As filed with the Securities and Exchange Commission on February 24, 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
FIVE9, INC. (Exact name of registrant as specified in its charter) | ||||||||||||||
Delaware (State or other jurisdiction of incorporation or organization) | 94-3394123 (I.R.S. Employer Identification No.) | |||||||||||||
3001 Bishop Drive, Suite 350 San Ramon, California 94583 (925) 201-2000 (Address of Principal Executive Offices, Including Zip Code) | ||||||||||||||
2014 Equity Incentive Plan 2014 Employee Stock Purchase Plan (Full title of the plan) | ||||||||||||||
Barry Zwarenstein Chief Financial Officer Five9, Inc. 3001 Bishop Drive, Suite 350 San Ramon, CA 94583 (Name and address of agent for service) | ||||||||||||||
(925) 201-2000 (Telephone number, including area code, of agent for service) | ||||||||||||||
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 x | Accelerated filer o | |||||||
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o | |||||||
Emerging growth company o | ||||||||
| 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. | o | ||||
Registration of Additional Securities
Pursuant to General Instruction E
This Registration Statement registers additional shares of common stock of Five9, Inc. (the “Registrant”) to be issued pursuant to the 2014 Equity Incentive Plan and the 2014 Employee Stock Purchase Plan. Accordingly, the Registrant incorporates by reference the contents of the Registration Statement on Form S-8 (File No. 333-195037) filed by the Registrant with the Securities and Exchange Commission (“SEC”) on April 4, 2014, the Registration Statement on Form S-8 (File No. 333-204145) filed by the Registrant with the SEC on May 13, 2015, the Registration Statement on Form S-8 (File No. 333-209918) filed by the Registrant with the SEC on March 4, 2016, the Registration Statement on Form S-8 (File No. 333-216332) filed by the Registrant with the SEC on February 28, 2017, the Registration Statement on Form S-8 (File No. 333-223362) filed with the SEC on March 1, 2018, the Registration Statement on Form S-8 (File No. 333-229845) filed with the SEC on February 25, 2019, the Registration Statement on Form S-8 (File No. 333-236723) filed with the SEC on February 27, 2020, the Registration Statement on Form S-8 (File No. 333-253672) filed with the SEC on March 1, 2021, and the Registration Statement on Form S-8 (File No. 333-236103) filed with the SEC on February 28, 2022.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the SEC are incorporated herein by reference:
(a) the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2022, filed with the SEC on February 24, 2023;
(b) the Registrant’s Current Reports on Form 8-K filed with the SEC on February 9, 2023 and February 22, 2023 (only Item 8.01) (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on Form 8-K); and
(c) the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-36383) filed with the SEC on March 28, 2014, pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any current report on Form 8-K) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits
| Exhibit Number | Description | Filed Herewith | ||||||||||||
Amended and Restated Certificate of Incorporation of Five9, Inc. (filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on April 10, 2014 (File No. 001-36383) and incorporated by reference herein) | ||||||||||||||
Amended and Restated Bylaws of Five9, Inc. (filed as Exhibit 3.1 to the Company's Current Report on Form 8-K filed with the SEC on August 3, 2020 (File No. 001-36383) and incorporated by reference herein) | ||||||||||||||
Five9, Inc. 2014 Equity Incentive Plan and related form agreements (filed as Exhibit 10.9 to Amendment No.1 to the Company’s Registration Statement on Form S-1 filed with the SEC on March 24, 2014 (File No. 333-194258) and incorporated by reference herein) | ||||||||||||||
Five9, Inc. 2014 Employee Stock Purchase Plan (filed as Exhibit 10.10 to Amendment No.1 to the Company’s Registration Statement on Form S-1 filed with the SEC on March 24, 2014 (File No. 333-194258) and incorporated by reference herein). | ||||||||||||||
| X | ||||||||||||||
| X | ||||||||||||||
| X | ||||||||||||||
| 24.1 | Power of Attorney (included on the signature page of this Registration Statement). | X | ||||||||||||
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 Ramon, State of California, on February 24, 2023.
| Five9, Inc. | |||||||||||
| By: | /s/ Michael Burkland | ||||||||||
| Michael Burkland | |||||||||||
| Chief Executive Officer | |||||||||||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael Burkland and Barry Zwarenstein, and each of them, severally, as his or her true and lawful attorneys-in-fact and agents with the power to act, with or without the other, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in his or her capacity as a director or officer or both, as the case may be, of the Company, to sign any and all amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, 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 date indicated:
| Signature | Title | Date | ||||||||||||||||||||||||
| /s/ Michael Burkland | Chief Executive Officer, Director | February 24, 2023 | ||||||||||||||||||||||||
| Michael Burkland | (Principal Executive Officer) | |||||||||||||||||||||||||
| /s/ Barry Zwarenstein | Chief Financial Officer | February 24, 2023 | ||||||||||||||||||||||||
| Barry Zwarenstein | (Principal Financial Officer) | |||||||||||||||||||||||||
| /s/ Leena Mansharamani | Chief Accounting Officer | February 24, 2023 | ||||||||||||||||||||||||
| Leena Mansharamani | (Principal Accounting Officer) | |||||||||||||||||||||||||
| /s/ Jack Acosta | Director | February 24, 2023 | ||||||||||||||||||||||||
| Jack Acosta | ||||||||||||||||||||||||||
| /s/ Kimberly Alexy | Director | February 24, 2023 | ||||||||||||||||||||||||
| Kimberly Alexy | ||||||||||||||||||||||||||
| /s/ Susan Barsamian | Director | February 24, 2023 | ||||||||||||||||||||||||
| Susan Barsamian | ||||||||||||||||||||||||||
| /s/ Michael Burdiek | Director | February 24, 2023 | ||||||||||||||||||||||||
| Michael Burdiek | ||||||||||||||||||||||||||
| /s/ David DeWalt | Director | February 24, 2023 | ||||||||||||||||||||||||
| David DeWalt | ||||||||||||||||||||||||||
| /s/ Julie Iskow | Director | February 24, 2023 | ||||||||||||||||||||||||
| Julie Iskow | ||||||||||||||||||||||||||
| /s/ David Welsh | Director, Lead Independent Director | February 24, 2023 | ||||||||||||||||||||||||
| David Welsh | ||||||||||||||||||||||||||
| /s/ Robert Zollars | Director | February 24, 2023 | ||||||||||||||||||||||||
| Robert Zollars | ||||||||||||||||||||||||||
Calculation of Filing Fee Tables
FORM S-8
Registration Statement Under the Securities Act of 1933
(Form Type)
Five9, Inc.
(Exact Name of Registrant as Specified in its Charter)
Not Applicable
(Translation of Registrant’s Name into English)
Table 1: Newly Registered and Carry Forward Securities
| Security Type | Title of Securities To Be Registered | Fee Calculation Rule | Amount To Be Registered (1) | Proposed Maximum Offering Price Per Share ($) | Proposed Maximum Aggregate Offering Price ($) | Fee Rate | Amount of Registration Fee ($) | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial Effective Date | Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |||||||||||||||||||||||||||
| Newly Registered Securities | ||||||||||||||||||||||||||||||||||||||
| Common Stock, $0.001 par value per share | ||||||||||||||||||||||||||||||||||||||
| Fees to be Paid | Equity | - Reserved for future issuance under the 2014 Equity Incentive Plan | Rules 457(c) and (h) (2) | 3,552,358 (4) | $ | 74.73 | $ | 265,467,713.34 | $0.0001102 | $ | 29,254.54 | |||||||||||||||||||||||||||
| Fees to be Paid | Equity | - Reserved for future issuance under the 2014 Employee Stock Purchase Plan | Rules 457(c) and (h) (3) | 710,471 (5) | $ | 63.52 | $ | 45,129,117.92 | $0.0001102 | $ | 4,973.23 | |||||||||||||||||||||||||||
| Fees Previously Paid (6) | ||||||||||||||||||||||||||||||||||||||
| Carry Forward Securities | ||||||||||||||||||||||||||||||||||||||
| Carry Forward Securities (7) | ||||||||||||||||||||||||||||||||||||||
| Total Offering Amounts | 4,262,829 | N/A | $ | 310,596,831.26 | $ | 34,227.77 | ||||||||||||||||||||||||||||||||
| Total Fees Previously Paid (6) | - | |||||||||||||||||||||||||||||||||||||
| Total Fee Offsets (8) | - | |||||||||||||||||||||||||||||||||||||
| Net Fee Due | $ | 34,227.77 | ||||||||||||||||||||||||||||||||||||
(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 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 common stock.
(2) Estimated in accordance with Rules 457(c) and (h) under 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 common stock as reported on the NASDAQ Global Market on February 23, 2023.
(3) Estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of the average of the high and low prices of the Registrant’s common stock as reported on the NASDAQ Global Market on February 23, 2023. Pursuant to the ESPP, the purchase price of a share of common stock is 85% of the fair market value of the Registrant’s common stock.
(4) Represents shares of common stock that were automatically added to the shares reserved for issuance under the Registrant’s 2014 Equity Incentive Plan (the “2014 Plan”) on January 1, 2023 pursuant to a provision contained in the 2014 Plan. The 2014 Plan provides for an annual automatic increase to the shares reserved for issuance, continuing through January 1, 2024, in an amount equal to 5% of the total number of shares outstanding on December 31st of the preceding calendar year or a lesser number as determined by the Registrant’s Board of Directors.
(5) Represents shares of common stock that were automatically added to the shares reserved for issuance under the Registrant’s 2014 Employee Stock Purchase Plan (the “ESPP”) on January 1, 2023 pursuant to a provision contained in the ESPP. The ESPP provides for an annual automatic increase to the shares reserved for issuance, continuing through January 1, 2024, by the lesser of (i) 1% of the total number of shares of the Registrant’s common stock outstanding on December 31 of the preceding calendar year; (ii) 1,000,000 shares of common stock (subject to adjustment to reflect any split or combination of the Registrant’s common stock); or (iii) such lesser number as determined by the Registrant’s Board of Directors.
(6) The Registrant does not have any fees previously paid.
(7) The Registrant does not have any carry forward securities.
(8) The Registrant does not have any fee offsets.
Table 2: Fee Offset Claims and Sources*
| Registrant or Filer Name | Form or Filing Type | File Number | Initial Filing Date | Filing Date | Fee Offset Claimed | Security Type Associated with Fee Offset Claimed | Security Title Associated with Fee Offset Claimed | Unsold Securities Associated with Fee Offset Claimed | Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | Fee Paid with Fee Offset Source | |||||||||||||||||||||||||
| Rules 457(b) and 0-11(a)(2) | |||||||||||||||||||||||||||||||||||
| Fee Offset Claims | |||||||||||||||||||||||||||||||||||
| Fee Offset Sources | |||||||||||||||||||||||||||||||||||
| Rule 457(p) | |||||||||||||||||||||||||||||||||||
| Fee Offset Claims | |||||||||||||||||||||||||||||||||||
| Fee Offset Sources | |||||||||||||||||||||||||||||||||||
* Not applicable.
Table 3: Combined Prospectuses*
| Security Type | Security Class Title | Amount of Securities Previously Registered | Maximum Aggregate Offering Price of Securities Previously Registered | Form Type | File Number | Initial Effective Date | ||||||||||||||
* Not applicable.
| Exhibit 5.1 | ||
| JONES DAY | ||
| SILICON VALLEY OFFICE . 1755 EMBARCADERO ROAD . PALO ALTO, CALIFORNIA 94303 | ||
| TELEPHONE: +1.650.739.3939 . FACSIMILE: +1.650.739.3900 | ||
February 24, 2023
Five9, Inc.
3001 Bishop Drive, Suite 350
San Ramon, California 94583
Re: Registration Statement on Form S-8 filed by Five9, Inc.
Ladies and Gentlemen:
We have acted as counsel for Five9, Inc., a Delaware corporation (the “Company”), in connection with the Company’s 2014 Equity Incentive Plan and 2014 Employee Stock Purchase Plan (together, the “Plans”). In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of this opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the 4,262,829 shares (the “Shares”) of common stock, par value $0.001 per share, of the Company that may be issued or delivered and sold pursuant to the Plans and the authorized forms of stock option, restricted stock or other applicable agreements thereunder (the “Award Agreements”) will be, when issued or delivered and sold in accordance with such Plans and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware, as currently in effect, and we express no opinion with respect to the laws of any other jurisdiction on the opinion expressed herein. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plans and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered or sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, we have assumed that each award under the Plans will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect registration of the Shares under the Securities Act of 1933 (the “Act”). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, | |||||
| /s/ Jones Day | |||||
| Jones Day | |||||
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated February 24, 2023, with respect to the consolidated financial statements of Five9, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Santa Clara, California
February 24, 2023