As filed with the Securities and Exchange Commission on December 12, 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
BILL.COM HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware | 83-2661725 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
1810 Embarcadero Road
Palo Alto, California 94303
(Address of Principal Executive Offices) (Zip Code)
2006 Equity Incentive Plan
2016 Equity Incentive Plan
2019 Equity Incentive Plan
2019 Employee Stock Purchase Plan
(Full title of the plans)
René Lacerte
Chief Executive Officer and Founder
Bill.com Holdings, Inc.
1810 Embarcadero Road
Palo Alto, California 94303
(650) 621-7700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please send copies of all communications to:
James D. Evans Mark C. Stevens Dawn H. Belt Nicolas H. R. Dumont Fenwick & West LLP 801 California Street Mountain View, California 94041 (650) 988-8500 |
Raj Aji General Counsel, Chief Compliance Officer and Secretary Bill.com Holdings, Inc. 1810 Embarcadero Road Palo Alto, California 94303 (650) 621-7700 |
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.
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
Emerging growth company | ☒ |
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
| ||||||||
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 | ||||
Common stock, $0.00001 par value per share |
||||||||
- To be issued under the 2019 Equity Incentive Plan |
7,396,056(2) | $22.00(3) | $162,713,232.00(3) | $21,121 | ||||
- To be issued under the 2019 Employee Stock Purchase Plan |
1,400,000(4) | $18.70(5) | $26,180,000.00(5) | $3,399 | ||||
- Outstanding under the 2016 Equity Incentive Plan |
10,463,007(6) | $8.59(7) | $89,877,230.13(7) | $11,667 | ||||
- Outstanding under the 2006 Equity Incentive Plan |
1,488,997(8) | $1.99(9) | $2,963,104.03(9) | $385 | ||||
TOTAL |
20,748,060 | $281,733,566.16 | $36,570 | |||||
| ||||||||
|
(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 Registrants 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 Registrants receipt of consideration which results in an increase in the number of the outstanding shares of the Registrants common stock. |
(2) | Shares of common stock reserved for issuance under the 2019 Equity Incentive Plan (2019 Plan) consists of (a) 7,100,000 shares of common stock reserved for issuance under the 2019 Plan and (b) 296,056 shares of common stock previously reserved but unissued under the 2016 Equity Incentive Plan (2016 Plan), that are now available for issuance under the 2019 Plan. To the extent shares subject to outstanding awards under the 2016 Plan and the 2006 Equity Incentive Plan (2006 Plan and collectively, the Prior Plans) (i) are subject to options under the Prior Plans that cease to be subject to such options by forfeiture or otherwise, (ii) were or are issued under the Prior Plans pursuant to the exercise of options and are forfeited or repurchased at the original issue price, or (iii) are subject to options under the Prior Plans and are used to pay the exercise price of an option or withheld to satisfy tax withholding obligations relating to any awards will be available for future grant and issuance as common stock under the 2019 Plan. See footnote 6 below. |
(3) | Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the initial public offering price per share of the Registrants common stock as set forth in the Registrants prospectus filed with the Securities and Exchange Commission on or around December 12, 2019 pursuant to Rule 424(b) under the Securities Act. |
(4) | Represents shares reserved for issuance under the 2019 Employee Stock Purchase Plan (Purchase Plan) as of the date of this Registration Statement. |
(5) | Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the initial public offering price per share of the Registrants common stock multiplied by 85%, which is the percentage of the price per share applicable to purchases under the Purchase Plan. |
(6) | Represents shares of Registrants common stock reserved for issuance upon the exercise of stock options outstanding under the 2016 Plan as of the date of this Registration Statement. Any shares of common stock that (i) are subject to options under the 2016 Plan that cease to be subject to such options by forfeiture or otherwise, (ii) were or are issued under the 2016 Plan pursuant to the exercise of options and are forfeited or repurchased at the original issue price, or (iii) are subject to options under the 2016 Plan and are used to pay the exercise price of an option or withheld to satisfy tax withholding obligations relating to any awards will be available for future grant and issuance as common stock under the 2019 Plan. See footnote 2 above. |
(7) | Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price for stock options outstanding under the 2016 Plan granted by the Registrant as of the date of this Registration Statement. |
(8) | Represents shares of Registrants common stock reserved for issuance upon the exercise of stock options outstanding under the 2006 Plan as of the date of this Registration Statement. Any shares of common stock that (i) are subject to options under the 2006 Plan that cease to be subject to such options by forfeiture or otherwise, (ii) were or are issued under the 2006 Plan pursuant to the exercise of options and are forfeited or repurchased at the original issue price, or (iii) are subject to options under the 2006 Plan and are used to pay the exercise price of an option or withheld to satisfy tax withholding obligations relating to any awards will be available for future grant and issuance as common stock under the 2019 Plan. See footnote 2 above. |
(9) | Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price for stock options outstanding under the 2006 Plan granted by the Registrant as of the date of this Registration Statement. |
PART I
Information Required in the Section 10(a) Prospectus
The information called for by Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the Registration Statement) and has been or will be sent or given to participating service providers in accordance with Rule 428 of the Securities Act of 1933, as amended (the Securities Act), and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the Commission) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following documents filed by Bill.com Holdings, Inc. (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 Registrants prospectus filed on December 12, 2019 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended (Registration No. 333-234730), which contains audited financial statements for the Registrants latest fiscal year for which such statements have been filed; and |
(b) | the description of the Registrants common stock contained in the Registrants Registration Statement on Form 8-A (Registration No. 001-39149) filed with the Commission on December 3, 2019 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, entities affiliated with Fenwick & West LLP beneficially own an aggregate of 91,349 shares of the Registrants capital stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporations board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrants restated certificate of incorporation to be effective immediately prior to the completion of the Registrants initial public offering 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:
| any breach of the directors duty of loyalty to the Registrant or its stockholders; |
| any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
| unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or |
| any transaction from which the director derived an improper personal benefit. |
As permitted by the Delaware General Corporation Law, the Registrants restated bylaws to be effective immediately prior to the completion of the Registrants initial public offering, provide that:
| the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; |
| the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law; |
| 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 Delaware General Corporation Law, 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 Registrants restated certificate of incorporation and restated bylaws and to provide additional procedural protections. The indemnification provisions in the Registrants restated certificate of incorporation, restated bylaws, and the indemnification agreements entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrants directors and executive officers for liabilities arising under the Securities Act.
The Registrant currently carries liability insurance for its directors and officers.
Reference is also made to the Underwriting Agreement filed with the Form S-1 for the Registrants initial public offering, which provides for the indemnification of officers, directors, and controlling persons of the Registrant against certain liabilities.
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:
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 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 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 Palo Alto, State of California, on this 12th day of December, 2019.
BILL.COM HOLDINGS, INC. | ||
By: |
/s/ René Lacerte | |
René Lacerte | ||
Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints René Lacerte and John Rettig, and each of them, as his true and lawful attorney-in-fact and agent with the full power of substitution, for him 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his 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/ René Lacerte René Lacerte |
Chief Executive Officer and Director (Principal Executive Officer) |
December 12, 2019 | ||
/s/ John Rettig John Rettig |
Chief Financial Officer and Executive Vice President, Finance and Operations (Principal Financial and Accounting Officer) |
December 12, 2019 | ||
* Steven Cakebread |
Director |
December 12, 2019 | ||
* David Chao |
Director |
December 12, 2019 | ||
* David Hornik |
Director |
December 12, 2019 | ||
* Brian Jacobs |
Director |
December 12, 2019 | ||
* Peter Kight |
Director |
December 12, 2019 | ||
* Thomas Mawhinney |
Director |
December 12, 2019 | ||
* Allison Mnookin |
Director |
December 12, 2019 | ||
* Rory ODriscoll |
Director |
December 12, 2019 | ||
* Steven Piaker |
Director |
December 12, 2019 |
*By: |
/s/ René Lacerte René Lacerte Attorney-in-Fact |
December 12, 2019 |
Exhibit 5.1
December 12, 2019
Bill.com Holdings, Inc.
1810 Embarcadero Road
Palo Alto, CA 94303
Ladies and Gentlemen:
As counsel to Bill.com Holdings, Inc., a Delaware corporation (the Company), we have examined the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission (the Commission) on or about December 12, 2019 (the Registration Statement) in connection with the registration under the Securities Act of 1933, as amended (the Securities Act), of an aggregate of 20,748,060 shares of the Companys Common Stock, $0.00001 par value per share (the Common Stock), subject to issuance by the Company (a) upon the exercise or settlement of awards to be granted under the Companys 2019 Equity Incentive Plan (the 2019 Plan), (b) upon the exercise or settlement of awards granted under the Companys 2016 Equity Incentive Plan, as amended (the 2016 Plan), (c) upon the exercise or settlement of awards granted under the Companys 2006 Equity Incentive Plan, as amended (the 2006 Plan), and (d) pursuant to purchase rights to acquire shares of Common Stock to be granted under the Companys 2019 Employee Stock Purchase Plan (the Purchase Plan).
The 20,748,060 shares of Common Stock described in the preceding paragraph are collectively referred to herein as the Shares and the 2019 Plan, the 2016 Plan, the 2006 Plan and the Purchase Plan are collectively referred to in this letter as the Plans. At your request, we are providing this letter to express our opinion on the matters set forth below in this letter (our opinion).
In connection with our opinion expressed below, we have examined originals or copies of the Companys certificate of incorporation and bylaws, the Plans, certain corporate proceedings of the Companys board of directors and stockholders relating to the Registration Statement, the Plans and the Companys current certificate of incorporation and bylaws, and such other agreements, documents, certificates and statements of the Company and public or governmental officials, as we have deemed advisable, and have examined such questions of law as we have considered necessary. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures on documents submitted to us, the conformity to originals of all documents submitted to us as copies, and the absence of any undisclosed termination, waiver or amendment to any document reviewed by us. In giving our opinion, we have also relied upon a good standing certificate regarding the Company issued by the Delaware Secretary of State and representations made to us by the Company, including representations that the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law.
Based upon, and subject to, the foregoing, it is our opinion that when the 20,748,060 shares of Common Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards to be granted under the 2019 Plan, (b) upon the exercise or settlement of awards granted under the 2016 Plan, (c) upon the exercise or settlement
Bill.com Holdings Inc.
December 12, 2019
Page 2
of awards granted under the 2006 Plan and (d) pursuant to purchase rights to acquire shares of Common Stock to be granted under the Purchase Plan, have been issued and sold by the Company against the Companys receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including payment provisions) of the applicable Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectuses constituting a part thereof and any amendments thereto. We do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.
Very truly yours, |
/s/ Fenwick & West LLP |
FENWICK & WEST LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2006 Equity Incentive Plan, 2016 Equity Incentive Plan, 2019 Employee Stock Purchase Plan, and 2019 Equity Incentive Plan of Bill.com Holdings, Inc. of our report dated September 5, 2019, (except for the 6th paragraph of Note 1, as to which the date is November 27, 2019), with respect to the consolidated financial statements of Bill.com Holdings, Inc. included in the Registration Statement (Form S-1 No. 333-234730) and related Prospectus of Bill.com Holdings, Inc. filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
December 11, 2019