As filed with the U.S. Securities and Exchange Commission on April 13, 2020

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Fastly, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   27-5411834

(State or other jurisdiction of

Incorporation or organization)

 

(I.R.S. Employer

Identification No.)

475 Brannan Street, Suite 300

San Francisco, CA 94107

(844) 432-7859

(Address of principal executive offices) (Zip code)

Fastly, Inc. 2019 Equity Incentive Plan

Fastly, Inc. 2019 Employee Stock Purchase Plan

(Full titles of the plans)

 

 

Paul Luongo

General Counsel and Senior Vice President, Trust

Fastly, Inc.

475 Brannan Street, Suite 300, San Francisco, CA 94107

(844) 432-7859

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

 

 

Copies to:

 

Seth J. Gottlieb

Cooley LLP

3175 Hanover Street

Palo Alto, California 94304

(650) 843-5000

 

Paul Luongo

General Counsel and

Senior Vice President, Trust

Fastly, Inc.

475 Brannan Street, Suite 300

San Francisco, CA 94107

(844) 432-7859

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

Class A Common Stock, par value $0.00002 per share

               

– 2019 Equity Incentive Plan

  4,750,880 (2)   $17.95 (4)   $85,278,296.00   $11,069.13

– 2019 Employee Stock Purchase Plan

  950,176 (3)   $15.25 (5)   $14,490,184.00   $1,880.83

Total

  5,701,056       $99,768,480.00   $12,949.96

 

 

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Class A common stock of Fastly, Inc. (“Fastly”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of Fastly’s Class A common stock.

(2)

Represents 4,750,880 additional shares of Class A common stock available for issuance as a result of the annual evergreen increase on January 1, 2020 under Fastly’s 2019 Equity Incentive Plan (the “2019 Plan”).

(3)

Represents 950,176 additional shares of Class A common stock available for issuance as a result of the annual evergreen increase on January 1, 2020 under Fastly’s 2019 Employee Stock Purchase Plan (the “2019 ESPP”).

(4)

Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of $17.95, the average of the high and low prices of Fastly’s Class A common stock as reported on The New York Stock Exchange on April 6, 2020.

(5)

Estimated in accordance with Rule 457(h) solely for purposes of calculating the registration fee on the basis of 85% of $17.95, the average of the high and low prices of Fastly’s Class A common stock as reported on The New York Stock Exchange on April 6, 2020. Pursuant to the 2019 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.

 

 

 

EXPLANATORY NOTE

2019 Equity Incentive Plan

The 2019 Equity Incentive Plan (the “2019 Plan”) of Fastly, Inc. (“Fastly”) provides that the total number of shares reserved for issuance under the 2019 Plan will automatically increase on January 1st of each calendar year, from January 1, 2020 to January 1, 2029, in an amount equal to 5% of the total number of shares of Fastly’s capital stock outstanding on the last day of the preceding year, or a lesser number of shares determined by Fastly’s Board of Directors. Accordingly, on January 1, 2020, the number of shares of Class A common stock that may be issued upon the exercise of incentive stock options under the 2019 Plan increased by an additional 4,750,880 shares (or 5% of the outstanding shares of Fastly’s Capital Stock (as defined in the 2019 Plan) as of December 31, 2019).

2019 Employee Stock Purchase Plan

The 2019 Employee Stock Purchase Plan (the “2019 ESPP”) of Fastly provides that the total number of shares reserved for issuance under the 2019 ESPP will automatically increase on January 1st of each calendar year, from January 1, 2020 to January 1, 2029, by the lesser of (i) one percent (1%) of the total number of shares of Capital Stock (as defined in the 2019 ESPP) outstanding on the last day of the immediately preceding calendar year, and (ii) 2,500,000 shares of common stock; provided that prior to the date of any such increase, Fastly’s Board of Directors may determine that such increase will be less than the amount set forth in clauses (i) and (ii). Accordingly, on January 1, 2020, the number of shares of Class A common stock reserved under the 2019 ESPP increased by an additional 950,176 shares (or 1% of the outstanding shares of Fastly’s capital stock as of December 31, 2019).

These additional shares of Class A common stock are securities of the same class as other securities for which the Registration Statement on Form S-8 (File No. 333-231558) (“Prior Form S-8”) was filed with the Securities and Exchange Commission (“Commission”) on May 17, 2019.

This Registration Statement relates to securities of the same class as that to which the Prior Form S-8 relates, and is submitted in accordance with General Instruction E to Form S-8. Pursuant to General Instruction E of Form S-8, the contents of the Prior Form S-8, to the extent relating to the registration of Common Stock issuable under the 2019 Plan and 2019 ESPP, are incorporated herein by reference and made part of this Registration Statement, except as amended hereby.

PART II

ITEM 8.    EXHIBITS

 

        

Incorporated by Reference

    

Exhibit
Number

 

Description

  

Form

  

SEC File No.

  

Exhibit

  

Filing Date

  4.1   Amended and Restated Certificate of Incorporation.    8-K    001-38897    3.1    05/21/2019
  4.2   Amended and Restated Bylaws.    S-1/A    333-230953    3.3    05/06/2019
  4.3   Form of Class A Common Stock Certificate.    S-1/A    333-230953    4.1    05/06/2019
  5.1*   Opinion of Cooley LLP.    —      —      —      —  
23.1*   Consent of Cooley LLP (included in Exhibit 5.1).    —      —      —      —  
23.2*   Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.    —      —      —      —  
24.1*   Power of Attorney (included on the signature page of this Form S-8).    —      —      —      —  
99.1   2019 Equity Incentive Plan.    S-1/A    333-230953    10.4    05/06/2019
99.2   Forms of Option Agreement, Notice of Stock Option Grant and Exercise Notice under the 2019 Equity Incentive Plan.    S-1/A    333-230953    10.5    05/06/2019
99.3   Form of Restricted Stock Unit Award Agreement under 2019 Equity Incentive Plan.    10-Q    001-38897    10.3    08/09/2019
99.4   2019 Employee Stock Purchase Plan.    S-1/A    333-230953    10.7    05/06/2019

 

*

Filed herewith

SIGNATURES

Pursuant to the requirements of the Securities Act, 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 13th day of April, 2020.

 

FASTLY, INC.
By:   /s/Joshua Bixby
  Joshua Bixby
  President & Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Artur Bergman, Adriel Lares and Paul Luongo, each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, 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, her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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

 

Signature

  

Title

 

Date

/s/ Joshua Bixby

Joshua Bixby

   Chief Executive Officer and Director (Principal Executive Officer),   April 13, 2020

/s/ Adriel Lares

Adriel Lares

  

Chief Financial Officer

(Principal Financial and Accounting Officer)

  April 13, 2020

/s/ Aida Álvarez

Aida Álvarez

   Director   April 13, 2020

/s/ Artur Bergman

Artur Bergman

   Director   April 13, 2020

/s/ Sunil Dhaliwal

Sunil Dhaliwal

   Director   April 13, 2020

/s/ David Hornik

David Hornik

   Director   April 13, 2020

/s/ Christopher B. Paisley

Christopher B. Paisley

   Director   April 13, 2020

/s/ Kelly Wright

Kelly Wright

   Director   April 13, 2020

Exhibit 5.1

 

LOGO

Seth J. Gottlieb

+1 650 843 5864

sgottlieb@cooley.com

April 13, 2020

Fastly, Inc.

475 Brannan Street, Suite 300

San Francisco, CA 94107

Ladies and Gentlemen:

We have acted as counsel to Fastly, Inc., a Delaware corporation (the “Company”), in connection with the filing of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to (a) 4,750,880 shares of Class A common stock, par value $0.00002 per share, (the “2019 EIP Shares”) issuable pursuant to the Company’s 2019 Equity Incentive Plan (the “2019 EIP”) and (b) 950,176 shares of Class A common stock, par value $0.00002 per share (together with the 2019 EIP Shares, the “Shares”), issuable pursuant to the Company’s 2019 Employee Stock Purchase Plan (together with the Company’s 2019 EIP, the “Plans”).

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, (c) the Plans, and (d) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where due authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

Cooley LLP    3175 Hanover Street    Palo Alto, CA    94304-1130

t: (650) 843-5000 f: (650) 849-7400 cooley.com

LOGO

Fastly, Inc.

April 13, 2020

Page Two

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.

Sincerely,

Cooley LLP

 

By:  

/s/Seth J. Gottlieb

 

Seth J. Gottlieb

 

Cooley LLP    3175 Hanover Street    Palo Alto, CA    94304-1130

t: (650) 843-5000 f: (650) 849-7400 cooley.com

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 3, 2020 relating to the consolidated financial statements of Fastly, Inc. and subsidiaries (the “Company”) appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2019.

/s/ Deloitte & Touche LLP

San Francisco, California

April 13, 2020