As filed with the U.S. Securities and Exchange Commission on November 12, 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

 

 

Twilio Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   26-2574840

( (State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification Number)

101 Spear Street, First Floor

San Francisco, California 94105

(Address of Registrant’s Principal Executive Offices)

Segment.io, Inc. Fourth Amended and Restated 2013 Stock Option and Grant Plan, as amended

(Full title of the plan)

Jeff Lawson

Chief Executive Officer

Twilio Inc.

101 Spear Street, First Floor

San Francisco, California 94105

(415) 390-2337

(Name, address and telephone number of agent for service)

Copies to:

 

Jon C. Avina

Seth J. Gottlieb

Cooley LLP

3175 Hanover Street

Palo Alto, California 94304

(650) 843-5000

 

Karyn Smith, Esq.

General Counsel

Twilio Inc.

101 Spear Street, First Floor

San Francisco, California 94105

(415) 390-2337

 

 

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” and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

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 13(a) of the Exchange 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 $0.001 per share:

               

- Segment.io, Inc. Fourth Amended and Restated 2013 Stock Option and Grant Plan, as amended (Stock Option Awards)

  1,030,638 (2)   $45.45 (3)   $46,842,497.10   $5,110.52

- Segment.io, Inc. Fourth Amended and Restated 2013 Stock Option and Grant Plan, as amended (Restricted Stock Units)

  158,748 (2)   $264.69 (4)   $42,019,008.12   $4,584.28

Total

  1,189,386       $88,861,505.22   $9,694.80

 

 

 

(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 Twilio Inc. (the “Registrant”) that become issuable under the plan 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 the Registrant’s Class A common stock.

(2)

Pursuant to an Agreement and Plan of Reorganization by and among the Registrant, Scorpio Merger Sub, Inc., Segment.io, Inc. (“Segment”), and Shareholder Representative Services LLC, as the Stockholder Representative, dated as of October 12, 2020 (the “Merger Agreement”), the Registrant, on November 2, 2020, assumed the Segment.io, Inc. Fourth Amended and Restated 2013 Stock Option and Grant Plan, as amended (the “Segment Plan”), and the outstanding unvested options to purchase shares of Segment common stock and the outstanding unvested restricted stock unit awards settleable into shares of Segment common stock thereunder (as well as any outstanding vested options that were assumed pursuant to the Merger Agreement), and such options and restricted stock unit awards became exercisable for or settleable into shares of the Registrant’s Class A common stock, as applicable, subject to appropriate adjustments.

(3)

Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price of the outstanding unvested options under the Segment Plan and assumed by the Registrant.

(4)

Estimated in accordance with Rule 457(c) and (h) 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 November 10, 2020.

 

 

 

EXPLANATORY NOTE

Pursuant to the Merger Agreement, Scorpio Merger Sub, Inc. merged with and into Segment (the “Merger”). As a result of the Merger, Segment became a wholly owned subsidiary of the Registrant. In accordance with the Merger Agreement, the Registrant assumed the Segment Plan and each outstanding and unexercised unvested option to purchase Segment common stock, each outstanding and unvested restricted stock unit award settleable into shares of Segment common stock, and certain outstanding and unexercised vested options to purchase Segment common stock (each, an “Assumed Security” and collectively, the “Assumed Securities”) under the Segment Plan. Each Assumed Security was converted into an option or restricted stock unit award, as applicable, for shares of the Registrant’s Class A common stock, subject to adjustment for (i) the number of shares underlying each Assumed Security and (ii) with respect to the unexercised options, the exercise price of each such option pursuant to the equity award exchange ratio set forth in the Merger Agreement.

The Registrant is filing this Registration Statement on Form S-8 (the “Registration Statement”) for the purpose of registering up to 1,189,386 of its shares of Class A common stock issuable upon the exercise or settlement, as applicable, of the Assumed Securities. These additional shares of Class A common stock are securities of the same class as other securities for which registration statements on Form S-8 were filed with the Securities and Exchange Commission (the “Commission”) on March 2, 2020 (File No. 333-236819), February 8, 2019 (File No. 333-229580), May 10, 2018 (File No. 333-224812) and June 23, 2016 (File No. 333-212191).

PART II

Information Required in the 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:

 

  •  

The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the SEC on March 2, 2020 (the “Annual Report”);

 

  •  

All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year covered by the Annual Report (other than the portions of these documents not deemed to be filed); and

 

  •  

The description of the Registrant’s Class A Common Stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-37806) filed with the Commission on June 17, 2016 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description, and the description of Registrant’s common stock and preferred stock as set forth in Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the Commission on March 2, 2020.

All reports and definitive proxy or information statements filed 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 de-registers 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 statements as set forth therein. Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K prior or subsequent to the date hereof shall not be 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.

 

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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 (the “DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement for expenses incurred, arising under the Securities Act. In addition, Section 145 of the DGCL provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, where or not the corporation would have the power to indemnify the director or officer against such liability under Section 145 of the DGCL.

The Registrant’s amended and restated certificate of incorporation contains provisions that limit the liability of its directors, officers, employees, and other agents to the maximum extent permitted by the DGCL, as it now exists or may in the future be amended, and the Registrant’s second amended and restated bylaws provide for indemnification of its directors, officers, employees, and other agents to the maximum extent permitted by the DGCL.

The Registrant has entered into indemnification agreements with its directors and officers, whereby the Registrant has agreed to indemnify its directors and officers to the fullest extent permitted by law, including indemnification against expenses and liabilities incurred in legal proceedings to which the director or officer was, or is threatened to be made, a party by reason of the fact that such director or officer is or was a director, officer, employee or agent of the Registrant, provided that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, the best interest of the Registrant.

The Registrant maintains insurance policies that indemnify its directors and officers against various liabilities arising under the Securities Act and the Exchange Act that might be incurred by any director or officer in his or her capacity as such.

See also the Undertakings set forth in the response to Item 9 herein.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

 

                 Incorporated by Reference  

Exhibit
Number

   Description    Schedule
Form 		     File Number      Exhibit      Filing Date  
4.1    Amended and Restated Certificate of Incorporation of Twilio Inc.      S-1/A        333-211634        3.1        June 13, 2016  
4.2    Second Amended and Restated Bylaws of Twilio Inc.      10-Q        001-37806        3.1        August 4, 2020  
4.3    Form of Class A Common Stock Certificate of Twilio Inc.      S-1        333-211634        4.1        May 26, 2016  
5.1    Opinion of Cooley LLP.            
23.1    Consent of Cooley LLP (included in Exhibit 5.1).            
23.2    Consent of KPMG LLP, independent registered public accounting firm.            
24.1    Power of Attorney (included on the signature page of this Form S-8).            
99.1    Segment.io, Inc. Fourth Amended and Restated 2013 Stock Option and Grant Plan, as amended, and related form agreements.            

 

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Item 9. Undertakings.

1. The undersigned Registrant hereby undertakes:

(a) 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;

(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% 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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

(b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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.

2. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 and will be governed by the final adjudication of such issue.

 

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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 12th day of November, 2020.

 

TWILIO INC.
By:  

/s/ Jeffrey Lawson

 

Jeffrey Lawson

Chief Executive Officer

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey Lawson, Khozema Shipchandler and Karyn Smith, 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/ Jeffrey Lawson

Jeffrey Lawson

  

Chief Executive Officer and Director

(Principal Executive Officer)

   November 12, 2020

/s/ Khozema Shipchandler

Khozema Shipchandler

   Chief Financial Officer (Principal Accounting and Financial Officer)    November 12, 2020

/s/ Byron Deeter

Byron Deeter

   Director    November 12, 2020

/s/ Donna Dubinsky

Donna Dubinsky

   Director    November 12, 2020

/s/ Elena Donio

Elena Donio

   Director    November 12, 2020

/s/ Erika Rottenberg

Erika Rottenberg

   Director    November 12, 2020

/s/ Jeff Epstein

Jeff Epstein

   Director    November 12, 2020

/s/ Jeff Immelt

Jeff Immelt

   Director    November 12, 2020

/s/ Rick Dalzell

Rick Dalzell

   Director    November 12, 2020

 

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