S-8 1 a15-21239_12s8.htm S-8

As filed with the U.S. Securities and Exchange Commission on June 22, 2016

Registration No. 333-           

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Twilio Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Delaware

 

26-2574840

(State or Other Jurisdiction of

 

(I.R.S. Employer

Incorporation or Organization)

 

Identification Number)

 

645 Harrison Street, Third Floor

San Francisco, California 94107

(Address of Registrant’s Principal Executive Offices)

 

 

Amended and Restated 2008 Stock Option Plan

2016 Stock Option and Incentive Plan

2016 Employee Stock Purchase Plan

(Full title of the plan)

 

 

Jeff Lawson

Chief Executive Officer

Twilio Inc.

645 Harrison Street, Third Floor

San Francisco, California 94107

(415) 390-2337

(Name, address and telephone number of agent for service)

 

 

Copies to:

Anthony J. McCusker, Esq.

 

Karyn Smith, Esq.

Rezwan D. Pavri, Esq.

 

Twilio Inc.

Goodwin Procter LLP

 

645 Harrison Street, Third Floor

135 Commonwealth Drive

 

San Francisco, California 94107

Menlo Park, California 94025

 

(415) 390-2337

(650) 752-3100

 

 

 

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. (Check one):

 

Large accelerated filer

o

 

Accelerated filer

o

Non-accelerated filer

x

(Do not check if a smaller reporting company)

 

Smaller reporting company

o

 

 

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, $0.001 par value per share:

 

 

 

 

 

 

 

 

—2016 Stock Option and Incentive Plan

 

11,500,000

(2)

$

15.00

(7)

$

172,500,000

 

$

17,371

—2016 Employee Stock Purchase Plan*

 

2,400,000

(3)

$

12.75

(8)

$

30,600,000

 

$

3,081

—Amended and Restated 2008 Stock Option Plan

 

17,864,251

(4)

—

(9)

—

 

—

Class B Common Stock, $0.001 par value per share:

 

 

 

 

 

 

 

 

—Amended and Restated 2008 Stock Option Plan (Options)

 

16,970,739

(5)

$

5.98

(10)

$

101,485,019

 

$

10,220

—Amended and Restated 2008 Stock Option Plan (RSUs)

 

893,512

(6)

$

15.00

(7)

$

13,402,680

 

$

1,350

TOTAL:

 

49,628,502

 

 

 

 

$

317,987,699

 

$

32,022

(1)                  Pursuant to Rule 416 of 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 (“Class A Common Stock”) or the Registrant’s Class B Common Stock (“Class B Common Stock”) that become issuable under the Registrant’s 2016 Stock Option and Incentive Plan (“2016 Plan”), the Registrant’s 2016 Employee Stock Purchase Plan (“2016 ESPP”) and the Registrant’s Amended and Restated 2008 Stock Option Plan (“2008 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Class A Common Stock or Class B Common Stock.

(2)                  Represents 11,500,000 shares of Class A Common Stock reserved for issuance pursuant to future awards under the 2016 Plan. To the extent that any awards outstanding under the 2016 Plan or 2008 Plan expire, are forfeited, are held back upon exercise or settlement of an award to cover any exercise price, as applicable, or tax withholding, are reacquired by the Registrant prior to vesting, are satisfied without the issuance of stock or are otherwise terminated (other than by exercise) subsequent to the date of this Registration Statement, the shares reserved for issuance pursuant to such awards will become available for issuance as shares of Class A Common Stock under the 2016 Plan; provided, that any shares of Class B Common Stock will be first converted to shares of Class A Common Stock. See footnotes 5 and 6 below.

(3)                  Represents 2,400,000 shares of Class A Common Stock reserved for issuance pursuant to future awards under the 2016 ESPP.

(4)                  Represents 17,864,251 shares of Class A Common Stock issuable upon conversion of shares of Class B Common Stock underlying equity awards outstanding under the 2008 Plan as of the date of this Registration Statement. To the extent that any such awards expire, are forfeited, are satisfied without the issuance of stock, are held back upon exercise or settlement to cover any exercise price or tax withholding, or are otherwise terminated (other than by exercise) subsequent to the date of this Registration Statement, the shares of Class B Common Stock reserved for issuance pursuant to such awards will become available for issuance as shares of Class A Common Stock under the 2016 Plan. See footnote 2 above.

(5)                  Represents 16,970,739 shares of Class B Common Stock reserved for issuance pursuant to stock option awards outstanding under the 2008 Plan as of the date of this Registration Statement. To the extent that any such awards expire, are forfeited, are satisfied without the issuance of stock, are held back upon exercise to cover any exercise price or tax withholding, or are otherwise terminated (other than by exercise) subsequent to the date of this Registration Statement, the shares of Class B Common Stock reserved for issuance pursuant to such awards will become available for issuance as shares of Class A Common Stock under the 2016 Plan. See footnote 2 above.

(6)                  Represents 893,512 shares of Class B Common Stock reserved for issuance pursuant to restricted stock unit awards outstanding under the 2008 Plan as of the date of this Registration Statement. To the extent that any such awards expire, are forfeited, are satisfied without the issuance of stock, are held back upon settlement to cover any tax withholding, or are otherwise terminated subsequent to the date of this Registration Statement, the shares of Class B Common Stock reserved for issuance pursuant to such awards will become available for issuance as shares of Class A Common Stock under the 2016 Plan. See footnote 2 above.

(7)                  Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $15.00 per share, which is the initial public offering price per share of Class A Common Stock set forth on the cover page of the Registrant’s prospectus dated June 22, 2016 relating to the Registrant’s initial public offering.

(8)                  Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $15.00 per share, which is the initial public offering price per share of Class A Common Stock set forth on the cover page of the Registrant’s prospectus dated June 22, 2016 relating to the Registrant’s initial public offering. Pursuant to the 2016 ESPP, the purchase price of the shares of Class A Common Stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of a share of Class A Common Stock on the first trading day of the offering period or on the exercise date.

(9)                  Pursuant to Rule 457(i), there is no fee associated with the registration of shares of Class A Common Stock issuable upon conversion of shares of Class B Common Stock (a convertible security) being registered under this Registration Statement because no additional consideration will be received in connection with the conversion of shares of Class B Common Stock.

(10)             Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $5.98 per share, the weighted-average exercise price of stock option awards outstanding under the 2008 Plan as of June 22, 2016.

*                        In addition, pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the 2016 ESPP. In accordance with Rule 457(h)(2), no separate fee calculation is made for plan interests.

 

 

 


 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information called for in Part I of Form S-8 to be contained in the Section 10(a) prospectus is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”). The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.         Incorporation of Documents by Reference.

 

The following documents filed with the Commission by the Registrant are incorporated by reference into this Registration Statement:

 

(a)                                 The Registrant’s prospectus filed pursuant to Rule 424(b) under the Securities Act on June 22, 2016 relating to the Registration Statement on Form S-1, as amended (File No. 333-211634), which contains the Registrant’s audited financial statements for the latest fiscal year which such statements have been filed; and

 

(b)                                 The description of the Registrant’s Class A Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-37806) filed with the Commission on June 17, 2016 under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description.

 

All documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the Registration Statement which indicates that all of the shares registered hereunder have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into 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 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 earlier 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.

 

None.

 

Item 6.         Indemnification of Directors and Officers.

 

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) authorizes a corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently

 

II-1


 

serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding.  In addition, Section 145 provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.

 

The Registrant has adopted provisions in the Registrant’s certificate of incorporation and bylaws that limit or eliminate the personal liability of the Registrant’s directors and executive officers to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director or executive officer will not be personally liable to the Registrant or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability in limited circumstances.

 

These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.

 

In addition, the Registrant’s bylaws provide that:

 

·                  the Registrant will indemnify its directors and executive officers and, in the discretion of its board of directors, certain employees and agents to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and

·                  the Registrant will advance reasonable expenses, including attorneys’ fees, to its directors and executive officers, and in the discretion of its board of directors, to certain employees and agents, in connection with legal proceedings relating to their service for or on behalf of the Registrant, subject to limited exceptions.

 

The Registrant has or will enter into indemnification agreements with each of its directors, executive officers and certain other officers. These agreements provide that the Registrant will indemnify each of its directors, executive officers, certain other officers and, at times, their affiliates, to the fullest extent permitted by the DGCL.

 

The Registrant also maintains general liability insurance which covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.

 

See also the Undertakings set forth in the response to Item 9 herein.

 

Item 7.         Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.         Exhibits.

 

See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index 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;

 

(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 in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission 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;

 

(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) of this section shall 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 Securities Exchange Act of 1934 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 San Francisco, California, on June 22, 2016.

 

 

TWILIO INC.

 

 

 

By:

/s/ Jeff Lawson

 

 

Jeff Lawson

 

 

Chief Executive Officer and Chairman

 

POWER OF ATTORNEY AND SIGNATURES

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeff Lawson and Lee Kirkpatrick, and each of them, as his or her true and lawful attorneys-in-fact and agents, 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 the Registration Statement on Form S-8 of Twilio Inc., and any or all amendments (including post-effective amendments), 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 requisite or necessary to be done in connection therewith and about 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 their substitute or 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

 

 

/s/ Jeff Lawson

 

Chief Executive Officer and Chairman

 

June 22, 2016

 

Jeff Lawson

 

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

/s/ Lee Kirkpatrick

 

Chief Financial Officer (Principal Financial

 

June 22, 2016

 

Lee Kirkpatrick

 

and Accounting Officer)

 

 

 

 

 

 

 

 

 

/s/ Richard Dalzell

 

Director

 

June 22, 2016

 

Richard Dalzell

 

 

 

 

 

 

 

 

 

 

 

/s/ Byron Detter

 

Director

 

June 22, 2016

 

Byron Deeter

 

 

 

 

 

 

 

 

 

 

 

/s/ Elena Donio

 

Director

 

June 22, 2016

 

Elena Donio

 

 

 

 

 

 

 

 

 

 

 

/s/ James McGeever

 

Director

 

June 22, 2016

 

James McGeever

 

 

 

 

 

 

II-4


 

/s/ Scott Raney

 

Director

 

June 22, 2016

 

Scott Raney

 

 

 

 

 

 

 

 

 

 

 

/s/ Erika Rottenberg

 

Director

 

June 22, 2016

 

Erika Rottenberg

 

 

 

 

 

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

4.1

 

 

Form of Class A Common Stock Certificate of the Registrant (1)

4.2

 

 

Amended and Restated 2008 Stock Option Plan, and forms of award agreements thereunder (2)

4.3

 

 

2016 Stock Option and Incentive Plan, and forms of award agreements thereunder (3)

4.4

 

 

2016 Employee Stock Purchase Plan (4)

5.1

 

 

Opinion of Goodwin Procter LLP

23.1

 

 

Consent of KPMG LLP, independent registered public accounting firm

23.2

 

 

Consent of Goodwin Procter LLP (included in Exhibit 5.1)

24.1

 

 

Power of Attorney (included on page II-4)

 

(1)         Filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-211634), filed previously with the Commission on May 26, 2016 and incorporated by reference herein.

 

(2)         Filed as Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-211634), filed previously with the Commission on May 26, 2016 and  incorporated by reference herein.

 

(3)         Filed as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-211634), filed previously with the Commission on May 26, 2016 and  incorporated by reference herein.

 

(4)         Filed as Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1 (File No. 333-211634), filed previously with the Commission on May 26, 2016 and  incorporated by reference herein.