As filed with the U.S. Securities and Exchange Commission on March 5, 2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________________________________________________
FORM S-8
_______________________________________________________________
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________________________________________________________
Guidewire Software, Inc.
(Exact name of registrant as specified in its charter)
_______________________________________________________________
| Delaware | 36-4468504 | |||||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||||||
2850 S. Delaware St., Suite 400
San Mateo, CA 94403
(650) 357-9100
(Address, including zip code and telephone number, of Principal Executive Offices)
GUIDEWIRE SOFTWARE, INC. 2020 STOCK PLAN
(Full title of the plan)
Mike Rosenbaum
Chief Executive Officer
Guidewire Software, Inc.
2850 S. Delaware St., Suite 400
San Mateo, CA 94403
(Name and address of agent for service)
(650) 357-9100
(Telephone number, including area code, of agent for service)
| Copies to: | ||||||||
| Richard A. Kline | Winston King | |||||||
| Sarah Axtell | General Counsel | |||||||
| Latham & Watkins LLP | Guidewire Software, Inc. | |||||||
| 140 Scott Drive | 2850 S. Delaware St., Suite 400 | |||||||
| Menlo Park, CA 94025 | San Mateo, CA 94403 | |||||||
| Telephone: (650) 328-4600 | Telephone: (650) 357-9100 | |||||||
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 definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | x | Accelerated filer | q | ||||||||
| Non-accelerated filer | q | Smaller reporting company | q | ||||||||
| (Do not check if a smaller reporting company) | Emerging growth company | q | |||||||||
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 (2) | Proposed maximum aggregate offering price (2) | Amount of registration fee | ||||||||||
| Common stock, $0.0001 par value per share (to be issued under the 2020 Stock Plan) | 5,000,000 | $114.61 | $573,050,000 | $62,520 | ||||||||||
(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (the “Registration Statement”) shall also cover any additional shares of common stock of Guidewire Software, Inc. (the “Registrant”) that become issuable pursuant to the 2020 Stock Plan (the “2020 Plan”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of common stock.
(2)Estimated in accordance with Rule 457(c) and (h) solely for the purpose of calculating the registration fee on the basis of $114.61 per share, which represents the average of the high and low prices reported on the New York Stock Exchange on March 1, 2021.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant are hereby incorporated by reference into this Registration Statement:
A.The Registrant's Annual Report on Form 10-K for the year ended July 31, 2020, filed with the Commission on September 28, 2020;
B.All other reports of the Registrant filed with the Commission 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 Registrant’s Annual Report referred to in (a) above; and
C.The description of the Registrant's common stock, par value $0.0001 per share (the “Common Stock”), contained in the Registration Statement on Form 10-K (File No. 001-35394) filed with the Commission on September 28, 2020 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to the Registration Statement which indicates that all of the shares of Common Stock registered hereunder have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under current Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions. 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 herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such earlier statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Under no circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
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 corporation to indemnify its directors and officers against liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys' fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 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, whether or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.
The Registrant has adopted provisions in the Registrant's certificate of incorporation and bylaws that limit or eliminate the personal liability of the Registrant's directors and executive officers to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director or executive officer will not be personally liable to the
Registrant or its stockholders for monetary damages or breach of fiduciary duty as a director, except for liability in limited circumstances.
These limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction or rescission.
In addition, the Registrant's bylaws provide that:
•the Registrant will indemnify its directors and executive officers and, in the discretion of its board of directors, certain employees and agents to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and
•the Registrant will advance reasonable expenses, including attorneys' fees, to its directors and executive officers, and in the discretion of its board of directors, to certain employees and agents, in connection with legal proceedings relating to their service for or on behalf of the Registrant, subject to limited exceptions.
The Registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors, executive officers and, at times, their affiliates, to the fullest extent permitted by the DGCL.
The Registrant also maintains general liability insurance which covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
| Incorporated by Reference | ||||||||||||||||||||
| Exhibit Number | Description | Form | Exhibit | Date Filed | File Number | Filed Herewith | ||||||||||||||
| Amended and Restated Certificate of Incorporation | 10-Q | 3.1 | March 5, 2020 | 001-35394 | ||||||||||||||||
| Amended and Restated Bylaws | 8-K | 3.1 | September 14, 2020 | 001-35394 | ||||||||||||||||
| Form of Common Stock Certificate of the Registrant | S-1/A | 4.1 | January 9, 2012 | 333-176667 | ||||||||||||||||
| Opinion of Latham & Watkins LLP. | X | |||||||||||||||||||
| 2020 Stock Plan and forms of agreement thereunder | 10-Q | 10.1 | March 5, 2021 | 001-35394 | ||||||||||||||||
| 23.1 | Consent of Latham & Watkins LLP (included in Exhibit 5.1). | X | ||||||||||||||||||
| Consent of KPMG LLP, independent registered public accounting firm. | X | |||||||||||||||||||
| 24.1 | Power of Attorney (included on the signature page of this S-8). | X | ||||||||||||||||||
Item 9. Undertakings.
(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 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) of this section shall 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.
(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.
(h)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 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 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 Mateo, State of California, on March 5, 2021.
| GUIDEWIRE SOFTWARE, INC. | |||||||||||
| By: | /s/ MIKE ROSENBAUM | ||||||||||
| Mike Rosenbaum | |||||||||||
| Chief Executive Officer | |||||||||||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Guidewire Software, Inc., hereby severally constitute and appoint Mike Rosenbaum, Jeff Cooper, and Winston King, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign for us and in our names in the capacities indicated below any and all amendments (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 or necessary to be done in and about the premises, as full 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 their 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 below.
| Signature | Title | Date | ||||||
| /s/ MIKE ROSENBAUM | Chief Executive Officer and Director (Principal Executive Officer) | March 5, 2021 | ||||||
| Mike Rosenbaum | ||||||||
| /s/ JEFF COOPER | Chief Financial Officer (Principal Financial and Accounting Officer) | March 5, 2021 | ||||||
| Jeff Cooper | ||||||||
| /s/ ANDREW BROWN | Director | March 5, 2021 | ||||||
| Andrew Brown | ||||||||
| /s/ MARGARET DILLON | Director | March 5, 2021 | ||||||
| Margaret Dillon | ||||||||
| /s/ MICHAEL KELLER | Director | March 5, 2021 | ||||||
| Michael Keller | ||||||||
| /s/ PAUL LAVIN | Director | March 5, 2021 | ||||||
| Paul Lavin | ||||||||
| /s/ CATHERINE P. LEGO | Director | March 5, 2021 | ||||||
| Catherine P. Lego | ||||||||
| /s/ MARCUS S. RYU | Director (Chairman of the Board) | March 5, 2021 | ||||||
| Marcus S. Ryu | ||||||||
Exhibit 5.1
March 5, 2021
Guidewire Software, Inc.
2850 S. Delaware St., Suite 400
San Mateo, California 94403
Re: Registration Statement on Form S-8; 5,000,000 shares of Common Stock of Guidewire Software, Inc., par value $0.001 per share
Ladies and Gentlemen:
We have acted as special counsel to Guidewire Software, Inc., a Delaware corporation (the "Company"), in connection with the registration by the Company of 5,000,000 shares of common stock of the Company, par value $0.0001 per share (the "Shares"), issuable under the Company's 2020 Stock Plan (the "Plan").
The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “Act”), filed with the Securities and Exchange Commission (the “Commission”) on March 5, 2021 (the “Registration Statement”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related prospectuses, other than as expressly stated herein with respect to the issuance of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the “DGCL”), and we express no opinion with respect to any other laws.
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, or certificates representing the Shares have been manually signed by an authorized officer of the transfer agent and registrar therefor, and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Plan, assuming in each case that the individual issuances, grants or awards under the Plan are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ LATHAM & WATKINS LLP
LATHAM & WATKINS LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Guidewire Software, Inc.:
We consent to the use of our report dated September 25, 2020, with respect to the consolidated balance sheets of Guidewire Software, Inc. and subsidiaries as of July 31, 2020 and 2019, and the related consolidated statements of operations, comprehensive income (loss), stockholders' equity, and cash flows for each of the years in the three-year period ended July 31, 2020, and the effectiveness of internal control over financial reporting as of July 31, 2020, incorporated herein by reference.
Our report refers to a change in the method of accounting for leases as of August 1, 2019.
/s/ KPMG LLP
Santa Clara, California
March 5, 2021