Document


As filed with the Securities and Exchange Commission on March 7, 2019
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.)
Upwork Inc.
441 Logue Avenue
Mountain View, California 94043
(Address of Principal Executive Offices) (Zip Code)

2018 Equity Incentive Plan
2018 Employee Stock Purchase Plan
(Full title of the plans)
_____________________________
Stephane Kasriel
President and Chief Executive Officer
Upwork Inc.
441 Logue Avenue
Mountain View, California 94043
(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
Upwork Inc.
441 Logue Avenue
Mountain View, California 94043
(650) 316-7500


_____________________________





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
 
Common stock, $0.0001 par value per share
 
 
 
 
 
 
 
 
 
- Reserved for future issuance under the 2018 Equity Incentive Plan
 
5,322,716(2)
 
$22.71(3)
 
$120,878,881(3) 
 
$14,651
 
- Reserved for future issuance under the 2018 Employee Stock Purchase Plan
 
851,634 (4)
 
$19.30(5)
 
$16,436,537(5) 
 
$1,993
 
TOTAL
 
6,174,350
 
 
 
$137,315,418
 
$16,644
 
 
 
(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 March 6, 2019.
 
(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 March 6, 2019. 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 5,322,716 additional shares of common stock under the Registrant’s 2018 Equity Incentive Plan and 851,634 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). 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, 2018, filed with the Commission on March 7, 2019;
 
 
(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 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
 
 
10-Q
 
001-38678
 
3.1
 
11/8/2018
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.2
 
 
10-Q
 
001-38678
 
3.2
 
11/8/2018
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.3
 
 
S-1
 
333-227207
 
4.1
 
9/6/2018
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.1
 
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
23.1
 
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
23.2
 
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
24.1
 
 
 
 
 
 
 
 
 
 
X
 
 
 
 
 
 
 
 
 
 
 
 
 
99.1
 
 
S-1
 
333-227207
 
10.4
 
9/6/2018
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
99.2
 
 
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 Mountain View, State of California, on this 7th day of March, 2019.
 
Upwork Inc.
 
 
 
Date: March 7, 2019
By:
/s/ Stephane Kasriel
 
 
Stephane Kasriel
 
 
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 Stephane Kasriel 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/ Stephane Kasriel
 
President, Chief Executive Officer, and Director
 
March 7, 2019
Stephane Kasriel
 
(Principal Executive Officer)
 
 
 
 
 
 
 
/s/ Brian Kinion
 
Chief Financial Officer
 
March 7, 2019
Brian Kinion
 
(Principal Financial and Accounting Officer)
 
 
 
 
 
 
 
/s/ Thomas Layton
 
Director
 
March 7, 2019
Thomas Layton
 
 
 
 
 
 
 
 
 
/s/ Gregory C. Gretsch
 
Director
 
March 7, 2019
Gregory C. Gretsch
 
 
 
 
 
 
 
 
 
/s/ Kevin Harvey
 
Director
 
March 7, 2019
Kevin Harvey
 
 
 
 
 
 
 
 
 
/s/ Daniel Marriott
 
Director
 
March 7, 2019
Daniel Marriott
 
 
 
 
 
 
 
 
 
/s/ Elizabeth Nelson
 
Director
 
March 7, 2019
Elizabeth Nelson
 
 
 
 
 
 
 
 
 
/s/ Gary Steele
 
Director
 
March 7, 2019
Gary Steele
 
 
 
 



Exhibit


Exhibit 5.1
 
http://api.tenkwizard.com/cgi/image?quest=1&rid=23&ipage=12765909&doc=4

March 7, 2019
Upwork Inc.
441 Logue Avenue
Mountain View, California 94043
Ladies and Gentlemen:
At your request, as counsel to Upwork 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 7, 2019 in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), the issuance of an aggregate of 6,174,350 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 of stock options and the settlement of restricted stock units granted or to be granted under the Company’s 2018 Equity Incentive Plan (the “2018 Plan”) and (b) pursuant to purchase rights granted or to be granted under the Company’s 2018 Employee Stock Purchase Plan (the “Purchase Plan” and together with the 2018 Plan, the “Plans”).
At your request, we are providing this letter to express our opinion on the matters set forth below in this letter (“our opinion”).
In connection with our opinion, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of: the Company’s current Restated Certificate of Incorporation and Restated Bylaws, as amended (collectively, the “Charter Documents”), the Registration Statement and the exhibits thereto; certain corporate proceedings of the Company’s Board of Directors (the “Board”) and the Company’s stockholders relating to adoption or approval of the Charter Documents, the Plans, the reservation of the Shares for sale and issuance, the filing of the Registration Statement and the registration of the issuance of the Shares under the Securities Act and documents (including a certificate from the Company’s transfer agent) regarding the Company’s outstanding and reserved capital stock and other securities and such other documents as we have deemed advisable, and we have examined such questions of law as we have considered necessary.
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the genuineness of signatures on documents reviewed by us, the conformity to originals and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution and delivery of all documents by each party thereto other than the Company. We have also assumed that any certificates or instruments representing the Shares, when issued, will be executed by the Company by officers of the Company duly authorized to do so. In rendering our opinion, we have also relied upon a Certificate of Good Standing dated March 6, 2019 issued by the Delaware Secretary of State with respect to the Company) and representations and certifications

 

Upwork Inc.
March 7, 2019
Page 2


made to us by the Company, including without limitation representations in a Management Certificate addressed to us of even date herewith that the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law now in effect. We express no opinion with respect to the securities or “blue sky” laws of any state.

Based upon, and subject to, the foregoing, it is our opinion that when the 6,174,350 shares of Common Stock that may be issued and sold by the Company (a) upon the exercise of stock options and the settlement of restricted stock units granted or to be granted under the 2018 Plan and (b) pursuant to purchase rights granted or to be granted under the Purchase Plan, have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including, without limitation, payment and authorization provisions) of the applicable Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares 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 use in connection with 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

 
Exhibit


Exhibit 23.1


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Upwork Inc. of our report dated March 7, 2019 relating to the financial statements, which appears in Upwork Inc.’s Annual Report on Form 10-K for the year ended December 31, 2018.

/s/ PricewaterhouseCoopers LLP
San Jose, California
March 7, 2019