only.
These summaries are not complete. When we issue warrants, we
will provide the specific terms of the warrants and the
applicable warrant agreement in a prospectus supplement. To the
extent the information contained in the prospectus supplement
differs from this summary description, you should rely on the
information in the prospectus supplement. For more detail, we
refer you to the applicable warrant agreement itself, which we
will file as an exhibit to, or incorporate by reference in, the
registration statement.
Debt
Warrants
We will describe in the applicable prospectus supplement the
terms of the debt warrants being offered, the warrant agreement
relating to the debt warrants and the debt warrant certificates
representing the debt warrants, including:
|
|
|
|
|
the title of the debt warrants;
|
|
|
|
the aggregate number of the debt warrants;
|
|
|
|
the price or prices at which the debt warrants will be issued;
|
|
|
|
the designation, aggregate principal amount and terms of the
debt securities purchasable upon exercise of the debt warrants,
and the procedures and conditions relating to the exercise of
the debt warrants;
|
|
|
|
the designation and terms of any related debt securities with
which the debt warrants are issued, and the number of the debt
warrants issued with each security;
|
|
|
|
the date, if any, on and after which the debt warrants and the
related debt securities will be separately transferable;
|
|
|
|
the principal amount of debt securities purchasable upon
exercise of each debt warrant, and the price at which the
principal amount of the debt securities may be purchased upon
exercise;
|
|
|
|
the date on which the right to exercise the debt warrants will
commence, and the date on which the right will expire;
|
|
|
|
the maximum or minimum number of the debt warrants that may be
exercised at any time;
|
|
|
|
information with respect to book-entry procedures, if any;
|
|
|
|
a discussion of the material United States federal income tax
considerations applicable to the exercise of the debt
warrants; and
|
|
|
|
any other terms of the debt warrants and terms, procedures and
limitations relating to the exercise of the debt warrants.
|
Holders may exchange debt warrant certificates for new debt
warrant certificates of different denominations, and may
exercise debt warrants at the corporate trust office of the
warrant agent or any other office indicated in the applicable
prospectus supplement. Prior to the exercise of their debt
warrants, holders of debt warrants will not have any of the
rights of holders of the securities purchasable upon the
exercise and will not be entitled to payments of principal,
premium or interest on the securities purchasable upon the
exercise of debt warrants.
Equity
Warrants
We will describe in the applicable prospectus supplement the
terms of the preferred stock warrants or common stock warrants
being offered, the warrant agreement relating to the preferred
stock warrants or common stock warrants and the warrant
certificates representing the preferred stock warrants or common
stock warrants, including:
|
|
|
|
|
the title of the warrants;
|
17
|
|
|
|
|
the securities for which the warrants are exercisable;
|
|
|
|
the price or prices at which the warrants will be issued;
|
|
|
|
if applicable, the number of warrants issued with each share of
preferred stock or share of common stock;
|
|
|
|
if applicable, the date on and after which the warrants and the
related preferred stock or common stock will be separately
transferable;
|
|
|
|
the date on which the right to exercise the warrants will
commence, and the date on which the right will expire;
|
|
|
|
the maximum or minimum number of warrants which may be exercised
at any time;
|
|
|
|
information with respect to book-entry procedures, if any;
|
|
|
|
a discussion of the material United States federal income tax
considerations applicable to exercise of the warrants; and
|
|
|
|
any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
|
Unless otherwise provided in the applicable prospectus
supplement, holders of equity warrants will not be entitled, by
virtue of being such holders, to vote, consent, receive
dividends, receive notice as stockholders with respect to any
meeting of stockholders for the election of our directors or any
other matter, or to exercise any rights whatsoever as
stockholders.
Except as provided in the applicable prospectus supplement, the
exercise price payable and the number of shares of common stock
or preferred stock purchasable upon the exercise of each warrant
will be subject to adjustment in certain events, including the
issuance of a stock dividend to holders of common stock or
preferred stock or a stock split, reverse stock split,
combination, subdivision or reclassification of common stock or
preferred stock. In lieu of adjusting the number of shares of
common stock or preferred stock purchasable upon exercise of
each warrant, we may elect to adjust the number of warrants.
Unless otherwise provided in the applicable prospectus
supplement, no adjustments in the number of shares purchasable
upon exercise of the warrants will be required until all
cumulative adjustments require an adjustment of at least 1%
thereof. We may, at our option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of
warrants, but we will pay the cash value of any fractional
shares otherwise issuable. Notwithstanding the foregoing, except
as otherwise provided in the applicable prospectus supplement,
in case of any consolidation, merger, or sale or conveyance of
our property as an entirety or substantially as an entirety, the
holder of each outstanding warrant will have the right to the
kind and amount of shares of stock and other securities and
property, including cash, receivable by a holder of the number
of shares of common stock or preferred stock into which each
warrant was exercisable immediately prior to the particular
triggering event.
Exercise
of Warrants
Each warrant will entitle the holder of the warrant to purchase
for cash at the exercise price provided in the applicable
prospectus supplement the principal amount of debt securities or
shares of preferred stock or shares of common stock being
offered. Holders may exercise warrants at any time up to the
close of business on the expiration date provided in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants are void.
Holders may exercise warrants as described in the prospectus
supplement relating to the warrants being offered. Upon receipt
of payment and the warrant certificate properly completed and
duly executed at the corporate trust office of the warrant agent
or any other office indicated in the prospectus supplement, we
will, as soon as practicable, forward the debt securities,
shares of preferred stock or shares of common stock purchasable
upon the exercise of the warrant. If less than all of the
warrants represented by the warrant certificate are exercised,
we will issue a new warrant certificate for the remaining
warrants.
18
PLAN OF
DISTRIBUTION
We may sell the securities (1) through underwriters or
dealers, (2) through agents,
and/or
(3) directly to one or more purchasers. We may distribute
the securities from time to time in one or more transactions at:
|
|
|
|
|
a fixed price or prices, which may be changed;
|
|
|
|
market prices prevailing at the time of sale;
|
|
|
|
prices related to the prevailing market prices; or
|
|
|
|
negotiated prices.
|
We may solicit directly offers to purchase the securities being
offered by this prospectus. We may also designate agents to
solicit offers to purchase the securities from time to time. We
will name in a prospectus supplement any agent involved in the
offer or sale of our securities.
If we utilize a dealer in the sale of the securities being
offered by this prospectus, we will sell the securities to the
dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer
at the time of resale.
If we utilize an underwriter in the sale of the securities being
offered by this prospectus, we will execute an underwriting
agreement with the underwriter at the time of sale and we will
provide the name of any underwriter in the prospectus supplement
that the underwriter will use to make resales of the securities
to the public. In connection with the sale of the securities,
we, or the purchasers of securities for whom the underwriter may
act as agent, may compensate the underwriter in the form of
underwriting discounts or commissions. The underwriter may sell
the securities to or through dealers, and the underwriter may
compensate those dealers in the form of discounts, concessions
or commissions.
We will provide in the applicable prospectus supplement any
compensation we pay to underwriters, dealers or agents in
connection with the offering of the securities, and any
discounts, concessions or commissions allowed by underwriters to
participating dealers. Underwriters, dealers and agents
participating in the distribution of the securities may be
deemed to be underwriters within the meaning of the Securities
Act and any discounts and commissions received by them and any
profit realized by them on resale of the debt securities may be
deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and
agents against civil liabilities, including liabilities under
the Securities Act, or to contribute to payments they may be
required to make in respect thereof.
If we so specify in the applicable prospectus supplement, we
will authorize underwriters, dealers and agents to solicit
offers by institutions to purchase the securities under
contracts providing for payment and delivery on future dates.
The institutions with which the contracts may be made include
commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable
institutions and others. The purchasers obligations under
the contracts will not be subject to any conditions except that:
|
|
|
|
|
the purchase of the securities may not at the time of delivery
be prohibited under the laws of the jurisdiction to which the
purchaser is subject; and
|
|
|
|
if the securities are also being sold to underwriters, we will
have sold to the underwriters the securities not sold for
delayed delivery.
|
The underwriters, dealers and agents will not be responsible for
the validity or performance of the contracts. We will provide in
the prospectus supplement relating to the contracts the price to
be paid for the securities, the commissions payable for
solicitation of the contracts and the date in the future for
delivery of the securities.
The securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain
persons participating in the offering may engage in transactions
that stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of
the securities, which involves the sale by persons participating
in the offering of more securities than we sold to them. In
these circumstances, these persons would cover such
over-allotments or short positions by making purchases in the
open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of
19
the securities by bidding for or purchasing securities in the
open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in the offering may
be reclaimed if securities sold by them are repurchased in
connection with stabilization transactions. The effect of these
transactions may be to stabilize or maintain the market price of
the securities at a level above that which might otherwise
prevail in the open market. These transactions may be
discontinued at any time.
The underwriters, dealers and agents may engage in transactions
with us, or perform services for us, in the ordinary course of
business.
LEGAL
MATTERS
Latham & Watkins LLP, San Diego, California, will
pass upon the validity of the securities being offered by this
prospectus.
EXPERTS
The consolidated financial statements and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting)
incorporated in this Prospectus by reference to the Annual
Report on
Form 10-K
for the year ended March 31, 2006 have been so incorporated
in reliance on the report of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
ViaSat is subject to the informational requirements of the
Exchange Act and files annual, quarterly and special reports,
proxy statements and other information with the SEC. You may
read and copy any reports, proxy statements and other
information we file at the SECs public reference room at
100 F Street, N.E., Washington, D.C. 20549. Please call the
SEC at
1-800-SEC-0330
for further information on the public reference room. You may
also access filed documents at the SECs web site at
www.sec.gov.
We are incorporating by reference some information about us that
we file with the SEC. We are disclosing important information to
you by referencing those filed documents. Any information that
we reference this way is considered part of this prospectus. The
information in this prospectus supersedes information
incorporated by reference that we have filed with the SEC prior
to the date of this prospectus, while information that we file
with the SEC after the date of this prospectus that is
incorporated by reference will automatically update and
supersede this information.
We incorporate by reference the following documents we have
filed, or may file, with the SEC:
|
|
|
|
|
Our Annual Report on
Form 10-K
for the fiscal year ended March 31, 2006, filed with the
SEC on June 6, 2006;
|
|
|
|
Our Annual Report on
Form 10-K/A
(Amendment No. 1) for the fiscal year ended
March 31, 2006, filed with the SEC on July 26, 2006;
|
|
|
|
Our Quarterly Reports on
Form 10-Q
filed with the SEC on August 10, 2006, November 7,
2006 and February 7, 2007;
|
|
|
|
Our Current Reports on
Form 8-K
filed with the SEC on April 5, 2006, May 8, 2006,
June 23, 2006, July 18, 2006, October 10, 2006,
October 16, 2006, January 19, 2007, January 29,
2007 and February 20, 2007;
|
|
|
|
The description of our common stock contained in our
Registration Statement on
Form 8-A
filed with the SEC on November 20, 1996; and
|
|
|
|
All documents filed by us with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and before termination of this offering.
|
20
We also specifically incorporate by reference any documents
filed by us with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of the initial
registration statement and prior to the effectiveness of the
registration statement.
To the extent that any information contained in any Current
Report on
Form 8-K,
or any exhibit thereto, was furnished to, rather than filed
with, the SEC, such information or exhibit is specifically not
incorporated by reference in this prospectus.
You may request a free copy of any of the documents incorporated
by reference in this prospectus by writing or telephoning us at
the following address:
ViaSat,
Inc.
6155 El Camino Real
Carlsbad, California 92009
(760) 476-2200
21
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution
|
Our estimated expenses in connection with the distribution of
the securities being registered are as set forth in the
following table:
|
|
|
|
|
SEC Registration Fee
|
|
$
|
37,252
|
*
|
Fees and Expenses of the Trustee
|
|
$
|
10,000
|
**
|
Printing and Engraving Expenses
|
|
$
|
50,000
|
**
|
Legal Fees and Expenses
|
|
$
|
50,000
|
**
|
Accounting Fees and Expenses
|
|
$
|
25,000
|
**
|
Transfer Agent and Registrar Fees
|
|
$
|
5,000
|
**
|
Miscellaneous
|
|
$
|
22,748
|
**
|
|
|
|
|
|
Total
|
|
$
|
200,000
|
|
|
|
|
* |
|
Includes (i) the registration fee for the $46,000,000 of
available securities previously registered by ViaSat pursuant to
registration statement
no. 333-69664
and (ii) the registration fee for the $154,000,000 of
available securities previously registered by ViaSat pursuant to
registration statement
no. 333-116468. |
|
** |
|
Estimated. |
|
|
Item 15.
|
Indemnification
of Directors and Officers
|
Our officers and directors are covered by certain provisions of
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. ViaSat is 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 ViaSat or its 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 directors fiduciary duty as director, except
for liability: (1) for any breach of the directors
duty of loyalty to ViaSat or its 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, ViaSat has 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 ViaSats best interests, to indemnify its
directors and officers in connection with actions, suits or
proceedings brought against them by a third party or in the name
of ViaSat, 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 ViaSats directors and officers to the
full extent provided by Delaware corporate law. In addition,
ViaSat has entered into indemnification agreements
II-1
with its directors and officers that generally provide for
mandatory indemnification under circumstances for which
indemnification would otherwise be discretionary under Delaware
law.
ViaSat maintains 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 ViaSat would have the power or
obligation to indemnify him against such liability under the
provisions of the bylaws.
A list of exhibits filed with this registration statement on
Form S-3
is set forth on the Exhibit Index and is incorporated
herein by reference.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of 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 SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of
Registration Fee table in the effective 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 this registration statement;
provided, however, that subparagraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or
furnished to the SEC by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration statement or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of 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 herein, 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.
(4) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act
II-2
shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the
initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the
Exchange Act) 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) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act (Act) in
accordance with the rules and regulations prescribed by the SEC
under Section 305(b)(2) of the Act.
(d) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to existing
provisions or arrangements whereby the registrant may indemnify
a director, officer or controlling person of the registrant
against liabilities arising under the Securities Act, or
otherwise, the registrant has 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 for the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, ViaSat, Inc.
certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement on
Form S-3
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Carlsbad, State of California, on
April 3, 2007.
ViaSat, Inc.
Mark D. Dankberg
Chairman of the Board and Chief Executive Officer
POWER OF
ATTORNEY
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated. Each person whose
signature appears below hereby constitutes and appoints Mark D.
Dankberg and Ronald G. Wangerin his true and lawful
attorney-in-fact
and agent, with full power of substitution and resubstitution
for him in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, or any registration statement for the
same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act, and to file the same,
with exhibits thereto and other documents in connection
therewith, with the SEC, granting unto such
attorney-in-fact
and agent full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that such
attorney-in-fact
and agent or his substitutes may do or cause to be done by
virtue hereof.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Mark
D. Dankberg
Mark
D. Dankberg
|
|
Chairman of the Board and
Chief Executive Officer (Principal Executive Officer)
|
|
April 3, 2007
|
|
|
|
|
|
/s/ Ronald
G. Wangerin
Ronald
G. Wangerin
|
|
Vice President,
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
April 3, 2007
|
|
|
|
|
|
/s/ Robert
W. Johnson
Robert
W. Johnson
|
|
Director
|
|
April 3, 2007
|
|
|
|
|
|
/s/ B.
Allen Lay
B.
Allen Lay
|
|
Director
|
|
March 29, 2007
|
|
|
|
|
|
/s/ Jeffrey
M. Nash
Jeffrey
M. Nash
|
|
Director
|
|
April 3, 2007
|
|
|
|
|
|
/s/ John
P. Stenbit
John
P. Stenbit
|
|
Director
|
|
March 29, 2007
|
|
|
|
|
|
/s/ Michael
B. Targoff
Michael
B. Targoff
|
|
Director
|
|
April 3, 2007
|
|
|
|
|
|
/s/ Harvey
P. White
Harvey
P. White
|
|
Director
|
|
April 3, 2007
|
II-4
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1*
|
|
Underwriting Agreement.
|
|
3
|
.1(1)
|
|
Second Amended and Restated
Certificate of Incorporation of the Registrant.
|
|
3
|
.2(2)
|
|
First Amended and Restated By-Laws
of the Registrant.
|
|
4
|
.1(3)
|
|
Form of Common Stock Certificate.
|
|
4
|
.2(2)
|
|
Form of Indenture.
|
|
4
|
.3*
|
|
Form of Debt Security.
|
|
4
|
.4*
|
|
Form of Warrant.
|
|
4
|
.5*
|
|
Form of Warrant Agreement.
|
|
4
|
.6*
|
|
Form of Deposit Agreement.
|
|
5
|
.1(4)
|
|
Opinion of Latham &
Watkins LLP.
|
|
12
|
.1(4)
|
|
Statement Regarding the
Computation of Ratio of Earnings to Fixed Charges.
|
|
23
|
.1(4)
|
|
Consent of Latham &
Watkins LLP. Reference is made to Exhibit 5.1.
|
|
23
|
.2(4)
|
|
Consent of PricewaterhouseCoopers
LLP, Independent Registered Public Accounting Firm.
|
|
24
|
.1(4)
|
|
Powers of Attorney (included on
signature page hereto).
|
|
25
|
.1*
|
|
Statement of Eligibility of
Trustee on
Form T-1.
|
|
|
|
* |
|
To be filed by amendment or incorporated by reference in
connection with the offering of the securities. |
|
(1) |
|
Incorporated by reference to ViaSats Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2000 filed
with the SEC on November 14, 2000. |
|
(2) |
|
Incorporated by reference to ViaSats Registration
Statement on
Form S-3
filed with the SEC on June 14, 2004 (File
No. 333-116468),
as amended by Amendment No. 1 filed with the SEC on
July 1, 2004 and Amendment No. 2 filed with the SEC on
July 7, 2004. |
|
(3) |
|
Incorporated by reference to ViaSats Registration
Statement on
Form S-1
filed with the SEC on October 1, 1996 (File
No. 333-13183),
as amended by Amendment No. 1 filed with the SEC on
November 5, 1996, Amendment No. 2 filed with the SEC
on November 20, 1996, and Amendment No. 3 filed with
the SEC on November 22, 1996. |
|
(4) |
|
Filed herewith. |