AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 2001
Registration No. 333-69664
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VIASAT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 3663 33-0174996
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ORGANIZATION)
6155 EL CAMINO REAL
CARLSBAD, CALIFORNIA 92009
(760) 476-2200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
AGENT FOR SERVICE: COPIES TO:
MARK D. DANKBERG THOMAS A. EDWARDS, ESQ.
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER CRAIG M. GARNER, ESQ.
VIASAT, INC. LATHAM & WATKINS
6155 EL CAMINO REAL 701 B STREET, SUITE 2100
CARLSBAD, CALIFORNIA 92009 SAN DIEGO, CALIFORNIA 92101
(760) 476-2200 (619) 236-1234
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. [ ]
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. [X]
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. [ ]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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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 OF 1933 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.
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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 NOVEMBER 26, 2001)
PROSPECTUS
$75,000,000
VIASAT, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
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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 $75,000,000:
- 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 National Market under the symbol
VSAT.
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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.
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The date of this prospectus is , 2001
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.
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TABLE OF CONTENTS
PAGE
----
About this Prospectus....................................... 3
Where You Can Find More Information......................... 3
Forward-Looking Statements.................................. 4
ViaSat...................................................... 4
Ratio of Earnings To Fixed Charges.......................... 5
Use of Proceeds............................................. 5
Description of Debt Securities.............................. 6
Description of Capital Stock................................ 14
Description of Depositary Shares............................ 17
Description of Warrants..................................... 20
Plan of Distribution........................................ 23
Legal Matters............................................... 24
Experts..................................................... 24
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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.
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission 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 $75,000,000. 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 next heading, "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
ViaSat is subject to the informational requirements of the Securities
Exchange Act of 1934, 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 SEC's public
reference room at 450 Fifth Street, N.W., 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 SEC's 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, 2001
filed with the SEC on June 29, 2001 and Amendment No. 1 thereto filed on
Form 10-K/A with the SEC on October 12, 2001;
- Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2001 filed with the SEC on August 14, 2001 and Amendment No. 1 thereto
filed on Form 10-Q/A with the SEC on October 12, 2001;
- Our Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 2001 filed with the SEC on November 14, 2001;
- 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 Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and before termination of this offering.
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
3
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 and
Section 21E of the Securities Exchange Act of 1934. You can identify these
forward-looking statements by forward-looking words such as "believe," "may,"
"could," "will," "estimate," "continue," "anticipate," "intend," "seek," "plan,"
"expect," "should," "would" and similar expressions in this prospectus. These
forward-looking statements are subject to a number of risks, uncertainties and
assumptions about ViaSat, 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;
- 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. We undertake no
obligation to publicly update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise.
VIASAT
We are a leading provider of advanced broadband digital satellite
communications and other wireless networking and signal processing equipment and
services to the defense and commercial markets. Based on our extensive
experience in complex defense communications systems, we have developed the
capability to design and implement innovative communications solutions which
enhance bandwidth utilization by applying our sophisticated networking and
digital signal processing techniques. To date, we have achieved 15 consecutive
years of revenue growth and 14 consecutive years of profitability. Our goal is
to leverage our advanced technology and capabilities to capture a significant
share of the global satellite communications services and equipment segment of
the high-growth broadband communications market for both government and
commercial customers.
Our internal growth to date has historically been driven largely by our
success in meeting the need for advanced communications products for the U.S.
military. By developing cost-effective communications products incorporating our
advanced technologies we have continued to grow the markets for our defense
products and services in an environment of shrinking defense budgets. Our
current defense products include our advanced multifunction information
distribution system, or MIDS, product line, our simulation and test equipment
which allows the testing of sophisticated airborne radio equipment without
expensive flight exercises, and our UHF DAMA satellite communications products
consisting of modems, terminals and network control systems. The MIDS terminal
operates as part of the Link-16 line-of-sight tactical radio system that enables
real time data networking among ground and airborne military users providing an
electronic overview of the battlefield for each terminal user. We were recently
selected by the U.S. government as a new Link-16 terminal contractor and one of
only three current U.S. government certified manufacturers of Link-16 MIDS
terminals. The defense market continues to be a critical and core element of our
overall business strategy.
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We have been increasing our focus in recent years on offering satellite
based communications products to address commercial market needs, including
through the recent acquisition of two other strategic satellite communication
equipment providers. Our commercial business has grown from approximately 24% of
our revenues in fiscal year 2000 to approximately 62% of our revenues in fiscal
year 2001. To date, our principal commercial offerings include Very Small
Aperture Terminals (VSATs), network control systems, network integration
services, network operation services, gateway infrastructure, antenna systems
and other satellite ground stations.
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.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges are as follows for the periods
indicated:
SIX
MONTHS
YEAR ENDED MARCH 31, ENDED
----------------------------------------- SEPTEMBER 30,
1997 1998 1999 2000 2001 2001
----- ----- ----- ----- ----- -------------
Ratio of earnings to fixed charges... 10.34 14.99 15.18 16.28 11.21 8.14
Fixed charges consist of interest expense, including capitalized interest,
amortized premiums, discounts and capitalized expenses related to indebtedness
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.
5
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. Accordingly, for a description of the terms of any series of debt
securities, you must refer to both the prospectus supplement relating to that
series and the description of the debt securities 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.
The debt securities offered by this prospectus will be issued under an
indenture between us and the trustee for one or more series of debt securities
designated in the applicable prospectus supplement or supplements. The indenture
is subject to, and governed by, the Trust Indenture Act of 1939, as amended. We
have incorporated by reference the form of indenture as an exhibit to the
registration statement of which this prospectus forms a part and you should read
the indenture carefully for the provisions that may be important to you. We have
summarized select portions of the indenture below. The summary is not complete.
Terms used in the summary below and not defined in this prospectus have the
meanings specified in the indenture.
GENERAL
The debt securities will be our direct obligations, which may be secured or
unsecured, and which may be senior or subordinated indebtedness. We may issue an
unlimited amount of debt securities, in one or more series, under the indenture.
The terms of each series of debt securities will be established by our board of
directors or in a supplemental indenture. We do not have to issue all debt
securities of one series at the same time and, unless described differently in a
prospectus supplement, we may reopen a series, without the consent of the
holders of the debt securities of that series, for issuances of additional debt
securities of that series.
There may be more than one trustee under the indenture, each relating to
one or more series of debt securities. Any trustee may resign or be removed by
us at which time we will appoint a successor trustee. Each trustee will be a
trustee of a trust under the indenture separate and apart from the trust
administered by any other trustee under the indenture. Except as indicated
elsewhere in this prospectus, any action taken by the trustee may be taken by
the trustee only relating to the series of debt securities for which it is the
trustee.
We will provide 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 aggregate principal amount of the debt securities and any limit on
the aggregate principal amount of the debt securities;
- whether we will issue the debt securities at a discount and the portion
of the principal amount of the debt securities payable upon declaration
of acceleration of the maturity of the securities or upon redemption, if
other than the principal amount, and the rate at which the original
issue discount will accrue;
- the date on which we will pay the principal on the debt securities;
- the rate, which may be fixed or variable, or the method used to
determine the rate at which the debt securities will bear interest;
- the date from which interest will accrue, the date on which interest
will be payable and any regular record date for the interest payable on
any interest payment date;
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- the place where we will pay, or the method of payment of, principal,
premium and interest on the debt securities and where holders may
surrender the debt securities for conversion, registration of transfer
or exchange;
- any obligation we have to redeem or purchase the debt securities under
any sinking fund or similar provisions or at the option of a holder of
debt securities;
- our right to redeem the debt securities and the date on which, the price
at which and the terms and conditions upon which we may redeem the debt
securities;
- the denominations in which we will issue the debt securities, if other
than denominations of $1,000 and any multiples of $1,000;
- provisions, if any, for the defeasance or discharge of our obligations
relating to the debt securities;
- whether we will issue the debt securities in registered or bearer form;
- the currency in which we will pay principal, premium and interest on the
debt securities;
- if we will pay principal, premium or interest on the debt securities in
one or more currencies other than those in which the debt securities are
denominated, the manner in which we will determine the exchange rate on
the payments;
- the manner in which we will determine the amounts of payment of
principal, premium or interest on the debt securities if these amounts
may be determined by reference to an index based on a currency other
than that in which the debt securities are denominated or designated or
by reference to a commodity, commodity index, stock exchange index or
financial index;
- any addition to, or change or deletion of, any events of default or
covenants in the indenture;
- a discussion of any material or special United States federal income tax
considerations applicable to the debt securities;
- any depositaries, trustees, interest rate calculation agents, exchange
rate calculation agents or other agents relating to the debt securities
other than those originally appointed;
- whether we will issue the debt securities in the form of global
securities and whether we will issue the global securities in temporary
or permanent global form;
- any rights of the holders of the debt securities to convert the debt
securities into other securities or property and the terms and
conditions of the conversion;
- any subordination provisions relating to the debt securities;
- any listing of the debt securities on a securities exchange;
- any provisions relating to any security provided for by the debt
securities; and
- any other terms of the debt securities that will not be inconsistent
with the indenture.
We may issue debt securities at a discount below their stated principal
amount. Even if we do not issue the debt securities below their stated principal
amount, for United States federal income tax purposes the debt securities may be
deemed to have been issued with a discount because of interest payment
characteristics. We will describe in a prospectus supplement the United States
federal income tax considerations applicable to debt securities issued at a
discount or deemed to be issued at a discount. We will also describe in a
prospectus supplement the special United States federal income tax
considerations or other restrictions or terms applicable to debt securities
issuable in bearer form, offered exclusively to foreigners or denominated in a
foreign currency.
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DENOMINATIONS, REGISTRATION, TRANSFER AND EXCHANGE
Unless we specify otherwise in the prospectus supplement, the debt
securities of any series will be issuable only in denominations of $1,000 and
multiples of $1,000, and will be payable only in U.S. dollars.
We may issue the debt securities in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement. We may issue the
global securities in either registered or bearer form and in either temporary or
permanent form. We will describe the specific terms of the depositary
arrangement relating to a series of debt securities in the prospectus
supplement.
You may transfer or exchange certificated debt securities at any office we
maintain for this purpose in accordance with the terms of the indenture. We will
not charge a service fee 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 we are required to pay in connection with a transfer
or exchange.
You may effect the transfer of certificated debt securities and the right
to receive the principal, 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.
We are not required to:
- register, transfer or exchange debt securities of any series during a
period beginning at the opening of 15 business days before the day we
transmit a notice of redemption of debt securities of the series
selected for redemption and ending at the close of business on the day
of the transmission; or
- to register, transfer or exchange any debt security so selected for
redemption in whole or in part, except the unredeemed portion of any
debt security being redeemed in part.
COVENANTS
We will describe in the prospectus supplement any restrictive covenants
applicable to an issue of debt securities.
CONSOLIDATION, MERGER OR SALE OF ASSETS
We may not consolidate or merge with or into, or sell, assign, convey or
transfer our properties and assets substantially in their entirety to another
corporation, person or entity unless:
- in the case of a consolidation or merger, (1) we are the surviving
corporation, or (2) the successor corporation is an entity organized and
validly existing under the laws of the United States, any state of the
United States or the District of Columbia and expressly assumes our
obligations under the debt securities and the indenture; and
- immediately after giving effect to the transaction, no event of default
exists.
Notwithstanding the foregoing, any of our subsidiaries may consolidate
with, merge into or transfer all or part of its properties and assets to us.
EVENTS OF DEFAULT
Each of the following is an event of default relating to a series of debt
securities:
- 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;
- default in the payment of principal of or premium on any debt security
of that series when due and payable;
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- default in the deposit of any sinking fund payment, when and as due
relating to any debt security of that series;
- default in the performance or breach by us of any other covenant or
warranty 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 at
least 25% in principal amount of the outstanding debt securities of that
series as provided in the indenture;
- the acceleration of the maturity date of any of our indebtedness, other
than non-recourse indebtedness, at any one time, in an amount exceeding
the greater of (1) $25 million or (2) 5% of our consolidated net
tangible assets, if the acceleration is not cancelled within 30 days;
- events of bankruptcy, insolvency or reorganization; and
- any other event of default provided relating to debt securities of that
series that is described in the applicable prospectus supplement
accompanying this prospectus.
Non-recourse indebtedness means indebtedness for which the terms provide
that the lender's claim for repayment of the indebtedness is limited solely to a
claim against the property that secures the indebtedness.
Consolidated net tangible assets means the total amount of assets,
including investments in joint ventures, of a company and its subsidiaries, if
any, less applicable depreciation, amortization and other valuation reserves
after deducting:
- all current liabilities, excluding (1) the current portion of long-term
indebtedness, (2) intercompany liabilities and (3) any liabilities that
are by their terms renewable or extendible at the option of the obligor
to a time more than 12 months from the time as of which the amount is
being computed; and
- all goodwill, trade names, trademarks, patents, unamortized debt
discount and any other similar intangibles, all as provided on the most
recent consolidated balance sheet of the company and computed in
accordance with generally accepted accounting principles.
If an event of default relating to outstanding debt securities of any
series occurs and is continuing, then the trustee or the holders of at least 25%
in principal amount of outstanding debt securities of that series may declare,
in a written notice, the principal amount, or specified amount, plus accrued and
unpaid interest and premium, if payable on all debt securities of that series to
be immediately due and payable. At any time after a declaration of acceleration
relating to debt securities of any series has been made, the holders of a
majority in principal amount of the outstanding debt securities of that series
may rescind and cancel the acceleration if:
- the holders act before the trustee has obtained a judgment or decree for
payment of the money due;
- we have paid or deposited with the trustee a sum sufficient to pay
overdue interest and overdue principal other than the accelerated
interest and principal; and
- we have cured or the holders have waived all events of default, other
than the non-payment of accelerated principal and interest relating to
debt securities of that series, 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 the discount securities
upon the occurrence of an event of default.
The trustee has 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
9
any loss, liability or expense. Subject to 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 relating to the debt securities of that series.
No holder of any debt security of any series will have any right to
institute any judicial or other proceeding relating 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 the trustee written notice of a
continuing event of default relating to debt securities of that series;
and
- the holders of at least 25% in principal amount of outstanding debt
securities of that series have made a 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.
The holder of any debt security will have an absolute and unconditional
right to receive payment of the principal, 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.
Within 120 days after the end of our fiscal year we will furnish to the
trustee a statement as to compliance with the indenture. 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,
relating 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 the indenture, without prior notice to or consent of any
holders, for any of the following purposes:
- to evidence the succession of another corporation to our rights and the
assumption by the successor of our covenants and obligations in the
indenture and the debt securities;
- to add to the covenants for the benefit of the holders of the debt
securities or to surrender any right or power conferred upon us in the
indenture;
- to add any events of default;
- to add or change any provision of the indenture to permit or facilitate
the issuance of debt securities of any series in bearer form, to permit
bearer securities to be issued in exchange for registered securities, to
permit bearer securities to be issued in exchange for bearer securities
of other denominations or to permit the issuance of debt securities of
any series in uncertificated form, provided that the action will not
adversely affect the interests of the holders of debt securities or
coupons in any material respect;
- to change or eliminate any provision of the indenture, provided that the
change or elimination will become effective only when there is no
outstanding debt security issued under the indenture or coupon of any
series created prior to the modification which is entitled to the
benefit of the provision and as to which the modification would apply;
- to secure the debt securities or to provide that any of our obligations
under the debt securities or the indenture will be guaranteed and the
terms and conditions for the release or substitution of the security or
guarantee;
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- to supplement any provisions of the indenture to permit or facilitate
the defeasance and discharge of any series of debt securities, provided
that the action will not adversely affect the interests of the holders
of the debt securities or coupons in any material respect;
- to establish the form or terms of debt securities and coupons as
permitted by the indenture;
- to evidence and provide for a successor or other trustee relating to one
or more series of debt securities and to add or change any provision of
the indenture to provide for or facilitate the administration of the
trusts by more than one trustee; or
- to cure any ambiguity, to correct or supplement any provision of the
indenture that may be defective or inconsistent with any other provision
of the indenture, to eliminate any conflict between the terms of the
indenture and the debt securities and the Trust Indenture Act or to make
any other provisions which will not be inconsistent with any provision
of the indenture; provided, however, that these other provisions will
not adversely affect the interest of the holders of outstanding debt
securities or coupons in any material respect.
We may modify and amend the indenture with the written consent of at least
a majority in principal amount of the outstanding debt securities of each series
affected by the modifications or amendments. However, these modifications may
not, without the consent of the holder of each outstanding debt security of each
series affected:
- change the stated maturity of any debt security or coupon;
- reduce the principal amount of any payment to be made on any debt
security or coupon;
- reduce the rate of interest or extend the time for payment of interest
or premium payable upon redemption of any debt security;
- change the coin or currency in which any debt security or any premium or
interest is payable;
- reduce the amount of the principal of a discount security that would be
due and payable upon a declaration of acceleration of the maturity;
- impair the right to institute suit for the enforcement of any payment on
or after the due date of the payment;
- alter any redemption provisions in a manner adverse to the holders of
the debt securities;
- reduce the percentage in principal amount of the outstanding debt
securities;
- adversely affect the right of any holder to convert any debt security;
- modify any of the waiver provisions, except to increase any required
percentage or to provide that other provisions of the indenture cannot
be modified or waived without the consent of the holder of each affected
outstanding debt security; or
- modify any provision described in the applicable prospectus supplement
as requiring the consent of each affected holder of debt securities.
A modification that changes or eliminates any covenant or other provision
of the indenture relating to one or more particular series of debt securities
and coupons, or that modifies the rights of the holder of debt securities and
coupons of that series, will be deemed not to affect the rights of the holders
of debt securities and coupons of any other series.
The holders of at least a majority in principal amount of the outstanding
debt securities of any series, by notice to the trustee, may on behalf of the
holders of all debt securities of that series waive any default and its
consequences under the indenture, except:
- a continuing default in the payment of interest on, premium or the
principal amount of any debt security held by a non-consenting holder;
or
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- a default of a covenant or provision that cannot be modified or amended
without the consent of the holder of each outstanding debt security of
each series affected.
DEFEASANCE OF DEBT SECURITIES AND COVENANTS IN CIRCUMSTANCES
Legal Defeasance. We may be discharged from any and all obligations
relating to the debt securities of any series except for obligations:
- to pay additional amounts, if any, upon the occurrence of specified tax,
assessment or government charge events relating to payments on the debt
securities;
- to register the transfer or exchange of debt securities;
- to replace stolen, lost or mutilated debt securities;
- to maintain paying agencies; and
- to hold money in payment for trust.
We will be discharged upon our deposit with the trustee, in trust, of money
or government obligations that 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 relating to the debt securities of that
series on the stated maturity of those payments.
We may be discharged only if 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 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.
Defeasance of Covenants. Upon compliance with specified conditions, we will
not be required to comply with some restrictive covenants contained in the
indenture and any omission to comply with the obligations will not constitute a
default or event of default relating to the debt securities. These conditions
include:
- depositing with the trustee money or 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
principal, premium and interest on and any mandatory sinking fund
payments relating to the debt securities of that series on the date
those payments are due; and
- delivering to the trustee a United States Internal Revenue Service
ruling or an opinion of counsel to the effect that the holders of the
debt securities of the 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.
LIMITED LIABILITY OF SOME PERSONS
No past, present or future stockholder, incorporator, employee, officer or
director of ViaSat or any successor corporation or any of our affiliates will
have any personal liability for our obligations under the indenture or the debt
securities because of his, her or its status as a stockholder, incorporator,
employee, officer or director.
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CONVERSION RIGHTS
We will describe in the applicable prospectus supplement the terms and
conditions, if any, upon which the debt securities are convertible into common
stock or preferred stock. Those terms will include:
- whether the debt securities are convertible into common stock or
preferred stock;
- the conversion price, or manner of calculation;
- the conversion period;
- provisions regarding whether conversion will be at our option or the
option of the holders;
- the events requiring an adjustment of the conversion price; and
- provisions affecting conversion in the event of the redemption of the
debt securities.
PAYMENT AND PAYING AGENTS
The indenture will require us to duly and punctually pay the principal,
premium and interest on the debt securities as provided in the debt securities
and the indenture.
If debt securities of a series are issuable only as registered securities,
we will maintain in each place of payment for that series an office or agency
where:
- holders may present or surrender for payment debt securities of that
series;
- holders may surrender debt securities of that series for registration of
transfer or exchange; and
- we may be served with notices and demands regarding the debt securities
of that series.
If debt securities of a series are issuable as bearer securities, we will
maintain or cause to be maintained:
- in the Borough of Manhattan, the City and State of New York, an office
or agency (i) where holders may (1) present or surrender for payment any
registered securities of that series, (2) surrender for registration or
transfer any registered securities of that series, (3) surrender debt
securities of that series for exchange or redemption and (4) present or
surrender for payment bearer securities of that series and related
coupons in the circumstances described in the following paragraph and
not otherwise, and (ii) where we may be served with notices and demands
regarding the debt securities of that series;
- subject to any applicable laws or registration, in a place of payment
for that series that is located outside the United States, an office or
agency where holders may present and surrender for payment debt
securities of that series and related coupons; provided that if the debt
securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and the stock
exchange so requires, we will maintain a paying agent for the debt
securities of that series in London, Luxembourg or any other required
city located outside the United States, so long as the debt securities
of that series are listed on that exchange; and
- subject to any applicable laws or regulations, in a place of payment for
that series located outside the United States, an office or agency where
holders may surrender any registered securities of that series for
registration of transfer or surrender for exchange or redemption debt
securities of that series and where we may receive notices and demands
regarding the debt securities of that series.
We will give prompt written notice to the applicable trustee of the
locations, and any change in the locations, of offices or agencies. If at any
time we fail to maintain any required office or agency or fail to furnish the
applicable trustee with the address, holders may make or serve the
presentations, surrenders, notices and demands at the corporate trust office of
the applicable trustee, except that holders may present
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and surrender bearer securities of that series and the related coupons for
payment at the offices specified in the applicable debt security. We will
appoint the applicable trustee as our agent to receive the foregoing
presentations, surrenders, notices and demands. However, in the case of bearer
securities, we may appoint another agent as may be specified in the applicable
prospectus supplement.
We will make no payment of principal, premium or interest on bearer
securities at any of our offices or agencies in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. However, if the debt
securities of a series are denominated and payable in U.S. dollars, we will pay
principal and any premium and interest on the debt securities of that series, if
specified in the applicable prospectus supplement, at the office of our paying
agent in the Borough of Manhattan, the City and State of New York, only if
payment in U.S. dollars of the full amount of the principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by us in accordance with the
indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
GOVERNING LAW
The indenture and the related debt securities will be governed by and
construed in accordance with the 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 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 $0.0001 per share, and
100,000,000 shares of common stock, par value $0.0001 per share.
COMMON STOCK
As of November 23, 2001, we had 22,625,067 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.
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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;
- 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;
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- 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 stockholder's 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
- 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 ViaSat's 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.
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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 five 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.
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 holder's 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.
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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 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.
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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 holder's 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 depositary's 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 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
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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.
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
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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 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 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;
- the securities for which the warrants are exercisable;
- the price or prices at which the warrants will be issued;
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- 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.
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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 of 1933, as amended, 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
23
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 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, San Diego, California, will pass upon the validity of the
securities being offered by this prospectus.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of ViaSat, Inc. for the year ended
March 31, 2001 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in auditing and accounting.
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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........................................ $ 18,750
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*
Miscellaneous............................................... $ 25,000*
--------
Total.................................................. $178,750
---------------
*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
director's fiduciary duty as director, except for liability: (1) for any breach
of the director's 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 ViaSat's 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 ViaSat's directors and officers to the full extent
provided by Delaware corporate law. In addition, ViaSat has entered into
indemnification agreements with its directors and officers that generally
provide for mandatory indemnification under circumstances for which
indemnification would otherwise be discretionary under Delaware law.
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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.
ITEM 16. EXHIBITS
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.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the 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) and (a)(1)(ii) 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
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered 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.
(b) The undersigned registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to existing provisions or otherwise, the registrant has
been advised that in the opinion of the SEC such indemnification is against
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public policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
(e) 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 (the "TIA") in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the TIA.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
Amendment No. 1 to 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 November 26, 2001.
ViaSat, Inc.
By: /s/ RICHARD A. BALDRIDGE
------------------------------------
Richard A. Baldridge
Executive Vice President, Chief
Operating Officer and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to Registration Statement on Form S-3 has been signed by
the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ MARK D. DANKBERG* Chairman of the Board, President and November 26, 2001
------------------------------------------ Chief Executive Officer (Principal
Mark D. Dankberg Executive Officer)
/s/ RICHARD A. BALDRIDGE Executive Vice President, Chief November 26, 2001
------------------------------------------ Operating Officer and Chief Financial
Richard A. Baldridge Officer (Principal Financial Officer
and Principal Accounting Officer)
/s/ ROBERT W. JOHNSON* Director November 26, 2001
------------------------------------------
Robert W. Johnson
/s/ B. ALLEN LAY* Director November 26, 2001
------------------------------------------
B. Allen Lay
/s/ JEFFREY M. NASH* Director November 26, 2001
------------------------------------------
Jeffrey M. Nash
/s/ WILLIAM A. OWENS* Director November 26, 2001
------------------------------------------
Adm. William A. Owens (Ret.)
*By: /s/ RICHARD A. BALDRIDGE November 26, 2001
------------------------------------------
Richard A. Baldridge
Attorney-in-fact
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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) Bylaws of the Registrant.
4.1(2) Form of Common Stock Certificate.
4.2(3) 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(3) Opinion of Latham & Watkins.
12.1 Statement Regarding the Computation of Ratio of Earnings to
Fixed Charges.
23.1(3) Consent of Latham & Watkins. Reference is made to Exhibit
5.1.
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
24.1(3) Powers of Attorney.
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 ViaSat's 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 ViaSat's 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.
(3)Previously filed.
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