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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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(do not check if a smaller reporting company) |
Smaller reporting company |
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___________________
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CALCULATION OF REGISTRATION FEE |
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Title of Securities to be Registered |
Amount
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Proposed
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Proposed
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Amount of
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Common stock, $0.001 par value per share: |
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— To be issued under the Amended and Restated 2010 Equity Incentive Plan |
$59,406,623.64 |
$6,903.05 |
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— To be issued under the 2012 Employee Stock Purchase Plan |
$12,623,534.94 |
$1,466.85 |
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TOTAL: |
1,773,967 |
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$72,030,158.58 |
$8,369.90 |
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(1) |
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the Amended and Restated 2010 Equity Incentive Plan (“2010 Plan”) and 2012 Employee Stock Purchase Plan (“2012 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
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(2) |
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Reflects additional shares reserved for issuance under the 2010 Plan under an automatic increase to the number of shares reserved for issuance under the 2010 Plan on January 1, 2015, which annual increase is provided for in the 2010 Plan. |
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(3) |
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Reflects an automatic increase to the number of shares reserved for issuance under the 2012 ESPP on January 1, 2015, which annual increase is provided for in the 2012 ESPP. |
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(4) |
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Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of $ 41.86, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on May 12, 2015. |
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(5) |
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Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $41.86, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on May 12, 2015 . Pursuant to the 2012 ESPP, which plan is incorporated by reference herein, the purchase price of the shares of common stock will be 85% of the lower of the fair market value of the common stock on the first trading day of the offering period or on the last day of the offering period. |
___________________
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REGISTRATION STATEMENT ON FORM S-8
The contents of the Registration Statement on Form S-8 (No. 333-181300) filed by WageWorks, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) on May 10, 2012 are incorporated herein by reference.
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, 201 4 filed with the Commission on February 2 6 , 201 5 ;
(2) The Registrant’s quarterly report on Form 10-Q for the quarterly period ended March 31, 2015 filed with the Commission on May 5, 2015;
( 3 ) The Registrant’s Current Report on Form 8-K filed with the Commission on February 12 , 201 5 ;
( 4 ) The description of the Registrant’s Common Stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-35232) filed with the Commission on July 12, 2011, 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.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the registrant’s certificate of incorporation to be in effect upon the closing of this offering includes provisions that eliminate the personal liability of its directors for monetary damages for breach of their fiduciary duty as directors. To the extent Section 102(b)(7) is interpreted , or the Delaware General Corporation Law is amended, to allow similar protections for officers of a corporation, such provisions of the registrant’s certificate of incorporation shall also extend to those persons.
In addition , as permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the Registrant to be effective upon completion of this offering provide that:
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· |
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The Registrant shall indemnify its directors and officers for serving the registrant in those capacities or for serving other business enterprises at the registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful. |
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· |
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The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law. |
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The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification. |
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· |
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The Registrant will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification. |
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· |
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The rights conferred in the bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons. |
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· |
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The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents. |
The Registrant’s policy is to enter into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also provides for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable .
Item 8. Exhibits.
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Incorporated by Reference |
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Exhibit Number |
Description |
Form |
File No. |
Exhibit |
Filing Date |
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4.1 |
Specimen common stock certificate of Registrant |
S-1 |
333-173709 |
4.1 |
7/19/2011 |
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4.2 |
Amended and Restated 2010 Equity Incentive Plan |
8-K |
001-35232 |
10.1 |
4/17/2013 |
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4.3 |
Amended Form of Stock Option Agreement under the Amended and Restated 2010 Equity Incentive Plan |
10-K |
001-35232 |
10.29 |
2/27/2013 |
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4.4 |
Form of Restricted Stock Unit Agreement under the Amended and Restated 2010 Equity Incentive Plan |
10-K |
001-35232 |
10.30 |
2/27/2013 |
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4.5 |
2000 Stock Option/Stock Issuance Plan |
S-1 |
333-173709 |
10.4 |
4/25/2011 |
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4.6 |
Form of Stock Option Agreement under the 2000 Stock Option/Stock Issuance Plan |
S-1 |
333-173709 |
10.5 |
4/25/2011 |
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4.7 |
2012 Employee Stock Purchase Plan |
10-K |
001-35232 |
10.6 |
2/27/2013 |
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4.8 |
Form of Subscription Agreement under 2012 Employee Stock Purchase Plan |
S-1 |
333-173709 |
10.7 |
3/07/2012 |
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5.1 |
Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation |
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23.1 |
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
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23.2 |
Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) |
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24.1 |
Power of Attorney (contained on signature page hereto) |
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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 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 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;
(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 periodic 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 this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 of 1933 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 the City of San Mateo, State of California, on May 15 , 201 5 .
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WAGEWORKS, INC. |
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By: |
/s/ Joseph L. Jackson |
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Joseph L. Jackson |
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Chief Executive Officer and Director |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Joseph L. Jackson and Colm M. Callan and each of them, as his true and lawful attorney in fact and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (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 attorney in fact, proxy and agent 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 attorney in fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Joseph L. Jackson |
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Chief Executive Officer and Director |
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May 15, 2015 |
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Joseph L. Jackson |
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(Principal Executive Officer) |
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/s/ Colm M. Callan |
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Chief Financial Officer |
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May 15, 2015 |
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Colm M. Callan |
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(Principal Financial and Accounting Officer) |
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/s/ Thomas A. Bevilacqua |
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Director |
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May 15, 2015 |
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Thomas A. Bevilacqua |
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/s/ Bruce G. Bodaken |
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Director |
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May 15, 2015 |
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Bruce G. Bodaken |
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/s/ Mariann Byerwalter |
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Director |
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May 15, 2015 |
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Mariann Byerwalter |
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/s/ Jerome D. Gramaglia |
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Director |
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May 15, 2015 |
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Jerome D. Gramaglia |
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/s/ John W. Larson |
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Director |
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May 15, 2015 |
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John W. Larson |
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/s/ Edward C. Nafus |
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Director |
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May 15, 2015 |
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Edward C. Nafus |
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INDEX TO EXHIBITS
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Incorporated by Reference |
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Exhibit Number |
Description |
Form |
File No. |
Exhibit |
Filing Date |
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4.1 |
Specimen common stock certificate of Registrant |
S-1 |
333-173709 |
4.1 |
7/19/2011 |
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4.2 |
Amended and Restated 2010 Equity Incentive Plan |
8-K |
001-35232 |
10.1 |
4/17/2013 |
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4.3 |
Amended Form of Stock Option Agreement under the Amended and Restated 2010 Equity Incentive Plan |
10-K |
001-35232 |
10.29 |
2/27/2013 |
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4.4 |
Form of Restricted Stock Unit Agreement under the Amended and Restated 2010 Equity Incentive Plan |
10-K |
001-35232 |
10.30 |
2/27/2013 |
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4.5 |
2000 Stock Option/Stock Issuance Plan |
S-1 |
333-173709 |
10.4 |
4/25/2011 |
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4.6 |
Form of Stock Option Agreement under the 2000 Stock Option/Stock Issuance Plan |
S-1 |
333-173709 |
10.5 |
4/25/2011 |
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4.7 |
2012 Employee Stock Purchase Plan |
10-K |
001-35232 |
10.6 |
2/27/2013 |
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4.8 |
Form of Subscription Agreement under 2012 Employee Stock Purchase Plan |
S-1 |
333-173709 |
10.7 |
3/07/2012 |
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5.1 |
Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation |
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23.1 |
Consent of KPMG LLP, Independent Registered Public Accounting Firm |
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23.2 |
Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) |
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24.1 |
Power of Attorney (contained on signature page hereto) |
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OPINION OF WILSON SONSINI GOODRICH & ROSATI,
PROFESSIONAL CORPORATION
May 15, 2015
WageWorks, Inc.
1100 Park Place, 4th Floor
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 WageWorks, Inc., a Delaware corporation, with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 1,773,967 shares of your common stock, par value $0.001 per share (the “Shares”), reserved for issuance pursuant to the Amended and Restated 2010 Equity Incentive Plan and the 2012 Employee Stock Purchase Plan (the “Plans”). As your legal counsel, we have reviewed the actions proposed to be taken by you in connection with the issuance and sale of the Shares to be issued under the Plans.
It is our 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.
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Very truly yours |
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WILSON SONSINI GOODRICH & ROSATI P.C. |
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/s/ Wilson Sonsini Goodrich & Rosati P.C. |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
WageWorks, Inc.:
We consent to the use of our reports dated February 26, 2015, with respect to the consolidated balance sheets of WageWorks, Inc. and subsidiaries as of December 31, 2013 and 2014, and the related consolidated statements of income, stockholders’ equity (deficit) and cash flows for each of the years in the three-year period ended December 31, 2014, and the effectiveness of internal control over financial reporting as of December 31, 201 4 incorporated herein by reference.
/s/ KPMG LLP
San Francisco, California
May 15, 2015