Upwork S8 Registration of securities for employees

As filed with the Securities and Exchange Commission on March 2, 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

Upwork Inc.

(Exact name of registrant as specified in its charter)



Delaware						46-4337682
(State or other jurisdiction of incorporation or organization)						(I.R.S. Employer Identification No.)

2625 Augustine Drive, Suite 601

Santa Clara, California 95054

(Address of Principal Executive Offices) (Zip Code)

2018 Equity Incentive Plan

2018 Employee Stock Purchase Plan

(Full titles of the plans)

Hayden Brown

President and Chief Executive Officer

Upwork Inc.

2625 Augustine Drive, Suite 601

Santa Clara, California 95054

(650) 316-7500

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

Please send copies of all communications to:



Gordon K. Davidson, Esq. Robert A. Freedman, Esq. Ran D. Ben-Tzur, Esq. Fenwick & West LLP 801 California Street Mountain View, California 94041 (650) 988-8500						Brian Levey, Esq. Chief Business Affairs and Legal Officer & Secretary Upwork Inc. 2625 Augustine Drive, Suite 601 Santa Clara, California 95054 (650) 316-7500

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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
Common stock, $0.0001 par value per share
- Reserved for future issuance under the 2018 Equity Incentive Plan		5,680,219 ⁽²⁾	$7.92	$44,987,335.00	$5,840.00
- Reserved for future issuance under the 2018 Employee Stock Purchase Plan		908,835 ⁽⁴⁾	$6.73	$6,116,460.00	$794.00
TOTAL		6,589,054		$51,103,795.00	$6,634.00


(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)	Represents additional shares of Registrant’s common stock reserved for issuance under the 2018 Equity Incentive Plan (“2018 Plan”) resulting from the automatic annual increase in the number of authorized shares reserved and available for issuance under the 2018 Plan.
(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 common stock as reported on The Nasdaq Global Select Market on February 27, 2020.
(4)	Represents additional shares of the Registrant’s common stock reserved for issuance under the 2018 Employee Stock Purchase Plan (“Purchase Plan”) resulting from the automatic annual increase in the number of authorized shares reserved and available for issuance under the Purchase Plan.
(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 common stock as reported on The Nasdaq Global Select Market on February 27, 2020. Under the Purchase Plan, the purchase price of a share of common stock is equal to 85% of the fair market value of the Registrant’s 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, Upwork Inc. (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register 5,680,219 additional shares of common stock under the Registrant’s 2018 Equity Incentive Plan and 908,835 additional shares of common stock under the Registrant’s 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 hereby incorporates by reference the contents of the Registrant’s previous registration statement on Form S-8 filed with the Commission on October 3, 2018 (Registration No. 333-227684) and March 7, 2019 (Registration No. 333-230140). In accordance with the instructional note of 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, 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 for the fiscal year ended December 31, 2019, filed with the Commission on March 2, 2020;


			(b)			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

			(c)			the description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-38678) filed with the Commission on September 26, 2018 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 14,925 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

001-38678

3.1

11/8/2018

4.2

Amended and Restated Bylaws of the Registrant.

8-K

001-38678

3.1

1/28/2020

4.3

Form of Common Stock Certificate of the Registrant.

S-1

333-227207

4.1

9/6/2018

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

2018 Equity Incentive Plan and forms of award agreements.

S-1

333-227207

10.4

9/6/2018

99.2

2018 Employee Stock Purchase Plan and form of subscription agreement.

S-1

333-227207

10.5

9/6/2018

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 Santa Clara, State of California, on this 2^nd day of March, 2020.


	Upwork Inc.

Date: March 2, 2020	By:	/s/ Hayden Brown
		Hayden Brown
		President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Hayden Brown and Brian Kinion, 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/ Hayden Brown

President, Chief Executive Officer, and Director

March 2, 2020

Hayden Brown

(Principal Executive Officer)

/s/ Brian Kinion

Chief Financial Officer

March 2, 2020

Brian Kinion

(Principal Financial and Accounting Officer)

/s/ Gregory C. Gretsch

Director

March 2, 2020

Gregory C. Gretsch

/s/ Kevin Harvey

Director

March 2, 2020

Kevin Harvey

/s/ Stephane Kasriel

Director

March 2, 2020

Stephane Kasriel

/s/ Thomas Layton

Director

March 2, 2020

Thomas Layton

/s/ Daniel Marriott

Director

March 2, 2020

Daniel Marriott

/s/ Elizabeth Nelson

Director

March 2, 2020

Elizabeth Nelson

/s/ Leela Srinivasan

Director

March 2, 2020

Leela Srinivasan

/s/ Gary Steele

Director

March 2, 2020

Gary Steele

Upwork (UPWK) S-8Registration of securities for employees