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As filed with the Securities and Exchange Commission on March 27, 2023 | Registration No. 333- |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOCUSIGN, INC.
(Exact name of registrant as specified in its charter)
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| Delaware |
| 91-2183967 |
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
221 Main St., Suite 1550
San Francisco, California 94105
(Address of principal executive offices) (Zip code)
DocuSign, Inc. 2018 Equity Incentive Plan
DocuSign, Inc. 2018 Employee Stock Purchase Plan
(Full title of the plan)
Allan Thygesen
Chief Executive Officer
DocuSign, Inc.
221 Main St., Suite 1550
San Francisco, California 94105
(Name and address of agent for service)
(415) 489-4940
(Telephone number, including area code, of agent for service)
Copies to: | | | | | | | | |
David A. Bell, Esq. Katherine K. Duncan, Esq. Fenwick & West LLP 801 California Street Mountain View, CA 94041 Telephone: (650) 988-8500 |
| James Shaughnessy, Esq. Chief Legal Officer DocuSign, Inc. 221 Main St., Suite 1550 San Francisco, California 94105 (415) 489-4940
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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.
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| ☒ | Large accelerated filer | ☐ | Accelerated filer |
| ☐ | Non-accelerated filer | ☐ | Smaller reporting company |
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| ☐ | 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. ☐
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, this Registration Statement on Form S-8 is being filed by DocuSign, Inc. (the “Registrant”) with the Securities and Exchange Commission (the “Commission”) to register 10,095,197 additional shares of Common Stock reserved for issuance under the 2018 Equity Incentive Plan and 2,019,039 additional shares of Common Stock reserved for issuance under the 2018 Employee Stock Purchase Plan pursuant to the provisions of those plans providing for an automatic annual increase in the number of shares reserved for issuance under such plans. This Registration Statement on Form S-8 hereby incorporates by reference the contents of the Registrant’s earlier registration statements on Form S-8 with the Commission on May 1, 2018 (Registration No. 333-224577), on March 27, 2019 (Registration No. 333-230523), on March 27, 2020 (Registration No. 333-237444), on March 31, 2021 (Registration No. 333-254928) and on March 25, 2022 (Registration No. 333-263856) to the extent not superseded hereby. In accordance with the instructional note to Part I of Form S-8 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 CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
(b) All other reports filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act (other than the reports, or portions thereof, deemed to have been furnished and not filed with the Commission) since the end of the fiscal year covered by the Annual Report referred to in (a) above.
All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. 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 that 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 8. EXHIBITS
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| Incorporated by Reference |
| Exhibit Number | Description | Schedule Form | File Number | Exhibit | Filing Date |
| 4.1 | | 8-K | 001-38465 | 3.1 | May 1, 2018 |
| 4.2 | | 8-K | 001-38465 | 3.1 | March 10, 2022 |
| 4.3 | | S-1/A | 333-223990 | 4.1 | April 17, 2018 |
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| 23.1* | |
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| 23.2* | |
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| 24.1* | Power of Attorney (reference is made to the signature page hereto) |
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| 99.1 | | S-8 | 333-224577 | 10.6 | May 1, 2018 |
| 99.2 | | S-1 | 333-223990 | 10.6 | March 28, 2018 |
| 99.3 | | S-1 | 333-223990 | 10.7 | March 28, 2018 |
| 99.4 | | 10-Q | 001-38465 | 10.5 | June 9, 2022 |
| 99.5 | | S-8 | 333-224577 | 10.9 | May 1, 2018 |
| 107.1* | | | | | |
* Filed herewith
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 Francisco, State of California, on March 27, 2023.
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| DOCUSIGN, INC. |
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| By: | | /s/ Allan Thygesen |
| | Allan Thygesen |
| | Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Allan Thygesen, Cynthia Gaylor, and James Shaughnessy, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, 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 their or his or her substitutes or 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 has been signed by the following persons in the capacities and on the dates indicated.
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| Signature | Title | Date |
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| /s/ Allan Thygesen | Chief Executive Officer and Director | March 27, 2023 |
| Allan Thygesen | (Principal Executive Officer) |
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| /s/ Cynthia Gaylor | Chief Financial Officer | March 27, 2023 |
| Cynthia Gaylor | (Principal Financial Officer and Principal Accounting Officer) |
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| /s/ Mary Agnes Wilderotter | Director | March 27, 2023 |
| Mary Agnes Wilderotter |
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| /s/ James Beer | Director | March 27, 2023 |
| James Beer |
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| /s/ Teresa Briggs | Director | March 27, 2023 |
| Teresa Briggs |
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| /s/ Cain A. Hayes | Director | March 27, 2023 |
| Cain A. Hayes |
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| /s/ Blake J. Irving | Director | March 27, 2023 |
| Blake J. Irving |
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| /s/ Enrique T. Salem | Director | March 27, 2023 |
| Enrique T. Salem |
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| /s/ Peter Solvik | Director | March 27, 2023 |
| Peter Solvik |
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| /s/ Daniel D. Springer | Director | March 27, 2023 |
| Daniel D. Springer |
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Exhibit 107.1
Calculation of Filing Fee Tables
Form S-8
(Form Type)
DocuSign, Inc.
(Exact Name of Registrant as Specified in its Charter)
Newly Registered Securities
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| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered (1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Equity | Common Stock, $0.0001 par value per share | Rule 457(c) and Rule 457(h) | 10,095,197 (2) | $56.19 (3) | 567,249,120 | 0.0001102 | $62,511 |
| Equity | Common Stock, $0.0001 par value per share | Rule 457(c) and Rule 457(h) | 2,019,039 (4) | $47.76 (5) | 96,432,332 | 0.0001102 | $10,627 |
| Total Offering Amounts | | | | $73,138 |
| Total Fees Previously Paid | | | | - |
Total Fee Offsets (6) | | | | - |
| Net Fee Due | | | | $73,138 |
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (the “Registration Statement”) shall also cover any additional shares of Registrant’s common stock, par value $0.0001 (the “Common Stock”), that become issuable in respect of the securities identified in the above table under the 2018 Equity Incentive Plan (the “2018 Plan”) or 2018 Employee Stock Purchase Plan (the “2018 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without Registrant’s receipt of consideration that results in an increase in the number of outstanding shares of Registrant’s Common Stock.
(2) Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 Plan on February 1, 2023 pursuant to an “evergreen” provision contained in the 2018 Plan. Pursuant to such provision, the number of shares reserved for issuance under the 2018 Plan automatically increases in an amount equal to (i) 5% of the total number of shares of the Registrant’s capital stock outstanding on January 31st or (ii) a lesser number of shares as determined by the Registrant’s board of directors.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $56.19 per share, which is the average of the high and low prices of Common Stock on March 24, 2023, as reported on the Nasdaq Global Select Market.
(4) Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 ESPP on February 1, 2023, pursuant to an “evergreen” provision contained in the 2018 ESPP. Pursuant to such provision, the number of shares reserved for issuance under the 2018 ESPP automatically increases on February 1st of each year in an amount equal to the lesser of (i) 1% of the total number of shares of the Registrant’s common stock outstanding on January 31st, (ii) 3,800,000 shares, or (iii) a lower number determined by the Registrant’s board of directors.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of eighty-five percent (85%) of $56.19 per share, which is the average of the high and low prices of Common Stock on March 24, 2023, as reported on the Nasdaq Global Select Market. Pursuant to the 2018 ESPP, the purchase price of the shares of Common Stock reserved for issuance thereunder will be at least eighty-five (85%) of the lower of the fair market value of a share of Common Stock on the first day of trading of the offering period or on the exercise date.
(6) The Registrant does not have any fee offsets.
FENWICK
801 California Street
Mountain View, CA 94041
650.988.8500
Fenwick.com
March 27, 2023
DocuSign, Inc.
221 Main St., Suite 1550
San Francisco, CA 94105
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
As counsel to DocuSign, Inc., a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about March 27, 2023 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 12,114,236 shares (the “Shares”) of the Company’s Common Stock, $0.0001 par value per share (the “Common Stock”), subject to issuance by the Company (a) upon the exercise or settlement of equity awards to be granted under the Company’s 2018 Equity Incentive Plan (the “2018 EIP”) and (b) pursuant to purchase rights to acquire shares of Common Stock to be granted under the Company’s 2018 Employee Stock Purchase Plan (the “ESPP”, and together with the 2018 EIP, the “Plans”).
As to matters of fact relevant to the opinions rendered herein, we have examined such documents, certificates and other instruments which we have deemed necessary or advisable, including a certificate addressed to us and dated the date hereof executed by the Company (the “Opinion Certificate”). We have not undertaken any independent investigation to verify the accuracy of any such information, representations or warranties or to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of any fact should be drawn from our representation of the Company or the rendering of the opinion set forth below. We have not considered parol evidence in connection with any of the agreements or instruments reviewed by us in connection with this letter.
In our examination of documents for purposes of this letter, we have assumed, and express no opinion as to, the genuineness and authenticity of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, that each document is what it purports to be, the conformity to originals of all documents submitted to us as copies or facsimile copies, the absence of any termination, modification or waiver of or amendment to any document reviewed by us (other than as has been disclosed to us), the legal competence or capacity of all persons or entities (other than the Company) executing the same and (other than the Company) the due authorization, execution and delivery of all documents by each party thereto. We have also assumed the conformity of the documents filed with the Commission via the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”), except for required EDGAR formatting changes, to physical copies submitted for our examination.
The opinions in this letter are limited to the existing General Corporation Law of the State of Delaware now in effect. We express no opinion with respect to any other laws.
Based upon, and subject to, the foregoing, it is our opinion that the Shares, when issued and sold by the Company in accordance with the terms (including, without limitation, payment and authorization provisions) of the applicable Plan and the applicable form of award agreement thereunder, against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share), and duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, 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 your use in connection with the 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