As filed with the Securities and Exchange Commission on April 8, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Smartsheet Inc.
(Exact name of Registrant as specified in its charter)
| Washington | 20-2954357 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
10500 NE 8th Street, Suite 1300
Bellevue, WA 98004
(Address of Principal Executive Offices) (Zip Code)
2018 Equity Incentive Plan
2018 Employee Stock Purchase Plan
(Full title of the plans)
Mark P. Mader
President and Chief Executive Officer
Smartsheet Inc.
10500 NE 8th Street, Suite 1300
Bellevue, WA 98004
(425) 324-2360
(Name, address, including zip code, and telephone number, including area code, of agent for service)
| Please send copies of all communications to: | |
Alan C. Smith James D. Evans Katherine K. Duncan Fenwick & West LLP 1191 Second Avenue, Floor 10 Seattle, WA 98101 (260) 389-4510 | Paul T. Porrini Chief Legal Officer Smartsheet Inc. 10500 NE 8th Street, Suite 1300 Bellevue, WA 98004 (425) 324-2360 |
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 definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer | o | Accelerated filer | o |
| Non-accelerated filer | þ | Smaller reporting company | o |
| Emerging growth company | þ | ||
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 to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities To Be Registered | Amount To Be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
| Class A common stock, no par value per share | ||||
| - To be issued under the 2018 Equity Incentive Plan | 5,248,572(2) | $40.55(3) | $212,829,595(3) | $25,795 |
| - To be issued under the 2018 Employee Stock Purchase Plan | 1,049,714(4) | $34.47(5) | $36,183,642(5) | $4,386 |
| TOTAL | 6,298,286 | $249,013,237 | $30,181 | |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Class A common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Class A common stock. |
| (2) | Represents an automatic increase to the number of shares available for issuance under the 2018 Equity Incentive Plan (the “2018 Plan”), effective February 1, 2019. Shares available for issuance under the 2018 Plan were previously registered on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on April 27, 2018 (Registration No. 333-224501). |
| (3) | Calculated solely for the purposes of this offering under Rules 457(c) and (h) under the Securities Act on the basis of the average of the high and low prices of the Registrant’s Class A Common Stock as reported on the New York Stock Exchange on April 1, 2019. |
| (4) | Represents an automatic increase to the number of shares available for issuance under the 2018 Employee Stock Purchase Plan (the “ESPP”), effective as of February 1, 2019. Shares available for issuance under the ESPP were previously registered on a Registration Statement on Form S-8 filed with the Commission on April 27, 2018 (Registration No. 333-224501). |
| (5) | Calculated solely for the purposes of this offering under Rules 457(c) and (h) of the Securities Act on the basis of the average of the high and low prices of the Registrant’s Class A Common Stock as reported on the New York Stock Exchange on April 1, 2019 multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP. |
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, Smartsheet Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 with the Commission to register 5,248,572 additional shares of Registrant’s Class A Common Stock under the Registrant’s 2018 Plan and 1,049,714 additional shares of Registrant’s Class A Common Stock under the Registrant's ESPP, pursuant to the provisions of those plans providing for an automatic increase in the number of shares reserved for issuance under such plans on February 1, 2019. This Registration Statement hereby incorporates by reference the contents of the Registrant’s Registration Statement on Form S-8 filed with the Commission on April 27, 2018 (Registration No. 333-224501). The additional shares are of the same class as other securities relating to the 2018 Plan and ESPP for which the Registrant’s Registration Statement on Form S-8 filed with the Commission on April 27, 2018 (Registration No. 333-224501) is effective.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
| (a) | the Registrant’s Annual Report on Form 10-K for the fiscal year ended January 31, 2019, filed with the Commission on April 1, 2019, pursuant to Section 13 of the Exchange Act; |
| (b) | the Registrant’s Registration Statement on Form S-8 (File No. 333-224501) filed with the Commission on April 27, 2018; |
| (c) | all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and |
| (d) | the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-38464) filed with the Commission on April 23, 2018 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. |
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and 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, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. 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 in any subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of the date of this Registration Statement, an attorney of Fenwick & West LLP beneficially owns an aggregate of 15,905 shares of the Registrant’s Class B common stock.
Item 6. Indemnification of Directors and Officers.
Section 23B.08.510 of the Washington Business Corporation Act (the “WBCA”) authorizes Washington corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal
proceedings involving them as a result of their services as an officer or director. Section 23B.08.560 of the WBCA authorizes a corporation by provision in its articles of incorporation to agree to indemnify a director and obligate itself to advance or reimburse expenses without regard to the provisions of Sections 23B.08.510 through 550 subject to certain limitations.
As permitted by the WBCA, the Registrant’s amended and restated articles of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
| • | acts or omissions of a director that involve intentional misconduct or a knowing violation of law; |
| • | conduct in violation of Section 23B.08.310 of the WBCA (relating to unlawful distributions); or |
| • | any transaction from which a director personally received a benefit in money, property, or services to which such director is not legally entitled. |
As permitted by the WBCA, the Registrant’s amended and restated bylaws provide that:
| • | the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the WBCA, subject to very limited exceptions; |
| • | the Registrant may indemnify its other employees and agents as set forth in the WBCA; |
| • | the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the WBCA, subject to very limited exceptions; and |
| • | the rights conferred in the restated bylaws are not exclusive. |
The Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, executive officer, or employee of the Registrant regarding which indemnification is sought. The indemnification provisions in the Registrant’s amended and restated certificate of incorporation, amended and restated bylaws, and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant has directors’ and officers’ liability insurance for its directors and officers.
Certain of the Registrant’s directors are also indemnified by their employers with regard to their service on the Registrant’s board of directors.
See also the undertakings set out in response to Item 9 of this Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
| Exhibit Description | Incorporated by Reference | |||||
Exhibit Number | Form | File No. | Exhibit | Filing Date | Filed Herewith | |
| 4.1 | 10-Q | 001-38464 | 3.1 | 06/12/2018 | ||
| 4.2 | 10-Q | 001-38464 | 3.1 | 06/12/2018 | ||
| 4.3 | S-1/A | 333-222914 | 4.1 | 04/16/2018 | ||
| 5.1 | X | |||||
| 23.1 | X | |||||
| 23.2 | X | |||||
| 24.1 | X | |||||
| 99.1 | S-1/A | 333-222914 | 10.4 | 04/16/2018 | ||
| 99.2 | S-1/A | 333-222914 | 10.5 | 04/16/2018 | ||
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:
(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 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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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 clauses (A)(1)(i) and (A)(1)(ii) above shall not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic 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; and
(3) to remove from registration by means of a post-effective amendment any of the securities being registered that 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 into this 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 hereby, 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 Bellevue, State of Washington, on this 8th day of April, 2019.
| SMARTSHEET INC. | ||
| By: | /s/ Mark P. Mader | |
Mark P. Mader Chief Executive Officer and President | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark P. Mader and Paul T. Porrini, and each of them, as his or her true and lawful attorney-in-fact and agent with the full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments to this Registration Statement on Form S-8), 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, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for 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 his or her substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Mark P. Mader | President, Chief Executive Officer, and Director (Principal Executive Officer) | April 8, 2019 | ||
| Mark P. Mader | ||||
| /s/ Jennifer E. Ceran | Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) | April 8, 2019 | ||
| Jennifer E. Ceran | ||||
| /s/ Geoffrey T. Barker | Chair of the Board of Directors | April 8, 2019 | ||
| Geoffrey T. Barker | ||||
| /s/ Brent Frei | Director | April 8, 2019 | ||
| Brent Frei | ||||
| /s/ Elena Gomez | Director | April 8, 2019 | ||
| Elena Gomez | ||||
| /s/ Ryan Hinkle | Director | April 8, 2019 | ||
| Ryan Hinkle | ||||
| /s/ Matthew McIlwain | Director | April 8, 2019 | ||
| Matthew McIlwain | ||||
| /s/ James N. White | Director | April 8, 2019 | ||
| James N. White | ||||
| /s/ Magdalena Yesil | Director | April 8, 2019 | ||
| Magdalena Yesil | ||||