svmk-s8.htm

As filed with the Securities and Exchange Commission on February 26, 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

  

SVMK Inc.

(Exact name of Registrant as specified in its charter)

 

Delaware

 

80-0765058

(State or other jurisdiction

of incorporation or organization)

 

(I.R.S. Employer

Identification No.)

 

SVMK Inc.

One Curiosity Way

San Mateo, California 94403

(Address of principal executive offices, including zip code)

 

2018 Equity Incentive Plan

2018 Employee Stock Purchase Plan

(Full title of the plan)

Alexander J. Lurie

Chief Executive Officer

SVMK Inc.

One Curiosity Way

San Mateo, California 94403

 

(650) 543-8400

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

 

Copies to:

Katharine A. Martin, Esq.

Rezwan D. Pavri, Esq.

Lisa L. Stimmell, Esq.

Wilson Sonsini Goodrich & Rosati, P.C.

650 Page Mill Road

Palo Alto, California 94304

(650) 493-9300

 

 

Lora D. Blum, Esq.

Adam M. Inglis, Esq.

SVMK Inc.

One Curiosity Way

San Mateo, California 94403

(650) 543-8400

 

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  
Non-accelerated filer    

Emerging growth company  

Accelerated filer  
Smaller reporting 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:

 

 

 

 

—2018 Equity Incentive Plan

6,290,894(2)

$12.36(4)

$77,755,450

$9,424

—2018 Employee Stock Purchase Plan

1,258,178(3)

$10.51(5)

$13,223,451

$1,603

TOTAL:

7,549,072

 

$90,978,901

$11,027

 

 

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement covers any additional shares of the Registrant’s common stock (“Common Stock”) that become issuable under the Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”) and the Registrant’s 2018 Employee Stock Purchase Plan (the “2018 ESPP”), by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding shares of Common Stock.

 

(2)

Reflects an automatic increase to the number of shares of Common Stock reserved for issuance pursuant to future awards under the 2018 Plan, which annual increase is provided for in the 2018 Plan.

 

(3)

Reflects an automatic increase to the number of shares of Common Stock reserved for issuance under the 2018 ESPP, which annual increase is provided for in the 2018 ESPP.

 

(4)

Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $12.36 per share, which is the average of the high and low prices of Common Stock, as reported on The Nasdaq Global Select Market, on February 19, 2019.

 

(5)

Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of 85% of $12.36 per share, which is the average of the high and low prices of Common Stock, as reported on The Nasdaq Global Select Market, on February 19, 2019. Pursuant to the 2018 ESPP, the purchase price of the shares of Common Stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of Common Stock on the Enrollment Date or the Exercise Date (as such terms are defined in the 2018 ESPP).

 

 

 



PART I

INFORMATION REQUIRED IN THE PROSPECTUS

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:

(1) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the Commission on February 26, 2019;

(2) 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 (other than the portions of these documents not deemed to be filed); and

(3) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-38664) filed with the Commission on September 18, 2018, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission 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 subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 4.  Description of Securities.

Not applicable.

Item 5.  Interests of Named Experts and Counsel.

Not applicable.

Item 6.  Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.

The Registrant’s amended and restated certificate of incorporation contains provisions that limit the liability of its directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, the


Registrant’s directors will not be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for the following:

 

any breach of their 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 they derived an improper personal benefit.

Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission, or claim that occurred or arose prior to that amendment or repeal. If the Delaware General Corporation Law is amended to provide for further limitations on the personal liability of directors of corporations, then the personal liability of the Registrant’s directors will be further limited to the greatest extent permitted by the Delaware General Corporation Law.

In addition, the Registrant’s amended and restated bylaws will indemnify, to the fullest extent permitted by law, any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of the Registrant’s directors or officers or is or was serving at the Registrant’s request as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise. The Registrant’s amended and restated bylaws provide that the Registrant may indemnify to the fullest extent permitted by law any person who is or was a party or is threatened to be made a party to any action, suit, or proceeding by reason of the fact that he or she is or was one of the Registrant’s employees or agents or is or was serving at the Registrant’s request as an employee or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Registrant’s amended and restated bylaws will also provide that the Registrant must advance expenses incurred by or on behalf of a director or officer in advance of the final disposition of any action or proceeding, subject to limited exceptions.

 

Further, the Registrant has entered into indemnification agreements with each of its directors and executive officers that may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements require the Registrant, among other things, to indemnify its directors and executive officers against liabilities that may arise by reason of their status or service. These indemnification agreements also require the Registrant to advance all expenses incurred by the directors and executive officers in investigating or defending any such action, suit, or proceeding. The Registrant believes that these agreements are necessary to attract and retain qualified individuals to serve as directors and executive officers.

The limitation of liability and indemnification provisions in the Registrant’s amended and restated certificate of incorporation, amended and restated bylaws, and the indemnification agreements that the Registrant has entered into with its directors and executive officers may discourage stockholders from bringing a lawsuit against the Registrant’s directors and executive officers for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against the Registrant’s directors and executive officers, even though an action, if successful, might benefit the Registrant and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that the Registrant pays the costs of settlement and damage awards against directors and executive officers as required by these indemnification provisions. At present, the Registrant is not aware of any pending litigation or proceeding involving any person who is or was one of the Registrant’s directors, officers, employees, or other agents or is or was serving at its request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, for which indemnification is sought, and the Registrant is not aware of any threatened litigation that may result in claims for indemnification.

The Registrant has obtained insurance policies under which, subject to the limitations of the policies, coverage is provided to the Registrant’s directors and executive officers against loss arising from claims made by reason of breach of fiduciary duty or other wrongful acts as a director or executive officer, including claims relating to public securities matters, and to the Registrant with respect to payments that may be made by the Registrant to these directors and executive officers pursuant to its indemnification obligations or otherwise as a matter of law.


Certain of the Registrant’s non-employee directors may, through their relationships with their employers, be insured and/or indemnified against certain liabilities incurred in their capacity as members of the Registrant’s Board of Directors.

Item 7.  Exemption from Registration Claimed.

Not applicable.

Item 8.  Exhibits.

 

Exhibit Number

 

Exhibit Description

 

Incorporated by Reference

Form

 

File No.

 

Exhibit

 

Filing Date

 

4.1

Form of common stock certificate of Registrant.

S-1/A

333-227099

4.1

September 13, 2018

4.2

SVMK Inc. 2018 Equity Incentive Plan and related form agreements.

S-1

333-227099

10.2

August 29, 2018

4.3

SVMK Inc. 2018 Employee Stock Purchase Plan and related form agreements.

S-1/A

333-227099

10.3

September 13, 2018

5.1

Opinion of Wilson Sonsini Goodrich & Rosati, P.C.

 

 

 

 

23.1

Consent of Independent Registered Public Accounting Firm.

 

 

 

 

23.2

Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1).

 

 

 

 

24.1

Power of Attorney (contained on signature page hereto).

 

 

 

 

 



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 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 a 20 percent 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 paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)

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)

It will 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 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 in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

C.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.



SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Mateo, California, on the 26th day of February, 2019.

 

 

 

SVMK Inc.

 

 

 

 

 

By:

 

/s/  Alexander J. Lurie

 

 

 

 

Alexander J. Lurie

 

 

 

 

Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Alexander J. Lurie, Timothy J. Maly and Lora D. Blum, and each one 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 their name, place and stead, in any and all capacities, to sign this Registration Statement and any and all amendments thereto (including any 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, 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 to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, and agents or any of them, or his or her 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/  Alexander J. Lurie

 

Chief Executive Officer and Director

 

February 26, 2019

ALEXANDER J. LURIE

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/  Timothy J. Maly

 

Chief Financial Officer and Chief Operating Officer

 

February 26, 2019

TIMOTHY J. MALY

 

(Principal Financial Officer)

 

 

 

 

 

 

 

/s/  Dharti Patel

 

Chief Accounting Officer and Controller

 

February 26, 2019

DHARTI PATEL

 

(Principal Accounting Officer)

 

 

 

 

 

 

 

/s/  David A. Ebersman

 

Chair of the Board of Directors

 

February 26, 2019

DAVID A. EBERSMAN

 

 

 

 

 

 

 

 

 

/s/  Susan L. Decker

 

Director

 

February 26, 2019

SUSAN L. DECKER

 

 

 

 

 

 

 

 

 

/s/  Dana L. Evan

 

Director

 

February 26, 2019

DANA L. EVAN

 

 

 

 

 

 

 

 

 

/s/  Ryan Finley

 

Director

 

February 26, 2019

RYAN FINLEY

 

 

 

 

 

 

 

 

 

/s/  Erika H. James

 

Director

 

February 26, 2019

ERIKA H. JAMES

 

 

 

 

 

 

 

 

 

/s/  Sheryl K. Sandberg

 

Director

 

February 26, 2019

SHERYL K. SANDBERG

 

 

 

 

 

 

 

 

 

/s/  Brad D. Smith

 

Director

 

February 26, 2019

BRAD D. SMITH

 

 

 

 

 

 

 

 

 

/s/  Benjamin C. Spero

 

Director

 

February 26, 2019

BENJAMIN C. SPERO

 

 

 

 

 

 

 

 

 

/s/  Serena J. Williams

 

Director

 

February 24, 2019

SERENA J. WILLIAMS

 

 

 

 

 

 

svmk-ex51_6.htm

 

Exhibit 5.1

 

Palo Alto, CA 94304-1050

PHONE 650.493.9300

FAX 650.493.6811

www.wsgr.com

 

 

 

February 26, 2019

 

 

SVMK Inc.

One Curiosity Way

San Mateo, California 94403

Re:  Registration Statement on Form S‑8

Ladies and Gentlemen:

We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by SVMK Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission on or about the date hereof, relating to the registration under the Securities Act of 1933, as amended, of (i) 6,290,894 shares of common stock, par value $0.00001 per share (“Common Stock”) reserved for issuance pursuant to the Company’s 2018 Equity Incentive Plan and (ii) 1,258,178 shares of Common Stock reserved for issuance pursuant to the Company’s 2018 Employee Stock Purchase Plan (which plans are referred to herein as the “Plans” and which shares of Common Stock are referred to herein as the “Shares”).

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plans and pursuant to the agreements that accompany the Plans, will be legally and validly issued, fully paid, and nonassessable.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.

 

 

Very truly yours,

 

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

 

/s/ Wilson Sonsini Goodrich & Rosati, P.C.

 

 

svmk-ex231_7.htm

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2018 Equity Incentive Plan and the 2018 Employee Stock Purchase Plan of SVMK Inc. of our report dated February 26, 2019, with respect to the consolidated financial statements of SVMK Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Francisco, California

February 26, 2019