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As filed with the Securities and Exchange Commission on February 7, 2002
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIASAT, INC.
(Exact name of Registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation or organization) |
33-0174996 (I.R.S. Employer Identification No.) |
6155 El Camino Real
Carlsbad, California 92009
(760) 476-2200
(Address of principal executive offices, including zip code, and telephone number)
AMENDED AND RESTATED U.S. MONOLITHICS, L.L.C. 2000 INCENTIVE PLAN
(Full title of the plan)
| MARK D. DANKBERG | Copies to: | |
| KEVEN K. LIPPERT 6155 El Camino Real Carlsbad, California 92009 (760) 476-2200 (Name, address, including zip code, and telephone number, including area code, of agents for service) |
THOMAS A. EDWARDS, ESQ. CRAIG M. GARNER, ESQ. Latham & Watkins 12636 High Bluff Drive, Suite 300 San Diego, California 92130 (858) 523-5400 |
CALCULATION OF REGISTRATION FEE
| Amount | Proposed Maximum | Proposed Maximum | Amount of | |||||||||||||
| Title of Securities | to be | Offering Price | Aggregate Offering | Registration | ||||||||||||
| to be Registered | Registered(1) | Per Share(2) | Price | Fee | ||||||||||||
Common Stock, $.0001 par value |
203,000 | $ | 12.49 | $ | 2,535,470.00 | $ | 233.26 | |||||||||
| (1) | Represents the number of shares authorized for issuance under the Amended and Restated U.S. Monolithics, L.L.C. 2000 Incentive Plan. | |
| (2) | Pursuant to Rule 457(h) the Proposed Maximum Offering Price Per Share is based on the average of the high and low prices for our common stock as reported on the Nasdaq National Market on February 4, 2002. |
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Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with the Securities and Exchange Commission (SEC) by us, are hereby incorporated by reference in this Registration Statement:
| (a) | 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; | ||
| (b) | Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001 filed with the SEC on June 29, 2001 and Amendment No. 1 thereto filed on Form 10-Q/A with the SEC on October 12, 2001; | ||
| (c) | Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2001 filed with the SEC on November 14, 2001; | ||
| (d) | Current Report on Form 8-K dated December 12, 2001 filed with the SEC on December 19, 2001 and Amendment No. 1 thereto filed on Form 8-K/A with the SEC on December 20, 2001; | ||
| (e) | Current Report on Form 8-K dated January 8, 2002 filed with the SEC on January 10, 2002; | ||
| (f) | Description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on November 20, 1996; and | ||
| (g) | All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (Exchange Act), since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in clause (a) above. |
All documents filed by us pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date this Registration Statement is filed with the SEC and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part of it from the respective dates of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. 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. We are not aware of any claim or proceeding in the last three years, or any threatened claim, that would have been or would be covered by these provisions. These various provisions are described below.
In June 1986, Delaware enacted legislation that authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breach of directors’ fiduciary duty of care. This duty of care requires that, when acting on behalf of the corporation, directors must exercise an informed business judgment based on all significant information reasonably available to them. Absent the limitations now authorized by such legislation, directors are accountable to corporations and their stockholders for monetary damages for conduct constituting negligence or gross negligence in the exercise of their duty of care. Although the statute does not change directors’ duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. Our certificate of incorporation limits the liability of our directors to us or our stockholders (in their capacity as directors but not in their capacity as officers) to the fullest extent permitted by such legislation. Specifically, our directors will not be personally liable for monetary damages for breach of a director’s fiduciary duty as director, except for liability: (1) for any breach of the director’s duty of loyalty to us or our stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful share repurchases or redemptions as provided in Section 174 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit.
As a Delaware corporation, we have the power, under specified circumstances generally requiring the director or officer to act in good faith and in a manner he reasonably believes to be in or not opposed to our best interests, to indemnify our directors and officers in connection with actions, suits or proceedings brought against them by a third party or in our name, by reason of the fact that they were or are such directors or officers, against expenses, judgments, fines and amounts paid in settlement in connection with any such action, suit or proceeding. The bylaws generally provide for mandatory indemnification of our directors and officers to the full extent provided by Delaware corporate law. In addition, we have entered into indemnification agreements with our directors and officers that generally provide for mandatory indemnification under circumstances for which indemnification would otherwise be discretionary under Delaware law.
We maintain insurance on behalf of any person who is or was a director or officer of ViaSat, or is or was a director or officer of ViaSat serving at the request of ViaSat as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not we would have the power or obligation to indemnify him against such liability under the provisions of the bylaws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
A list of exhibits filed with this Registration Statement is set forth in the Exhibit Index and is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (Securities Act); | ||
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 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 the Registration Statement; |
| provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. |
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant, ViaSat, Inc., a Delaware corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carlsbad, State of California, on February 7, 2002.
| ViaSat, Inc. | ||||
| By: | /s/ MARK D. DANKBERG | |||
| Mark D. Dankberg Chairman, President and Chief Executive Officer |
||||
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below authorizes Mark D. Dankberg and Richard A. Baldridge, and either of them, with full power of substitution and resubstitution, his true and lawful attorneys-in-fact, for him in any and all capacities, to sign any amendments (including post-effective amendments or supplements) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, with the SEC.
| Signature | Title | Date | ||
| /s/ MARK D. DANKBERG
Mark D. Dankberg |
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | February 7, 2002 | ||
| /s/ RICHARD A. BALDRIDGE
Richard A. Baldridge |
Executive Vice President, Chief Operating Officer and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | February 7, 2002 | ||
| /s/ ROBERT W. JOHNSON
Robert W. Johnson |
Director | February 7, 2002 | ||
| /s/ B. ALLEN LAY
B. Allen Lay |
Director | February 7, 2002 | ||
| /s/ JEFFREY M. NASH
Jeffrey M. Nash |
Director | February 7, 2002 | ||
| /s/ ADM. WILLIAM A. OWENS (RET.)
Adm. William A. Owens (Ret.) |
Director | February 7, 2002 |
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EXHIBIT INDEX
| EXHIBIT | ||
| 5.1 | Opinion of Latham & Watkins.* | |
| 10.1 | Amended and Restated U.S Monolithics, L.L.C. 2000 Incentive Plan.* | |
| 23.1 | Consent of PricewaterhouseCoopers LLP.* | |
| 23.2 | Consent of Nelson Lambson & Co., PLC.* | |
| 23.3 | Consent of Latham & Watkins (included in Exhibit 5.1 hereto).* | |
| 24.1 | Power of Attorney (included on signature page hereto).* |
| * | Filed herewith. |
EXHIBIT 5.1 OPINION OF LATHAM & WATKINS February 7, 2002 FILE NO. 021038-0027 ViaSat, Inc. 6155 El Camino Real Carlsbad, California 92009 Re: Form S-8 Registration Statement; 203,000 Shares of Common Stock Ladies and Gentlemen: In connection with the registration by ViaSat, Inc., a Delaware corporation (the "Company"), of 203,000 shares of common stock, par value $.0001 per share (the "Shares"), of the Company to be issued pursuant to the Amended and Restated U.S. Monolithics, L.L.C. 2000 Incentive Plan (the "Plan"), under the Securities Act of 1933, as amended, on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the "Commission") on February 7, 2002 (as amended from time to time, the "Registration Statement"), you have requested our opinion with respect to the matters set forth below. In our capacity as the Company's counsel in connection with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company in connection with the authorization, issuance and sale of the Shares, and for the purposes of this opinion, have assumed such proceedings will be timely completed in the manner presently proposed. In addition, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. We are opining herein as to the effect on the subject transaction only of the General Corporation Law of the State of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or any other laws, or as to any matters of municipal law or the laws of any other local agencies within the state. Subject to the foregoing, it is our opinion that as of the date hereof the Shares have been duly authorized, and, upon the issuance of and payment for the Shares in accordance with the terms set forth in the Plan, the Shares will be validly issued, fully paid and nonassessable. We consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ LATHAM & WATKINS
EXHIBIT 10.1 AMENDED AND RESTATED U.S. MONOLITHICS, L.L.C. 2000 INCENTIVE PLAN ARTICLE 1: PURPOSE 1.1 GENERAL. The U.S. Monolithics, L.L.C. 2000 Unit Incentive Plan (the "USM Plan") was originally adopted by U.S. Monolithics, L.L.C. ("USM") for the benefit of its eligible employees. ViaSat, Inc., a Delaware corporation (the "Company") purchased all of the outstanding equity securities of USM and in such transaction assumed the USM Plan and the options granted thereunder. Pursuant to such assumption, all options granted under the USM Plan were converted into options to purchase Common Stock of the Company. The purpose of the Company's assumption of the USM Plan and of the Plan is to promote the success, and enhance the value, of the Company by linking the personal interests of the employees of, and consultants and advisors to, the Company and the Company's Subsidiaries such as USM to those of the Company and by providing such individuals with an incentive for outstanding performance. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of employees of, and consultants and advisors to, the Company and its Subsidiaries, including USM upon whose judgment, interest, and special effort the successful conduct of the Company's operation is largely dependent. ARTICLE 2: EFFECTIVE DATE 2.1 EFFECTIVE DATE. The Plan was originally effective as of August 1, 2000. This amendment and restatement of the Plan is effective as of January 4, 2002. ARTICLE 3: DEFINITIONS AND CONSTRUCTION 3.1 DEFINITIONS. When a word or phrase appears in this Plan with the initial letter capitalized, and the word or phrase does not commence a sentence, the word or phrase shall generally be given the meaning ascribed to it in this Section or in Section 1.1 unless a clearly different meaning is required by the context. The following words and phrases shall have the following meanings: (a) "Award" means any Option or Restricted Common Stock Award granted to a Participant under the Plan. (b) "Award Agreement" means any written agreement, contract, or other instrument or document evidencing an Award. (c) "Cause" means (except as otherwise provided in an Award Agreement) if the Committee, in its reasonable and good faith discretion, determines that the employee, consultant, or advisor (i) has developed or pursued interests substantially adverse to the Company, (ii) materially breached any employment, engagement, or confidentiality agreement or otherwise failed to satisfactorily discharge his or her duties, (iii) has not devoted all or substantially all of his or her business time, effort and attention to the affairs of the Company (or such lesser amount pursuant to the Participant's position or as
agreed to by the Company), (iv) is convicted of a felony involving moral turpitude, or (v) has engaged in activities or omissions that are detrimental to the well-being of the Company. (d) "Change of Control" means any of the following: (1) any merger of the Company in which the Company is not the continuing or surviving entity, or pursuant to which Common Stock would be converted into cash, securities, or other property other than a merger of the Company in which the holders of the Common Stock immediately prior to the merger have the same proportionate ownership of beneficial interest of Common Stock or other voting securities of the surviving entity immediately after the merger; (2) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of assets or earning power aggregating more than 50% of the assets or earning power of the Company and its subsidiaries (taken as a whole), other than pursuant to a sale-leaseback, structured finance or other form of financing transaction; (3) the shareholders of the Company approve any plan or proposal for liquidation or dissolution of the Company; or (4) any person (as such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), other than the Company or affiliate thereof or any employee benefit plan of the Company or any subsidiary of the Company or any entity holding equity securities of the Company for or pursuant to the terms of any such employee benefit plan in its role as an agent or trustee for such plan, shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of 50% or more of the Company's outstanding voting equity securities. (e) "Code" means the Internal Revenue Code of 1986, as amended. (f) "Committee" means the Compensation Committee of the Board of Directors of the Company. (g) "Common Stock" means shares of common stock, par value $.0001 per share, of the Company. (h) "Disability" shall mean any illness or other physical or mental condition of a Participant which renders the Participant incapable of performing his customary and usual duties for the Company, or any medically determinable illness or other physical or mental condition resulting from a bodily injury, disease or mental disorder which in the judgment of the Committee is permanent and continuous in nature. The Committee may require such medical or other evidence, as it deems necessary to judge the nature and permanency of the Participant's condition. 2
(i) "Fair Market Value" of a share of Common Stock as of a given date shall be (i) the closing price of a share of Common Stock on the principal exchange on which shares of Common Stock are then trading, if any (or as reported on any composite index which includes such principal exchange), on the trading day previous to such date, or if shares were not traded on the trading day previous to such date, then on the next preceding date on which a trade occurred, or (ii) if Common Stock is not traded on an exchange but is quoted on NASDAQ or a successor quotation system, the mean between the closing representative bid and asked prices for the Common Stock on the trading day previous to such date as reported by NASDAQ or such successor quotation system; or (iii) if Common Stock is not publicly traded on an exchange and not quoted on NASDAQ or a successor quotation system, the Fair Market Value of a share of Common Stock as established by the Committee acting in good faith. (j) "Option" means a right granted to a Participant under Article 7 of the Plan to purchase Common Stock at a specified price during specified time periods. (k) "Participant" means a person who, as an employee of, or a consultant or advisor to, the Company or any Subsidiary, has been granted an Award under the Plan. (l) "Restricted Common Stock Award" means Common Stock granted to a Participant under Article 8 that are subject to certain restrictions. (m) "Plan" means the Amended and Restated U.S. Monolithics, L.L.C. 2000 Incentive Plan. (n) "Subsidiary" means any corporation of which a majority of the outstanding voting power is beneficially owned directly or indirectly by the Company. ARTICLE 4: ADMINISTRATION 4.1 COMMITTEE. The Plan shall be administered by the Committee. 4.2 ACTION BY THE COMMITTEE. A majority of the Committee shall constitute a quorum. The acts of a majority of the Committee present at any meeting at which a quorum is present and acts approved in writing and signed by all members of the Committee in lieu of a meeting shall be deemed the acts of the Committee. The Committee is entitled to, in good faith, rely or act upon any report or other information furnished to the Committee by any other employee of the Company or any Subsidiary, the Company's independent certified public accountants, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan. 4.3 AUTHORITY OF COMMITTEE. The Committee has the exclusive power, authority and discretion to: (a) Designate Participants to receive Awards; (b) Determine the type or types of Awards to be granted to each Participant; 3
(c) Determine the number of Awards to be granted and the number of shares of Common Stock to which an Award will relate; (d) Determine the terms and conditions of any Award granted under the Plan including but not limited to, the exercise price, grant price, or purchase price, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, based in each case on such considerations as the Committee in its sole discretion determine; (e) Amend, modify, or terminate any outstanding Award with the Participant's consent unless the Committee has the authority to amend, modify, or terminate an Award without the Participant's consent under any other provision of the Plan; (f) Determine whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in, cash, or other property, or an Award may be canceled, forfeited, or surrendered; (g) Prescribe the form of each Award Agreement, which need not be identical for each Participant; (h) Decide all other matters that must be determined in connection with the Plan and an Award; (i) Establish, adopt, or revise any rules and regulations as it may deem necessary or advisable to administer the Plan; and (j) Make all other decisions and determinations that may be required under the Plan or as the Committee deems necessary or advisable to administer the Plan. 4.4 DECISIONS BINDING. The Committee's interpretation of the Plan, any Awards granted under the Plan, any Award Agreement and all decisions and determinations by the Committee with respect to the Plan are final, binding, and conclusive on all parties. ARTICLE 5: COMMON STOCK SUBJECT TO THE PLAN 5.1 NUMBER OF SHARES. Subject to adjustment provided in Section 10.1, the aggregate number of shares of Common Stock reserved and available for grant under the Plan shall be 203,000. 5.2 LAPSED AWARDS. To the extent that an Award terminates, expires, or lapses for any reason, any Common Stock subject to the Award will again be available for the grant of an Award under the Plan will be available for the grant of an Award under the Plan. ARTICLE 6: ELIGIBILITY AND PARTICIPATION 6.1 ELIGIBILITY. 4
(a) GENERAL. Persons eligible to participate in this Plan include all employees of, and consultants and advisors to, the Company or a Subsidiary, as determined by the Committee. (b) FOREIGN PARTICIPANTS. In order to assure the viability of Awards granted to Participants employed in foreign countries, the Committee may provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy, or custom. Moreover, the Committee may approve such supplements to, or amendments, restatements, or alternative versions of the Plan as it may consider necessary or appropriate for such purposes without thereby affecting the terms of the Plan as in effect for any other purpose; provided, however, that no such supplements, amendments, restatements, or alternative versions shall increase the share limitations contained in Section 5.1 of the Plan. 6.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the Committee may, from time to time, select from among all eligible individuals, those to whom Awards shall be granted and shall determine the nature and amount of each Award. No individual shall have any right to be granted an Award under this Plan. ARTICLE 7: OPTIONS 7.1 GENERAL. The Committee is authorized to grant Options to purchase Common Stock to Participants on the following terms and conditions: (a) EXERCISE PRICE. The exercise price per share of Common Stock under an Option shall be determined by the Committee and set forth in the Award Agreement. It is the intention under the Plan that the exercise price for any Option shall not be less than the Fair Market Value as of the date of grant; provided, however that the Committee may, in its discretion, grant an Option with an exercise price per share of Common Stock of less than Fair Market Value on the date of grant. (b) TIME AND CONDITIONS OF EXERCISE. The Committee shall determine the time or times at which an Option may be exercised in whole or in part. The Committee shall also determine the performance or other conditions, if any, that must be satisfied before all or part of an Option may be exercised. (c) PAYMENT. The Committee shall determine the methods by which the exercise price of an Option may be paid, the form of payment, including, without limitation, cash, promissory note, or other property and the methods by which Common Stock shall be delivered or deemed to be delivered to Participants. (d) EVIDENCE OF GRANT. All Options shall be evidenced by a written Award Agreement between the Company and the Participant. The Award Agreement shall include such additional provisions as may be specified by the Committee. 5
ARTICLE 8: RESTRICTED COMMON STOCK AWARDS 8.1 GRANT OF RESTRICTED COMMON STOCK. The Committee is authorized to make Restricted Common Stock Awards to Participants in such amounts and subject to such terms and conditions as may be selected by the Committee. All Restricted Common Stock Awards shall be evidenced by a Restricted Common Stock Award agreement. 8.2 ISSUANCE AND RESTRICTIONS. Common Stock granted under this Article 8 shall be subject to such restrictions on transferability and other restrictions as the Committee may impose (including, without limitation, limitations on the right to vote). These restrictions may lapse separately or in combination at such times, under such circumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Restricted Common Stock Award or thereafter. 8.3 FORFEITURE. Except as otherwise determined by the Committee at the time of the grant of the Restricted Common Stock Award or thereafter, upon termination of employment during the applicable restriction period for any reason, the shares of Common Stock that are at that time subject to restrictions will be forfeited; provided, however, that the Committee may provide in any Restricted Common Stock Award Agreement that restrictions or forfeiture conditions relating to such Common Stock will be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part restrictions or forfeiture conditions relating to such Common Stock. 8.4 LEGEND. In order to enforce the restrictions imposed upon shares of Restricted Common Stock Awards hereunder, the Committee shall cause a legend or legends to be placed on certificates representing all shares of Restricted Common Stock Awards that are still subject to restrictions under Restricted Common Stock Award agreements, which legend or legends shall make appropriated reference to the conditions imposed thereby. ARTICLE 9: PROVISIONS APPLICABLE TO AWARDS 9.1 STAND-ALONE AND TANDEM AWARDS. Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to or in tandem with any other Award granted under the Plan. Awards granted in addition to or in tandem with other Awards may be granted either at the same time as or at a different time from the grant of such other Awards. 9.2 EXCHANGE PROVISIONS. The Committee may at any time offer to exchange or buy out any previously granted Award for a payment in cash, Common Stock, or another Award (subject to Section 9.1), based on the terms and conditions the Committee determines and communicates to the Participant at the time the offer is made. 9.3 TERM OF AWARD. The term of each Award shall be for the period as determined by the Committee. 9.4 FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and any applicable law or Award Agreement, payments or transfers to be made by the Company or a Subsidiary on the grant or exercise of an Award may be made in such forms as the Committee 6
determines at or after the time of grant, including without limitation, cash, promissory note, other Awards, or other property, or any combination, and may be made in a single payment or transfer, in installments, or on a deferred basis, in each case determined in accordance with rules adopted by, and at the discretion of, the Committee. 9.5 LIMITS ON TRANSFER. No right or interest of a Participant in any Award may be pledged, encumbered, or hypothecated to or in favor of any party other than the Company or a Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any other party other than the Company or a Subsidiary. Except as otherwise provided by the Committee or as otherwise provided in this Plan or in the applicable Award Agreement, no Award shall be assignable or transferable by a Participant other than by will or the laws of descent and distribution. 9.6 BENEFICIARIES. Notwithstanding Section 9.5, a Participant may, in the manner determined by the Committee, designate a beneficiary to exercise the rights of the Participant and to receive any distribution with respect to any Award upon the Participant's death. A beneficiary, legal guardian, legal representative, or other person claiming any rights under the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable to the Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any additional restrictions deemed necessary or appropriate by the Committee. If the Participant is married, a designation of a person other than the Participant's spouse as his beneficiary with respect to more than 50% of the Participant's interest in the Award shall not be effective without the written consent of the Participant's spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to the person entitled thereto under the Participant's will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided the change or revocation is filed with the Committee. 9.7 ACCELERATION UPON A CHANGE OF CONTROL. If a Change of Control occurs, all outstanding Awards shall become fully exercisable and all restrictions on outstanding Awards shall lapse. Upon, or in anticipation of, such an event, the Committee may cause every Award outstanding hereunder to terminate at a specific time in the future and shall give each Participant the right to exercise Awards during a period of time as the Committee, in its sole and absolute discretion, shall determine. ARTICLE 10: CHANGES IN CAPITAL STRUCTURE 10.1 GENERAL. In the event the Common Stock shall be changed into or exchanged for a different number or class of stock or other equity instrument, or of another corporation, whether through reorganization, recapitalization, split-up, combination, merger, or consolidation, the Committee has the authority to substitute for each such share of Common Stock then subject to each Award the number and class of stock into which each outstanding share of Common Stock shall be so exchanged, all without any change in the aggregate purchase price for the Common Stock then subject to each Award. 7
ARTICLE 11: AMENDMENT, MODIFICATION AND TERMINATION 11.1 AMENDMENT, MODIFICATION AND TERMINATION. With the approval of the Board of Directors of the Company, at any time and from time to time, the Committee may terminate, amend or modify the Plan; provided, however, that to the extent necessary and desirable to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtain shareholder approval of any Plan amendment in such a manner and to such a degree as required. 11.2 AWARDS PREVIOUSLY GRANTED. No termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the written consent of the Participant. ARTICLE 12: GENERAL PROVISIONS 12.1 NO RIGHTS TO AWARDS. No Participant, employee, or other person shall have any claim to be granted any Award under the Plan, and neither the Company nor the Committee is obligated to treat Participants, employees, and other persons uniformly. 12.2 NO STOCKHOLDER RIGHTS. No Award gives the Participant any of the rights of a stockholder of the Company unless and until Common Stock is in fact issued to such person in connection with such Award. 12.3 WITHHOLDING. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant's FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of this Plan. 12.4 NO RIGHT TO EMPLOYMENT. Nothing in the Plan or any Award Agreement shall interfere with or limit in any way the right of the Company or any Subsidiary to terminate any Participant's employment at any time, nor confer upon any Participant any right to continue in the employ of the Company or any Subsidiary. 12.5 UNFUNDED STATUS OF AWARDS. The Plan is intended to be an "unfunded" plan for incentive compensation. With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give the Participant any rights that are greater than those of a general creditor of the Company or any Subsidiary. 12.6 INDEMNIFICATION. To the extent allowable under applicable law, each member of the Committee or of the Board of Directors of the Company shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action or failure to act under the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or proceeding against him or her provided he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own 8
behalf. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company's Certificate of Incorporation or By-Laws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. 12.7 RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary. 12.8 EXPENSES. The expenses of administering the Plan shall be borne by the Company and its Subsidiaries. 12.9 TITLES AND HEADINGS. The titles and headings of the Sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. 12.10 FRACTIONAL SHARES. No fractional shares of Common Stock shall be issued and the Committee shall determine, in its discretion, whether cash shall be given in lieu of fractional shares or whether such fractional shares shall be eliminated by rounding up or down as appropriate. 12.11 SECURITIES LAW COMPLIANCE. With respect to any person who is, on the relevant date, obligated to file reports under Section 16 of the Exchange Act, transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent any provision of the Plan or action by the Committee fails to so comply, it shall be void to the extent permitted by law and voidable as deemed advisable by the Committee. 12.12 GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to make payment of awards in Common Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by government agencies as may be required. The Company shall be under no obligation to register under the Securities Act, any of the shares of Common Stock paid under the Plan. If the shares paid under the Plan may in certain circumstances be exempt from registration under the Securities Act, the Company may restrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. 12.13 GOVERNING LAW. The Plan and all Award Agreements shall be construed in accordance with and governed by the laws of the State of Arizona. 9
EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 15, 2001, except for Note 14 for which the date is June 21, 2001 relating to the financial statements and financial statement schedule of ViaSat, Inc., which appears in ViaSat, Inc.'s Annual Report on Form 10-K/A Amendment No. 1 for the year ended March 31, 2001. /s/ PRICEWATERHOUSECOOPERS LLP San Diego, California February 6, 2002
EXHIBIT 23.2 INDEPENDENT AUDITOR'S CONSENT We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 12, 2001 relating to the financial statements of U.S. Monolithics, L.L.C. for the years ended December 31, 2000 and 1999, which appears in ViaSat, Inc.'s Current Report on Form 8-K dated December 12, 2001. /s/ Nelson Lambson & Co., PLC Mesa, Arizona February 6, 2002