As filed with the Securities and Exchange Commission on August 25, 2014
Registration No. 333-197660
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIRGIN AMERICA INC.
(Exact name of registrant as specified in its charter)
| Delaware | 4512 | 20-1585173 | ||
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
555 Airport Boulevard
Burlingame, California 94010
(650) 762-7000
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
C. David Cush
President and Chief Executive Officer
Virgin America Inc.
555 Airport Boulevard, Burlingame, California 94010
(650) 762-7000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies To:
Tad J. Freese Robert W. Phillips Latham & Watkins LLP 140 Scott Drive Menlo Park, California 94025 (650) 328-4600 | John J. Varley Senior Vice President and General Counsel Virgin America Inc. 555 Airport Boulevard Burlingame, California 94010 (650) 762-7000 | Alan F. Denenberg Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, California 94025 (650) 752-2000 |
Approximate date of commencement of the proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
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, check the following box.¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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 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 this Form is a post-effective amendment filed pursuant to Rule 462(d) 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.¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | Accelerated filer¨ | |||
| Non-accelerated filerx | (Do not check if a smaller reporting company) | Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
| ||||
Title of Each Class of Securities to be Registered | Proposed Maximum Aggregate Offering Price (1) | Amount of Registration Fee | ||
Common Stock, par value $0.01 per share | $ 115,000,000 | $ 14,812 (2) | ||
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| (1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
| (2) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to Form S-1 Registration Statement (Registration No. 333-197660) of Virgin America Inc. is being filed solely to include exhibits to the Registration Statement not previously filed. Accordingly, Part I, the form of prospectus, has been omitted from this filing.
PART II
| Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses, other than underwriting discounts, payable in connection with the sale and distribution of the securities being registered. All amounts are estimated except the SEC registration fee and the FINRA filing fee. All the expenses below will be paid by Virgin America.
Item | Amount | |||
SEC Registration fee | $ | 14,812 | ||
FINRA filing fee | 17,750 | |||
Initial listing fee | * | |||
Legal fees and expenses | * | |||
Accounting fees and expenses | * | |||
Printing and engraving expenses | * | |||
Transfer Agent and Registrar fees | * | |||
Blue Sky fees and expenses | * | |||
Miscellaneous fees and expenses | * | |||
|
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Total | $ | * | ||
|
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| * | To be provided by amendment. |
| Item 14. | Indemnification of Directors and Officers |
Virgin America Inc. is a Delaware corporation. Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act of 1933, as amended. Our amended and restated certificate of incorporation to be in effect upon the completion of this offering provides for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law, and our amended and restated bylaws to be in effect upon the completion of this offering provide for indemnification of our directors, officers, employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, we have entered into indemnification agreements with our directors, officers and some employees containing provisions which are in some respects broader than the specific indemnification provisions contained in the Delaware General Corporation Law. The indemnification agreements may require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. Reference is also made to Section of the underwriting agreement to be filed as Exhibit 1.1 hereto, which provides for indemnification by the underwriters of our officers and directors against certain liabilities.
| Item 15. | Recent Sales of Unregistered Securities |
During the last three years, the Company made sales of the following unregistered securities:
Warrant Agreements
In December 2011, the Company entered into warrant agreements with the Virgin Group and Cyrus Capital, pursuant to which it granted to the Virgin Group and Cyrus Capital warrants to purchase an aggregate of 19,250,000 shares of Virgin America common stock at an exercise price of $3.50 per share. The warrants expire in December 2041 and are only exercisable after they have been transferred in specified circumstances (provided
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that any exercise thereafter would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens), or in connection with the settlement of such warrants to an underwriter in connection with a public offering.
In November 2012, the Company entered into warrant agreements with Frederick Reid, who served as the Company’s first Chief Executive Officer until December 2007, and Joyce Reid, his spouse, pursuant to which the Company granted to them warrants to purchase an aggregate of 175,000 shares of common stock at an exercise price of $5.00 per share and warrants to purchase an aggregate of 550,000 shares of common stock at an exercise price of $10.00 per share. Half of the shares under each of these warrants vested immediately, and the other half vests upon the occurrence of a liquidity event, including a public offering, subject to certain conditions. The warrants expire on January 12, 2040 or immediately after the earlier closing of a liquidity event, including a public offering, and are exercisable only upon the occurrence of a liquidity event, including a public offering, provided that any exercise would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens.
In May 2013, in connection with the cancellation of a portion of the Company’s then outstanding related-party debt, the Company entered into warrant agreements with the Virgin Group and Cyrus Capital pursuant to which it granted (i) warrants to purchase an aggregate of 12,244,558 shares of Virgin America common stock at an exercise price of $2.50 per share to Cyrus Capital, (ii) warrants to purchase an aggregate of 155,455,440 shares of Virgin America common stock at an exercise price of $2.50 per share to the Virgin Group, and (iii) warrants to purchase an aggregate of 7,446,931 shares of Virgin America common stock at an exercise price of $0.01 per share to the Virgin Group. The warrants expire in May 2043 and are only exercisable after they have been transferred in specified circumstances (provided that any exercise thereafter would not violate any U.S. statute or regulation concerning the ownership and control of a U.S. airline by non-U.S. citizens) or in connection with the settlement of such warrants to an underwriter in connection with a public offering.
Note Purchase Agreements
In December 2011, the Company issued $150.0 million of senior secured notes to the Virgin Group and Cyrus Capital. In May 2013, the Virgin Group transferred the notes it acquired to Cyrus Capital. The notes purchased bear interest at a rate of 17.0% per annum, of which 8.5% is payable quarterly in arrears, and 8.5% is compounded annually. The principal and accrued interest on the notes become due on June 9, 2016 if not earlier repaid or redeemed. The notes are redeemable at the Company’s option at any time and at the lenders’ option upon a change of control or certain qualified sales. The Company is also required to redeem the notes upon the incurrence of any senior debt. The notes are secured by substantially all of the Company’s assets.
In May 2013, the Company issued $75.0 million of senior secured notes to the Virgin Group and Cyrus Capital. The notes bear interest at a rate of 17.0% per annum, compounded annually. The principal and accrued interest on the notes become due on June 9, 2016 if not earlier repaid or redeemed. The notes are redeemable at the Company’s option at any time and at the lenders’ option upon a change of control or certain qualified sales. The Company is also required to redeem the notes upon the incurrence of any senior debt. The notes are secured by substantially all of the Company’s assets.
Equity Awards
From January 1, 2011 through March 31, 2014, the Company issued and sold an aggregate of 7,742 shares of common stock upon the exercise of options issued to employees under the Company’s 2005 Stock Incentive Plan at a weighted-average exercise price of $1.72 per share for aggregate cash consideration of approximately $13,300.
From January 1, 2011 through March 31, 2014, the Company granted options to employees under the 2005 Stock Incentive Plan with respect to an aggregate of 7,044,760 shares of common stock, at a weighted-average exercise price of $2.01 per share.
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Unless otherwise stated, the sales of the above securities were deemed to be exempt from registration under the Securities Act in reliance upon Sections 3(a)(9) or 4(a)(2) of the Securities Act or Regulation D or Regulation S promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or pursuant to benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. All recipients had adequate access, through their relationships with Virgin America, to information about Virgin America.
There were no underwriters employed in connection with any of the transactions set forth in Item 15.
| Item 16. | Exhibits and Financial Statements |
See the Exhibit Index, which follows the signature pages hereto and is incorporated herein by reference.
| Item 17. | Undertakings |
The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the Securities Act, 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, 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;
(3) for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser; and
(4) the undersigned will provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
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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 provisions described in Item 14, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, we have duly caused this Registration Statement on FormS-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Burlingame, State of California, on the 25th day of August, 2014.
| VIRGIN AMERICA INC. | ||
| By: | /s/ John J. Varley | |
| John J. Varley | ||
| Senior Vice President and General Counsel | ||
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
* C. David Cush | President and Chief Executive Officer (principal executive officer and Director) | August 25, 2014 | ||
* Peter D. Hunt | Senior Vice President & Chief Financial Officer (principal financial and accounting officer) | August 25, 2014 | ||
* Donald J. Carty | Director and Chairman of the Board | August 25, 2014 | ||
* Samuel K. Skinner | Director and Vice Chairman of the Board | August 25, 2014 | ||
* Cyrus F. Freidheim, Jr. | Director | August 25, 2014 | ||
* Stephen C. Freidheim | Director | August 25, 2014 | ||
* Evan M. Lovell | Director | August 25, 2014 | ||
* Robert A. Nickell | Director | August 25, 2014 | ||
* John R. Rapaport | Director | August 25, 2014 | ||
* Stacy J. Smith | Director | August 25, 2014 | ||
| By: | /s/ John J. Varley | |
| John J. Varley | ||
| Attorney-in-Fact | ||
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EXHIBIT INDEX
Exhibit | Description of Exhibit | |
| 1.1* | Form of Underwriting Agreement | |
| 3.1** | Amended and Restated Certificate of Incorporation of Virgin America Inc. | |
| 3.2* | Form of Amended and Restated Certificate of Incorporation of Virgin America Inc., to be in effect upon completion of the offering | |
| 3.3** | Amended and Restated Bylaws of Virgin America Inc. | |
| 3.4* | Form of Amended and Restated Bylaws of Virgin America Inc., to be in effect upon completion of the offering | |
| 4.1* | Specimen Common Stock Certificate | |
| 5.1* | Opinion of Latham & Watkins LLP | |
| 10.1† | General Terms Agreement No. CFM-04-0012B, dated as of June 14, 2004, between Best Air Holdings, Inc. and CFM International, Inc., as amended by Amendment No. 1, dated November 18, 2005, and as supplemented by Letter Agreement No. 1 dated June 14, 2004 (as amended by Amendment No. 1 to Letter Agreement No. 1, dated October 10, 2005, Amendment No. 2 to Letter Agreement No. 1, dated August 2, 2006, Amendment No. 3 to Letter Agreement No. 1, dated October 8, 2010 and Amendment No. 4 to Letter Agreement No. 1, dated December 29, 2010), Letter Agreement No. 2-2 dated November 1, 2013, Letter Agreement No. 4 dated November 9, 2010, Letter Agreement No. 5 dated April 18, 2011 (as amended by Amendment No. 1 to Letter Agreement No. 5, dated December 20, 2012) and Letter Agreement No. 6 dated October 3, 2011 (as amended by Amendment No. 1 to Letter Agreement No. 6, dated December 20, 2012) | |
| 10.2† | Amended and Restated Engine Services Agreement, dated as of October 22, 2008, between Virgin America Inc. and GE Engine Services, Inc., as amended by Amendment No. 1, dated July 24, 2009, Amendment No. 2, dated November 29, 2010, Amendment No. 3, dated March 21, 2011, Amendment No. 4, dated April 18, 2011 and Amendment No. 5, dated January 8, 2013. | |
| 10.3† | Rate Per Flight Hour Agreement for Engine Shop Maintenance Services, dated as of October 1, 2011, between Virgin America Inc. and CFM International, Inc., as amended by Amendment No. 1, dated December 20, 2012 | |
| 10.4† | Signatory Agreement, dated as of November 5, 2009, between Virgin America Inc. and U.S. Bank National Association, as amended by First Amendment, effective as of July 25, 2013 and Second Amendment, dated February 3, 2014 | |
| 10.5† | Signatory Agreement, dated as of August 14, 2012 between Virgin America Inc. and Elavon Financial Services Limited | |
| 10.6† | Signatory Agreement, dated as of June 1, 2010 between Virgin America Inc. and U.S. Bank National Association | |
| 10.7† | Signatory Agreement, dated as of June 1, 2010 between Virgin America Inc. and Elavon Canada Company | |
| 10.8† | Payment Processing Support Services Agreement, dated as of January 20, 2014 by and between Elavon, Inc. and Virgin America Inc. | |
| 10.9* | Amended and Restated Purchase Agreement Assignment and Security Agreement (Virgin America PDP), dated as of December 14, 2012, between Virgin America Inc. and Bank of Utah, not in its individual capacity, except as expressly stated therein, but solely as security trustee thereunder | |
| 10.10* | Amended and Restated Credit Agreement (Virgin America PDP), dated as of December 14, 2012, among Virgin America Inc., Bank of Utah, as security trustee and certain other parties thereto | |
| 10.11* | Co-Brand Credit Card Program Agreement, dated as of May 16, 2013, by and between Virgin America Inc. and Comenity Capital Bank | |
Exhibit | Description of Exhibit | |
| 10.12 | Trade Mark License Agreement, dated as of April 9, 2007, by and among Virgin America Inc., VAL Trademark Three Limited and Virgin Enterprises Limited, as amended by Amendment No. 1 dated March 1, 2013 | |
| 10.13** | Trade Mark License Agreement, dated as of November 24, 2008, by and among Virgin America Inc., Virgin Enterprises Limited, Virgin Money Investment Holdings Limited and Virgin Money Investment Group Limited | |
| 10.14 | Office Lease Agreement, dated as of December 9, 2005, between CA-Bay Park Plaza Limited Partnership and Virgin America Inc., as amended by First Amendment, dated as of July 1, 2009, Second Amendment, dated as of March 1, 2010, Third Amendment, dated as of November 5, 2010, Fourth Amendment, dated as of March 28, 2011, Fifth Amendment, dated as of January 23, 2012, Sixth Amendment, dated as of July 31, 2012 and Seventh Amendment, dated as of January 29, 2014 | |
| 10.15† | A320 Aircraft Purchase Agreement, dated as of December 29, 2010, between Airbus S.A.S. and Virgin America Inc., as amended by Amendment No. 1 dated as of March 23, 2011 (as supplemented by Letter Agreement No. 1 to Amendment No. 1, dated March 23, 2011), Amendment No. 2 dated as of September 30, 2011 (as supplemented by Letter Agreement No. 1 to Amendment No. 2, dated September 30, 2011), Amendment No. 3 dated as of December 14, 2012 (as supplemented by Letter Agreement No. 1 to Amendment No. 3, dated December 14, 2012 and Letter Agreement No. 2 to Amendment No. 3, dated December 14, 2012), Amendment No. 4 dated as of October 1, 2012 and Amendment No. 5 dated as of December 14, 2012 (as supplemented by Letter Agreement No. 1 to Amendment No. 5, dated December 14, 2012), and as supplemented by Letter Agreement No. 1 dated as of December 29, 2010, Letter Agreement No. 2 dated as of December 29, 2010, Letter Agreement No. 3 dated as of December 29, 2010, Letter Agreement No. 4 dated as of December 29, 2010, Letter Agreement No. 5A dated as of December 29, 2010, Letter Agreement No. 5B dated as of December 29, 2010, Letter Agreement No. 5C dated as of December 29, 2010, Letter Agreement No. 5D dated as of December 29, 2010, Letter Agreement No. 5E dated as of December 29, 2010, Letter Agreement No. 5F dated as of December 29, 2010, Letter Agreement No. 6 dated as of December 29, 2010, Letter Agreement No. 7 dated as of December 29, 2010, Letter Agreement No. 8 dated as of December 29, 2010, Letter Agreement No. 9 dated as of December 29, 2010, Letter Agreement No. 10 dated as of December 29, 2010 | |
| 10.16**+ | Amended and Restated 2005 Virgin America Inc. Stock Incentive Plan | |
| 10.17**+ | Form of Stock Option Agreement under 2005 Stock Incentive Plan | |
| 10.18**+ | Form of Restricted Stock Unit Agreement under 2005 Stock Incentive Plan | |
| 10.19*+ | Virgin America Inc. 2014 Equity Incentive Award Plan | |
| 10.20*+ | Form of Stock Option Agreement under 2014 Equity Incentive Award Plan | |
| 10.21*+ | Form of Restricted Stock Agreement under 2014 Equity Incentive Award Plan | |
| 10.22*+ | Form of Restricted Stock Unit Agreement under 2014 Equity Incentive Award Plan | |
| 10.23*+ | Employee Stock Purchase Plan | |
| 10.24**+ | Offer Letter by and between Virgin America Inc. and David Cush dated as of December 18, 2007 | |
| 10.25**+ | Offer Letter by and between Virgin America Inc. and Frances Fiorillo dated as of January 20, 2006 | |
| 10.26**+ | Offer Letter by and between Virgin America Inc. and Steve Forte dated as of March 15, 2013 | |
| 10.27**+ | Offer Letter by and between Virgin America Inc. and Peter Hunt dated as of May 26, 2011 | |
| 10.28**+ | Offer Letter by and between Virgin America Inc. and John MacLeod dated as of July 18, 2012 | |
| 10.29**+ | Offer Letter by and between Virgin America Inc. and John Varley dated as of June 22, 2010 | |
| 10.30*+ | Form of Change in Control and Severance Agreement | |
| 10.31**+ | Management Incentive Compensation Plan | |
Exhibit | Description of Exhibit | |
| 10.32* | Form of Indemnification Agreement between Virgin America Inc. and its directors and executive officers | |
| 14.1* | Form of Code of Business Conduct and Ethics | |
| 23.1** | Consent of Ernst & Young LLP, independent registered public accounting firm | |
| 23.2* | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
| 24.1** | Power of Attorney (included on the signature page of this Registration Statement) | |
| * | To be filed by amendment. |
| ** | Previously filed. |
| + | Indicates a management contract or compensatory plan or arrangement. |
| † | Confidential treatment has been requested for certain portions of this Exhibit pursuant to Rule 406 under the Securities Act, which portions are omitted and filed separately with the Securities and Exchange Commission. |