SEC Document
As filed with the Securities and Exchange Commission on May 20, 2016
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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salesforce.com, inc.
(Exact name of registrant as specified in its charter)
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Delaware | | | 94-3320693 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
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The Landmark @ One Market, Suite 300
San Francisco, California 94105
(415) 901-7000
(Address of principal executive offices) (Zip code)
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MetaMind, Inc. 2014 Stock Incentive Plan
(Full title of the plan)
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Burke F. Norton, Esq.
Chief Legal Officer &
Chief of Corporate and Government Affairs
salesforce.com, inc.
The Landmark @ One Market, Suite 300
San Francisco, California 94105
(415) 901-7000
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
David J. Segre, Esq.
Michael E. Coke, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer | | x | | | | Accelerated filer | | ¨ |
Non-accelerated filer | | ¨ | | (Do not check if a smaller reporting company) | | Smaller reporting company | | ¨ |
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CALCULATION OF REGISTRATION FEE
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| 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, $0.001 par value per share | | 289,081(2) | | $63.58(3) | | $18,379,770 | | $1,851 | |
(1) Pursuant to Rule 416(a) of 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 under the MetaMind, Inc. 2014 Stock Incentive Plan from time to time (the “MetaMind Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
(2) Represents 77,163 shares of the Registrant’s common stock issuable in connection with stock options and restricted stock units awarded under the MetaMind Plan that were assumed by the Registrant on April 1, 2016 (the “Assumed Awards”), upon the closing of the acquisition of MetaMind, Inc. and 211,918 shares of the Registrant’s common stock for future issuance under the MetaMind Plan, subject to its terms and conditions.
(3) Estimated in accordance with Rule 457(h) based on $6.3592, the weighted average exercise price per share of the outstanding options to purchase 55,110 shares of common stock and, with respect to 22,053 shares of common stock subject to restricted stock units and the 211,918 shares available for further issuance, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on May 17, 2016, of $77.06.
SALESFORCE.COM, INC.
REGISTRATION STATEMENT ON FORM S-8
This Registration Statement on Form S-8 is being filed by salesforce.com, inc. (the “Company” or the “Registrant”) to register 289,081 shares of common stock of the Registrant, pursuant to the Company’s assumption the MetaMind Plan and outstanding awards thereunder.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
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Item 2. | Registrant Information and Employee Plan Annual Information. |
The documents containing the information specified in this Item 2 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. Such documents, together with the documents incorporated by reference herein pursuant to Item 3 of Part II of this Registration Statement on Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act, and are available upon written request to: Corporate Secretary, The Landmark @ One Market, Suite 300, San Francisco, California 94105, (415) 901-7000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. | Incorporation of Documents by Reference |
The Company hereby incorporates by reference in this registration statement the following documents:
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| (a) | The Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2016, filed with the Commission on March 7, 2016. |
| (b) | The information specifically incorporated by reference into the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2016 from the Company’s definitive proxy statement on Schedule 14A, filed with the Commission on April 21, 2016. |
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| (c) | The Company’s Quarterly Report on Form 10-Q for the quarter ended April 30, 2016, filed with the Commission on May 20, 2016. |
| (d) | The Company’s Current Reports on Form 8-K filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on February 2, 2016, February 24, 2016, March 21, 2016, March 22, 2016, April 20, 2016 and May 18, 2016, except to the extent that information therein is furnished and not filed with the Commission. |
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| (e) | The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed under the Exchange Act on June 21, 2004, including any amendment or report filed for the purpose of updating such description (No. 001-32224). |
In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.
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Item 4. | Description of Securities |
Not applicable.
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Item 5. | Interests of Named Experts and Counsel |
Not applicable.
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Item 6. | Indemnification of Directors and Officers |
Section 102(b) of the Delaware General Corporation Law authorizes a corporation to provide in its Certificate of Incorporation that a director of the corporation shall not be personally liable to a corporation or its stockholders for monetary damages for breach or alleged breach of the director’s “duty of care.” While this statute does not change the directors’ duty of care, it enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on a director’s duty of loyalty or liability for acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends or stock redemptions or repurchases, or for any transaction from which the director derives an improper personal benefit. As permitted by the statute, the Company has adopted provisions in its Certificate of Incorporation which eliminate to the fullest extent permissible under Delaware law the personal liability of its directors to the Company and its stockholders for monetary damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware allows for the indemnification of officers, directors, employees and agents of a corporation. The Bylaws of the Company provide for indemnification of its directors, officers, employees and agents to the full extent permitted by Delaware law, including those circumstances in which indemnification would otherwise be discretionary under Delaware law. The Company’s Bylaws also empower the Company to enter into indemnification agreements with its directors and officers and require it to purchase insurance to the extent reasonably available on behalf of any person whom it is required or permitted to indemnify. The Company has entered into agreements with its directors and its executive officers that require the Company to indemnify such persons to the fullest extent permitted under Delaware law against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or an executive officer of the Company or any of its affiliated enterprises. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. The Company intends to enter into indemnification agreements with any new directors and executive officers in the future.
Section 145 of the General Corporation Law of the State of Delaware provides for indemnification in terms sufficiently broad to indemnify such individuals, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
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Item 7. | Exemption From Registration Claimed |
Not applicable.
The Exhibit Index is hereby incorporated by reference.
A. The undersigned Registrant hereby undertakes:
(1) 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 percent 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)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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 this registration statement.
(2) 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) 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.
B. 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. 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.
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 Francisco, State of California, on May 20, 2016.
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| salesforce.com, inc. |
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By: | | /s/ Burke F. Norton |
| | Burke F. Norton Chief Legal Officer & Chief of Corporate and Government Affairs |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints Marc Benioff, Burke Norton and Mark Hawkins, and each of them, as his or her true and lawful attorney in fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent 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 attorney in fact, proxy and agent, or his substitute, 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 on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
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Signature | | Title | | Date |
/s/ Marc Benioff | | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | | May 20, 2016 |
Marc Benioff | |
/s/ Mark Hawkins | | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | | May 20, 2016 |
Mark Hawkins | |
/s/ Joe Allanson | | Executive Vice President, Chief Accounting Officer and Corporate Controller (Principal Accounting Officer) | | May 20, 2016 |
Joe Allanson | | |
/s/ Keith Block | | Director, Vice Chairman, President and Chief Operating Officer | | May 20, 2016 |
Keith Block | | |
/s/ Craig Conway | | Director | | May 20, 2016 |
Craig Conway | | |
/s/ Alan Hassenfeld | | Director | | May 20, 2016 |
Alan Hassenfeld | | |
/s/ Neelie Kroes | | Director | | May 20, 2016 |
Neelie Kroes | | |
/s/ Colin Powell | | Director | | May 20, 2016 |
Colin Powell | | |
/s/ Sanford R. Robertson | | Director | | May 20, 2016 |
Sanford R. Robertson | | |
/s/ John V. Roos | | Director | | May 20, 2016 |
John V. Roos | | |
/s/ Lawrence Tomlinson | | Director | | May 20, 2016 |
Lawrence Tomlinson | | |
/s/ Robin Washington | | Director | | May 20, 2016 |
Robin Washington | | |
/s/ Maynard Webb | | Director | | May 20, 2016 |
Maynard Webb | | |
/s/ Susan Wojcicki | | Director | | May 20, 2016 |
Susan Wojcicki | | |
EXHIBIT INDEX
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4.1 | | MetaMind, Inc. 2014 Stock Incentive Plan, as amended. |
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5.1 | | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. |
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23.1 | | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm. |
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23.2 | | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto). |
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24.1 | | Power of Attorney (included in signature page to this registration statement). |
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