FITBIT INC (Form: S-8, Received: 02/29/2016 06:45:34)

Large accelerated filer

Accelerated filer

Non-accelerated filer

x (Do not check if a smaller reporting company)

Smaller reporting company

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

FITBIT, INC.

(Exact name of registrant as specified in its charter)

Delaware

20-8920744

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

Fitbit, Inc.

405 Howard Street

San Francisco, California 94105

(Address of Principal Executive Offices) (Zip Code)

2015 Equity Incentive Plan

2015 Employee Stock Purchase Plan

(Full title of the plans)

James Park

President, Chief Executive Officer, and Chairman

Fitbit, Inc.

405 Howard Street

San Francisco, California 94105

(415) 513-1000

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

Please send copies of all communications to:


Cynthia C. Hess, Esq.		Andy Missan, Esq.
Jeffrey R. Vetter, Esq.		Executive Vice President and
James D. Evans, Esq.		General Counsel
Fenwick & West LLP		Fitbit, Inc.
801 California Street		405 Howard Street
Mountain View, California 94041		San Francisco, California 94105
(650) 988-8500		(415) 513-1000

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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

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, $0.0001 par value per share
- Reserved for future issuance under the 2015 Equity Incentive Plan	10,739,078 ⁽²⁾	$13.64 ⁽³⁾	$146,481,024	$14,751
- Reserved for future issuance under the 2015 Employee Stock Purchase Plan	2,147,815 ⁽⁴⁾	$11.59 ⁽⁵⁾	$24,893,176	$2,507
TOTAL	12,886,893	N/A	$171,374,200	$17,258

(1)

Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “ Securities Act ”), this Registration Statement shall also cover any additional shares of the Registrant’s Class A common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Class A common stock.

(2)

Represents additional shares of the Registrant’s Class A common stock reserved for issuance under the Registrant’s 2015 Equity Incentive Plan (the “ EIP ”) resulting from the automatic annual increase in the number of authorized shares reserved and available for issuance under the EIP on January 1 of each of 2016 through 2025. The annual increase is equal to the lesser of (a) 5% of the number of shares of Registrant’s Class A common stock and Class B common stock issued and outstanding on each December 31 immediately prior to the date of increase or (b) such number of shares determined by the Registrant’s board of directors. The Registrant’s board of directors determined that the number of shares reserved for issuance under the EIP on January 1, 2016 shall be increased by 10,739,078 shares.

(3)	Estimated pursuant to Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculating the registration fee, on the basis of the average of the high and low prices of the Registrant’s Class A common stock as reported on the New York Stock Exchange on February 23, 2016.

(4)

Represents additional shares of the Registrant’s Class A common stock reserved for issuance under the Registrant’s 2015 Employee Stock Purchase Plan (the “ ESPP ”) resulting from the automatic annual increase in the number of authorized shares reserved and available for issuance under the ESPP on January 1 of each calendar year. The annual increase is equal to the lesser of (a) 1% of the number of shares of Registrant’s Class A common stock and Class B common stock issued and outstanding on each December 31 immediately prior to the date of increase or (b) such number of shares determined by the Registrant’s board of directors (or its authorized committees). The Registrant’s board of directors determined that the number of shares reserved for issuance under the ESPP on January 1, 2016 shall be increased by 2,147,815 shares.

(5)

Estimated pursuant to Rules 457(c) and (h) of the Securities Act, solely for the purpose of calculating the registration fee, on the basis of the average of the high and low prices of the Registrant’s Class A common stock as reported on the New York Stock Exchange on February 23, 2016. Under the ESPP, the purchase price of a share of Class A common stock is equal to 85% of the fair market value of the Registrant’s Class A common stock on the offering date or the purchase date, whichever is less.

REGISTRATION OF ADDITIONAL SHARES

PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, Fitbit, Inc. (the “ Registrant ”) is filing this Registration Statement with the Securities and Exchange Commission (the “ Commission ”) to register 10,739,078 additional shares of Class A common stock under the Registrant’s 2015 Equity Incentive Plan and 2,147,815 additional shares of Class A common stock under the Registrant’s 2015 Employee Stock Purchase Plan pursuant to the provisions of those plans providing for an automatic increase in the number of shares reserved for issuance under such plans. This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Commission on June 18, 2015 (Registration No. 333-205045). In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

PART II

Information Required in the Registration Statement

Item 3. Incorporation of Documents by Reference .

The following documents filed by the Registrant with the Commission pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”), and the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), are incorporated herein by reference:

(a)

the Registrant’s Annual Report on Form 10-K filed with the Commission on February 26, 2016;

(b)

the Registrant’s Registration Statement on Form S-8 (File No. 333-205045) filed with the Commission on June 18, 2015;

(c)

the Registrant’s Current Report on Form 8-K (File No. 001-37444) filed with the Commission on February 9, 2016;

(d)

all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and

(e)

the description of the Registrant’s Class A common stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-37444) filed with the Commission on June 15, 2015 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 5. Interests of Named Experts and Counsel .

As of the date of this Registration Statement, attorneys of Fenwick & West LLP beneficially own an aggregate of approximately 24,000 shares of the Registrant’s common stock.

Item 8. Exhibits .

The following exhibits are filed herewith:

Exhibit

Number

Exhibit Description

Incorporated by Reference

Filed

Herewith

Form

File No.

Exhibit

Filing
Date

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

001-37444

3.1

8/7/2015

4.2

Restated Bylaws of the Registrant.

10-Q

001-37444

3.2

8/7/2015

4.3

Form of Class A Common Stock Certificate of the Registrant.

S-1/A

333-203941

4.1

6/2/2015

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.

23.2

Consent of Fenwick & West LLP (included in Exhibit 5.1).

Exhibit

Number

Exhibit Description

Incorporated by Reference

Filed

Herewith

Form

File No.

Exhibit

Filing
Date

24.1

Power of Attorney (included on the signature page of this Registration Statement).

99.1

2015 Equity Incentive Plan and form of restricted stock unit award agreement.

S-1

333-203941

10.3

5/7/2015

99.2

2015 Equity Incentive Plan form of stock option award agreement.

8-K

001-37444

10.1

2/9/2016

99.3

2015 Employee Stock Purchase Plan.

S-1

333-203941

10.4

5/7/2015

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 San Francisco, State of California, on this 26th day of February, 2016.


FITBIT, INC.

By:		/s/ James Park
		James Park
		President, Chief Executive Officer, and Chairman

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints James Park and William Zerella, and each of them, as his or her true and lawful attorney-in-fact and agent with the full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments to this Registration Statement on Form S-8), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.


Signature	Title	Date

/s/ James Park James Park	President, Chief Executive Officer, and Chairman (Principal Executive Officer)	February 26, 2016

/s/ William Zerella William Zerella	Chief Financial Officer (Principal Financial and Accounting Officer)	February 26, 2016

/s/ Eric N. Friedman Eric N. Friedman	Chief Technology Officer and Director	February 26, 2016

/s/ Jonathan D. Callaghan Jonathan D. Callaghan	Director	February 26, 2016

/s/ Steven Murray Steven Murray	Director	February 26, 2016

/s/ Christopher Paisley Christopher Paisley	Director	February 26, 2016

EXHIBIT INDEX

Exhibit

Number

Exhibit Description

Incorporated by Reference

Filed

Herewith

Form

File No.

Exhibit

Filing
Date

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

001-37444

3.1

8/7/2015

4.2

Restated Bylaws of the Registrant.

10-Q

001-37444

3.2

8/7/2015

4.3

Form of Class A Common Stock Certificate of the Registrant.

S-1/A

333-203941

4.1

6/2/2015

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.

23.2

Consent of Fenwick & West LLP (included in Exhibit 5.1).

24.1

Power of Attorney (included on the signature page of this Registration Statement).

99.1

2015 Equity Incentive Plan and form of restricted stock unit award agreement.

S-1

333-203941

10.3

5/7/2015

99.2

2015 Equity Incentive Plan form of stock option award agreement.

8-K

001-37444

10.1

2/9/2016

99.3

2015 Employee Stock Purchase Plan.

S-1

333-203941

10.4

5/7/2015

Exhibit 5.1

LOGO

February 26, 2016

Fitbit, Inc.

405 Howard Street

San Francisco, California 94105

Ladies and Gentlemen:

At your request, we have examined the Registration Statement on Form S-8 to be filed by Fitbit, Inc., a Delaware corporation (the “ Company ”), with the Securities and Exchange Commission (the “ Commission ”) on or about February 26, 2016 (the “ Registration Statement ”) in connection with the registration under the Securities Act of 1933, as amended (“ Securities Act ”), of an aggregate of 12,886,893 shares (the “ Shares ”) of the Company’s Class A common stock, $0.0001 par value per share (the “ Class A Common Stock ”), subject to issuance by the Company upon the exercise of (a) awards granted or to be granted under the Company’s 2015 Equity Incentive Plan (the “ 2015 Plan ”) and (b) purchase rights to acquire shares of Class A Common Stock granted or to be granted under the Company’s 2015 Employee Stock Purchase Plan (the “ Purchase Plan ”). The 2015 Plan and the Purchase Plan are together referred to herein as the “ Plans .” At your request, we are providing this letter to express our opinion on the matters set forth in the numbered paragraphs below.

In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinions set forth herein, which included examination of the documents described on Exhibit A attached hereto (which is incorporated in this letter by reference). Capitalized terms used but not defined in the body of this letter have the meanings given to such terms on Exhibit A hereto.

In giving the opinions contained in this letter, we have assumed the current accuracy of the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Opinion Certificate. Further, to the extent that the Company issues any uncertificated capital stock, we have assumed that any issued Shares will not be reissued by the Company in uncertificated form until any previously issued stock certificate representing such issued Shares has been surrendered to the Company in accordance with Section 158 of the Delaware General Corporation Law and that the Company will properly register any transfer of the Shares from certificated to uncertificated form to the holders of such Shares on the Company’s record of uncertificated securities.

Fitbit, Inc.

February 26, 2016

Page 2

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. We express no opinion with respect to any other laws or with respect to the “blue sky” securities laws of any state.

In our examination of documents for purposes of this opinion, we have relied on the accuracy of representations to us by officers of the Company with respect to, and express no opinion as to, the genuineness of all signatures on original documents by the Company. We have also assumed the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, and the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us. We have also assumed that there has been no amendment to, or revocation of, any corporate proceedings of the Board of Directors or stockholders of the Company referenced in this letter or in Exhibit A hereto.

With respect to our opinion expressed in paragraph (1) below as to the valid existence and good standing of the Company under the laws of the State of Delaware, we have relied upon the Good Standing Certificate and representations made to us by the Company, including those set forth in the Opinion Certificate.

In connection with our opinion expressed in paragraph (2) below, we have assumed that (i) at or prior to the time of the delivery of any Shares, the Registration Statement will have been declared effective under the Securities Act, the registration will apply to all the Shares and will not have been modified or rescinded and (ii) the absence of any future amendment to the Company’s Certificate of Incorporation that would make the Class A Common Stock assessable.

Based upon, and subject to, the foregoing, it is our opinion that:

(1) The Company is a corporation validly existing, in good standing, under the laws of the State of Delaware; and

(2) The 12,886,893 shares of Class A Common Stock that may be issued and sold by the Company upon the exercise of (a) awards granted or to be granted under the 2015 Plan and (b) purchase rights granted or to be granted under the Purchase Plan, when issued, sold and delivered in accordance with the applicable Plan and Plan Agreements and in the manner and for the consideration stated in the Registration Statement and the relevant Prospectus, 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 Prospectus constituting a part thereof and any amendments thereto. 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.

***Remainder of page intentionally left blank***

This opinion is rendered on, and speaks only as of, the date of this letter first written above, is based solely on our understanding of facts in existence as of such date and does not address any potential changes in facts, circumstance 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,

FENWICK & WEST LLP

By:		/s/ Jeffrey R. Vetter
Jeffrey R. Vetter, a Partner

EXHIBIT A

Legal Opinion Regarding S-8 Registration Statement of Fitbit, Inc.

Certain Reviewed Documents

Capitalized terms used but not defined in this Exhibit A have the meanings defined for such terms in the Opinion Letter to which this Exhibit A is attached.

(1)	Copy of the Restated Certificate of Incorporation of the Company, filed with and certified by the Delaware Secretary of State on June 23, 2015 (the “ *Charter* ”).

(2)

The Company’s Restated Bylaws, certified by the Company’s Secretary on June 23, 2015, which have been certified to us by the Company in the Opinion Certificate to be currently in effect and unmodified as of the date hereof (the “ Bylaws ” and collectively with the Charter, the “ Charter Documents ”).

(3)	The Registration Statement.

(4)	The prospectuses prepared for use pursuant to the Registration Statement (the “ *Prospectuses* ”).

(5)	An Opinion Certificate of the Company addressed to us and dated the date of this letter containing certain factual representations (the “ *Opinion Certificate* ”).

(6)	A certificate of verification by Computershare Trust Company, N.A., the Company’s transfer agent, of the number of the Company’s authorized, issued and outstanding shares of capital stock as of February 19, 2016 (the “ *Statement Date* ”).

(7)

A report by the Company, set forth in Annex I of the Opinion Certificate, of (i) the issued and outstanding options, restricted stock units, warrants and rights to purchase or otherwise acquire from the Company capital stock of the Company (including a list of outstanding options and restricted stock units) as of the Statement Date, and (ii) any additional shares of capital stock reserved for future issuance in connection with the Plans and all other plans, agreements or rights to acquire capital stock of the Company as of the Statement Date.

(8)	A Certificate of Good Standing dated February 24, 2016 issued by the Delaware Secretary of State stating that the Company is duly incorporated, in good standing and has a legal corporate existence as of such date ( the “ *Good Standing Certificate* ”).

(9)

The Plans and the forms of agreements used by the Company under the Plans that will govern the Company’s issuance of Shares, copies of which are filed as exhibits to the Company’s Registration Statement on Form S-1 filed with the Commission on May 7, 2015 and Current Report on Form 8-K filed with the Commission on February 9, 2016 (the “ Plan Agreements ”).

(10)

Copies of corporate proceedings of the Company’s Board of Directors and the Company’s stockholders relating to approval of the Charter Documents, the Plans, the Plan Agreements, the filing of the Registration Statement, the reservation of the Shares for sale and issuance pursuant to, and the sale and issuance of the Shares pursuant to, the Plans.

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 26, 2016 relating to the financial statements, which appears in Fitbit, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2015.

/s/ PricewaterhouseCoopers LLP

San Francisco, California

February 26, 2016