Securities Registration: Employee Benefit Plan (s-8)
March 24 2020 - 3:34PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 24, 2020.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Vivint Smart Home, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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98-1380306
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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4931 North 300 West
Provo, Utah 84604
(801) 377-9111
(Address, including zip code, and telephone number, including area code, of
registrants principal executive offices)
Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan
(Full title of the Plan)
Shawn J. Lindquist
Chief Legal Officer
Vivint Smart Home, Inc.
4931 North 300 West
Provo, Utah 84604
(801) 377-9111
(Name and address and telephone number, including area code, of agent for service)
With copies of all notices, orders and communications to:
Igor Fert, Esq.
Simpson
Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated
filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be
registered
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Proposed
maximum
offering price
per share(3)
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Proposed
maximum
aggregate
offering price(3)
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Amount of
registration fee
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Class A Common Stock, par value $0.0001 per
share (1) (2)
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34,250,000
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$9.98
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$341,815,000
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$44,368
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(1)
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Covers Class A Common Stock, par value $0.0001 per share (the Common Stock) of Vivint Smart
Home, Inc. (the Company or the Registrant) issuable under the Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan (the 2020 Omnibus Plan).
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this
Registration Statement also covers any additional shares of Common Stock that may become issuable in respect of the securities identified in the table above under the 2020 Omnibus Incentive Plan, effective as of January 17, 2020, by reason of
any stock dividend, stock split, recapitalization, merger, consolidation, reorganization, or other similar transaction which results in an increase in the number of outstanding shares of Common Stock.
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(3)
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Pursuant to Rule 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share, the
proposed maximum aggregate offering price and the amount of the registration fee have been computed on the basis of the average of the high and low prices per share of the Companys Common Stock reported on the New York Stock Exchange on
March 20, 2020.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration
Statement on Form S-8 (the Registration Statement) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the Securities Act), and the introductory
note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the 2020 Omnibus Plan
covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the Commission) either as part of this
Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents filed with the Commission by Vivint Smart Home, Inc. (the Registrant) pursuant to the Securities Act and the Securities
Exchange Act of 1934, as amended (the Exchange Act), are hereby incorporated by reference in this Registration Statement:
(a)
The Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the
Commission on March 13, 2020;
(b) The Registrants Current Reports on Form 8-K and Form 8-K/A, as applicable, filed with the Commission on January
16, 2020, January 24, 2020 (except with respect to the information furnished pursuant to Item 7.01 in the first Current Report on Form 8-K filed on such date), January
27, 2020, February 19, 2020, March 3, 2020
(except with respect to the information furnished pursuant to Item 7.01 thereof) and March 13, 2020; and
(c)
The description of shares of Common Stock contained in the Registration Statement on Form 8-A filed on
October 17, 2017, including any amendments or reports filed for the purpose of updating such description.
All other reports and other documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities then remaining unsold (other than information deemed to have been furnished rather than filed in accordance with the SECs rules), shall be
deemed to be incorporated by reference into this Registration Statement and to be a part of this Registration Statement from the date of the filing of such reports and documents.
For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the DGCL) provides that a corporation may indemnify directors
and officers as well as other employees and individuals against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened,
pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent of the Registrant. The DGCL provides that Section 145 is not
exclusive of other rights to which those seeking indemnification may be entitled under any bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The Registrants certificate of incorporation and bylaws provide for
indemnification by the Registrant of its directors and officers to the fullest extent permitted by the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the directors duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions or
(4) for any transaction from which the director derived an improper personal benefit. The Registrants certificate of incorporation provides for such limitation of liability to the fullest extent permitted by the DGCL.
The Registrant has entered into indemnification agreements with each of its directors and executive officers to provide contractual
indemnification in addition to the indemnification provided in its certificate of incorporation. Each indemnification agreement provides for indemnification and advancements by the Registrant of certain expenses and costs relating to claims, suits
or proceedings arising from his or her service to the Registrant or, at the Registrants request, service to other entities, as officers or directors to the maximum extent permitted by applicable law. The Registrant believes that
these provisions and agreements are necessary to attract qualified directors.
The Registrant also maintains standard policies of
insurance under which coverage is provided (1) to its directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors
and officers of the Registrant, and (2) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to any indemnification provision contained in the
Registrants certificate of incorporation and bylaws or otherwise as a matter of law.
The foregoing summaries are necessarily subject to the
complete text of the statute, the Registrants certificate of incorporation and bylaws, as amended to date, and the arrangements referred to above and are qualified in their entirety by reference thereto.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.
The following exhibits are filed as part of this Registration Statement:
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Exhibit
No.
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Document
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4.1
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Amended and
Restated Certificate of Incorporation of Vivint Smart Home, Inc., dated as of January 17, 2020 (incorporated by reference to Exhibit 3.1 filed with the Registrants Current Report on Form 8-K/A filed by the Registrant on January 27, 2020).
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4.2
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Certificate of Amendment to Certificate of Incorporation of Vivint Smart Home, Inc., dated as of January
17, 2020 (incorporated by reference to Exhibit 3.2 filed with the Registrants Current Report on Form 8-K/A filed by the Registrant on January 27, 2020).
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4.3
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Amended and Restated Bylaws of Vivint Smart Home, Inc., dated as of January
17, 2020 (incorporated by reference to Exhibit 3.3 filed with the Registrants Current Report on Form 8-K/A filed by the Registrant on January 27, 2020).
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4.4
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Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan
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5.1
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Opinion of Simpson Thacher & Bartlett LLP
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23.1
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Consent of WithumSmith+Brown, PC
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23.2
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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23.3
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Consent of Simpson Thacher & Bartlett LLP (included as part of Exhibit 5.1)*
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24.1
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Power of Attorney (included in the signature page to this Registration Statement)
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; 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) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in this 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 registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Floyds Knobs, State of Indiana on
this 24th day of March, 2020.
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VIVINT SMART HOME, INC.
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By:
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/s/ Dale R. Gerard
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Name:
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Dale R. Gerard
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Title:
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Chief Financial Officer
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POWER OF ATTORNEY
Each of the undersigned, whose signature appears below, hereby constitutes and appoints Dale R. Gerard, Todd R. Pedersen and Shawn J. Lindquist, and each of
them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments to this registration statement and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this registration
statement or any amendments hereto in the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has
been signed by the following persons in the capacities indicated below on March 24, 2020.
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/s/ Todd R. Pedersen
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/s/ Dale R. Gerard
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Todd R. Pedersen
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Dale R. Gerard
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Chief Executive Officer and Director
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Chief Financial Officer
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(Principal Executive Officer)
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(Principal Financial Officer)
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/s/ Patrick E. Kelliher
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/s/ David F. DAlessandro
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Patrick E. Kelliher
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David F. DAlessandro
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(Principal Accounting Officer)
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Director
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/s/ Paul S. Galant
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/s/ David M. Maura
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Paul S. Galant
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David M. Maura
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Director
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Director
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/s/ Bruce McEvoy
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/s/ Jay D. Pauley
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Bruce McEvoy
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Jay D. Pauley
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Director
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Director
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/s/ Joseph S. Tibbetts, Jr.
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/s/ Peter F. Wallace
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Joseph S. Tibbetts, Jr.
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Peter F. Wallace
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Director
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Director
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