Securities Registration: Employee Benefit Plan

As filed with the Securities and Exchange Commission on March 31, 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

Smartsheet Inc.

(Exact name of Registrant as specified in its charter)

Washington	20-2954357
(State or other jurisdiction		(I.R.S. Employer
of incorporation or organization)	Identification No.)
	10500 NE 8th Street, Suite 1300
	Bellevue, WA 98004
	(Address of Principal Executive Offices) (Zip Code)
	2018 Equity Incentive Plan
	2018 Employee Stock Purchase Plan
	(Full title of the plans)

Mark P. Mader

President and Chief Executive Officer

Smartsheet Inc.

10500 NE 8th Street, Suite 1300

Bellevue, WA 98004

[phone]

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

Please send copies of all communications to:

Alan C. Smith	Paul T. Porrini
James D. Evans	Chief Legal Officer
Katherine K. Duncan	Smartsheet Inc.
Fenwick & West LLP	10500 NE 8th Street, Suite 1300
1191 Second Avenue, Floor 10	Bellevue, WA 98004
Seattle, WA 98101	[phone]
[phone]

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 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	þ	Accelerated filer	o
Non-accelerated filer	o	Smaller reporting company	o
		Emerging growth company	o

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 to Section 7(a)(2)(B) of the Securities Act.	¨
		CALCULATION OF REGISTRATION FEE
			Amount To Be	Proposed Maximum	Proposed Maximum	Amount of Registration
Title of Securities To Be Registered			Offering Price	Aggregate Offering
		Registered(1)		Per Share	Price	Fee
Class A common stock, no par value per share
- To be issued under the 2018 Equity Incentive Plan			5,909,708(2)	$43.88(3)	$259,317,988(3)	$33,660

- To be issued under the 2018 Employee Stock Purchase Plan	1,181,942(4)	$37.29(5)	$44,074,618(5)	$5,721
TOTAL	7,091,650		$303,392,606	$39,381

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 Class A 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 Class A common stock.
2. Represents an automatic increase to the number of shares available for issuance under the 2018 Equity Incentive Plan (the "2018 Plan") effective February 1, 2020. Shares available for issuance under the 2018 Plan were previously registered on registration statements on Form S-8 filed with the Securities and Exchange Commission (the "Commission") on April 27, 2018 and April 8, 2019 (Registration Nos. 333-224501 and 333-230773).
3. Calculated solely for the purposes of this offering under Rules 457(c) and (h) under the Securities Act 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 March 27, 2020.
4. Represents an automatic increase to the number of shares available for issuance under the 2018 Employee Stock Purchase Plan (the "ESPP") effective as of February 1, 2020. Shares available for issuance under the ESPP were previously registered on registration statements on Form S-8 filed with the Commission on April 27, 2018 and April 8, 2019 (Registration Nos. 333-224501 and 333-230773).
5. Calculated solely for the purposes of this offering under Rules 457(c) and (h) of the Securities Act 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 March 27, 2020 multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP.

REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, Smartsheet Inc. (the "Registrant") is filing this Registration Statement on Form S-8 with the Securities and Exchange Commission (the "Commission") to register 5,909,708 additional shares of Registrant's Class A Common Stock under the Registrant's 2018 Plan and 1,181,942 additional shares of Registrant's Class A Common Stock under the Registrant's ESPP, pursuant to the provisions of those plans providing for an automatic 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 registration statement on Form S-8 filed with the Commission on April 27, 2018 (Registration No. 333- 224501) and the Registrant's registration statement on Form S-8 filed with the Commission on April 8, 2019 (Registration No. 333-230773). In accordance with the instructional note to 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 and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference:

1. the Registrant's Annual Report on Form 10-K for the fiscal year ended January 31, 2020, filed with the Commission on March 31, 2020, pursuant to Section 13 of the Exchange Act;
2. 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
3. the description of the Registrant's common stock contained in the Registrant's Registration Statement on Form 8-A (Registration No. 001-38464) filed with the Commission on April 23, 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 4. Description of Securities.

Not applicable.

Item 5. Interests of Named Experts and Counsel.

As of the date of this Registration Statement, an attorney of Fenwick & West LLP beneficially owns an aggregate of 3,750 shares of the Registrant's Class A common stock.

Item 6. Indemnification of Directors and Officers.

Section 23B.08.510 of the Washington Business Corporation Act (the "WBCA") authorizes Washington corporations to indemnify their officers and directors under certain circumstances against expenses and liabilities incurred in legal proceedings involving them as a result of their services as an officer or director. Section 23B.08.560 of the WBCA authorizes a corporation by provision in its articles of incorporation to agree to indemnify a director and obligate itself to advance or reimburse expenses without regard to the provisions of Sections 23B.08.510 through .550 subject to certain limitations.

As permitted by the WBCA, the Registrant's amended and restated articles of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:

• acts or omissions of a director that involve intentional misconduct or a knowing violation of law;
• conduct in violation of Section 23B.08.310 of the WBCA (relating to unlawful distributions); or
• any transaction from which a director personally received a benefit in money, property, or services to which such director is not legally entitled.

As permitted by the WBCA, the Registrant's amended and restated bylaws provide that:

• the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the WBCA, subject to very limited exceptions;
• the Registrant may indemnify its other employees and agents as set forth in the WBCA;
• the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the WBCA, subject to very limited exceptions; and
• the rights conferred in the restated bylaws are not exclusive.

The Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant's amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is a pending litigation involving a former director of the Registrant for which indemnification is being sought. Reference is also made to the underwriting agreement filed as Exhibit 1.1 to the Form S-1 (File No. 333-222914) for the Registrant's initial public offering and the underwriting agreement filed as Exhibit 1.1 to the Form S-3 (File No. 333-232041) for the Registrant's follow-on offering, which provide for the indemnification of officers, directors, and controlling persons of the Registrant

against certain liabilities, including liabilities under the Securities Act. The indemnification provisions in the Registrant's amended and restated certificate of incorporation, amended and restated bylaws, and the indemnification agreements entered into or to be entered into between the Registrant, the underwriters and each of the Registrants directors and executive officers may be sufficiently broad to permit indemnification of the Registrant's directors and executive officers for liabilities arising under the Securities Act.

The Registrant has directors' and officers' liability insurance for its directors and officers.

Certain of the Registrant's directors are also indemnified by their employers with regard to their service on the Registrant's board of directors.

See also the undertakings set out in response to Item 9 of this Registration Statement.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

The following exhibits are filed herewith:

			Incorporated by Reference
Exhibit	Exhibit Description	Form	File No.	Exhibit	Filing Date	Filed
Number	Herewith
4.1	Amended and Restated Articles of Incorporation	10-Q	001-38464	3.1	06/12/2018
4.2	Amended and Restated Bylaws	10-Q	001-38464	3.2	06/12/2018
4.3	Form of Class A common stock certificate of the Registrant	S-1/A	333-222914	4.1	04/16/2018
5.1	Opinion of Fenwick & West LLP					X
23.1	Consent of Fenwick & West LLP (included in Exhibit 5.1)					X
23.2	Consent of Independent Registered Public Accounting Firm					X
	Power of Attorney (included on the signature page of this Registration
24.1	Statement)					X
99.1	2018 Equity Incentive Plan, and forms of award agreements thereunder	S-1/A	333-222914	10.4	04/16/2018
	2018 Employee Stock Purchase Plan and form of subscription agreement
99.2	thereunder	S-1/A	333-222914	10.5	04/16/2018

Item 9. Undertakings.

1. The undersigned Registrant hereby undertakes:
2. 1. to file, during any period in which offers, or sales are being made, a post-effective amendment to this Registration Statement:
   2. 1. to include any prospectus required by Section 10(a)(3) of the Securities Act;
      2. 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 this 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; and
      3. 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 clauses (A)(1)(i) and (A)(1)(ii) above shall not apply if the information required to be included in a post-effective amendment by those clauses 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;
   3. 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; and
   4. to remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.
3. 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 into this 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.
4. 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 hereby, 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 Bellevue, State of Washington, on this 31st day of March 2020.

SMARTSHEET INC.

By:	/s/ Mark P. Mader
	Mark P. Mader
	Chief Executive Officer and President

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark P. Mader and Paul T. Porrini, 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/ Mark P. Mader

Mark P. Mader

/s/ Jennifer E. Ceran

Jennifer E. Ceran

/s/ Geoffrey T. Barker

Geoffrey T. Barker

/s/ Brent Frei

Brent Frei

/s/ Elena Gomez

Elena Gomez

/s/ Michael Gregoire

Michael Gregoire

/s/ Matthew McIlwain

Matthew McIlwain

/s/ James N. White

James N. White

/s/ Magdalena Yesil

Magdalena Yesil

President, Chief Executive Officer, and Director	March 31, 2020
(Principal Executive Officer)
Chief Financial Officer and Treasurer	March 31, 2020
(Principal Financial and Accounting Officer)
Chair of the Board of Directors	March 31, 2020
Director	March 31, 2020
Director	March 31, 2020
Director	March 31, 2020
Director	March 31, 2020
Director	March 31, 2020
Director	March 31, 2020

Exhibit 5.1

March 31, 2020

Smartsheet Inc.

10500 NE 8th Street, Suite 1300

Bellevue, WA 98004

Ladies and Gentlemen:

At your request, as your counsel, we have examined the Registration Statement on Form S-8 to be filed by Smartsheet Inc., a Washington corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") on or about March 31, 2020 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of 7,091,650 shares (the "Shares") of the Company's Class A common stock, no par value per share (the "Class A Common Stock"), subject to issuance by the Company (a) upon the exercise or settlement of awards 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 "2018 ESPP"). The 2018 Plan and 2018 ESPP are each individually referred to herein as a "Plan" and collectively as 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 or advisable, which included: (a) examination of originals or copies of the Company's current Amended and Restated Articles of Incorporation and Restated Bylaws (collectively, the "Charter Documents"); (b) the Plans; (c) the Registration Statement and the exhibits thereto; (d) certain corporate proceedings of the Company's Board of Directors, including authorized committees thereof, and the Company's shareholders relating to adoption or approval of: (i) the Charter Documents, (ii) the Plans, (iii) the reservation of the Shares for sale and issuance pursuant to the Plans, and (iv) the filing of the Registration Statement and the registration of the Shares under the Securities Act; (e) documents regarding the Company's outstanding and reserved capital stock and other securities; (f) and such other documents as we have deemed necessary or advisable. We have examined such questions of law as we have considered necessary or advisable.

In our examination of documents for purposes of our 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 and if 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 Existence dated March 30, 2020 issued by the Secretary of State of the State of Washington with respect to the Company (the "Washington Certificate"), telephone notice from the office of the Secretary of State of the State of Washington on March 31, 2020 that the information contained in the Washington Certificate continues to be accurate as of such date, and representations and certifications 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 Class A 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 our 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 laws of the State of Washington. 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 7,091,650 Shares of Class A Common Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards granted or to be granted under the 2018 Plan and (b) pursuant to purchase rights granted or to be granted under the 2018 ESPP, 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

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Smartsheet Inc. of our report dated March 31, 2020 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Smartsheet Inc.'s Annual Report on Form 10-K for the year ended January 31, 2020.

/s/ PricewaterhouseCoopers LLP Seattle, Washington

March 31, 2020