As filed with the Securities and Exchange Commission on August 3, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________________________________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________________________________________________________________________
BANDWIDTH INC.
(Exact name of registrant as specified in its charter)
___________________________________________________________________________________________________
| Delaware | 56-2242657 | |||||||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) | |||||||
2230 Bandmate Way
Raleigh, NC 27607
(Address, including zip code of principal executive offices)
Bandwidth Inc. Second Amended and Restated 2017 Incentive Award Plan
(Full title of the plan)
David A. Morken
Chairman and Chief Executive Officer
Bandwidth Inc.
2230 Bandmate Way
Raleigh, NC 27607
(800) 808-5150
(Name, address and telephone number of agent for service)
___________________________________________________________________________________________________
Copies to:
R. Brandon Asbill, Esq. General Counsel Bandwidth Inc. 2230 Bandmate Way Raleigh, NC 27607 (800) 808-5150 | Michael Benjamin, Esq. Jessica Lennon, Esq. Latham & Watkins LLP 885 Third Avenue New York, NY 10022 (212) 906-1200 | |||||||
___________________________________________________________________________________________________
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 | ☐ (do not check if a smaller reporting company) | 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. ☐
___________________________________________________________________________________________________
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SECURITIES
The purpose of this Registration Statement is to register 2,500,000 additional shares of Class A common stock, $0.001 par value per share (the “Class A Common Stock”), of Bandwidth Inc. (the “Company”) for issuance under the Bandwidth Inc. Second Amended and Restated 2017 Incentive Award Plan (as amended and/or restated from time to time, the “2017 Plan”). The 2017 Plan represents an amendment and restatement of the Bandwidth Inc. Amended and Restated 2017 Incentive Award Plan and, among other things, increases the number of shares available for issuance thereunder by 2,500,000 shares of Class A Common Stock. On April 4, 2023, the Company filed with the Securities and Exchange Commission (the “SEC”) a definitive proxy statement that included a proposal for stockholders to approve the 2017 Plan, and the 2017 Plan was approved by the Company’s stockholders on May 18, 2023.
The Class A Common Stock registered hereunder is in addition to the (a) 4,790,520 shares of Class A Common Stock issued or issuable under the 2017 Plan and previously registered on the Company’s Registration Statement on Form S-8 filed with the SEC on August 4, 2022 (Commission File No. 333-266509), and the (b) (i) 1,250,000 shares of Class A Common Stock issued or issuable under the 2017 Plan, (ii) 3,312,392 shares of Class A Common Stock issued or issuable under the Bandwidth.com, Inc. 2010 Equity Compensation Plan, (iii) 347,399 shares of Class A Common Stock issued or issuable under the Bandwidth.com, Inc. 2001 Stock Option Plan (the “2001 Plan”) and (iv) 347,399 shares of the Company’s Class B common stock, $0.001 par value per share, issued or issuable under the 2001 Plan, in each case as previously registered on the Company’s Registration Statement on Form S-8 filed with the SEC on December 19, 2017 (Commission File No. 333-222167). The Company’s Registration Statements on Form S-8 filed with the SEC on August 4, 2022 and December 19, 2017 are collectively referred to herein as the “Prior Registration Statements.”
This Registration Statement relates to securities of the same class as that to which the Prior Registration Statements relate and is submitted in accordance with General Instruction E to Form S-8 regarding Registration of Additional Securities. Pursuant to General Instruction E of Form S-8, the contents of the Prior Registration Statements are incorporated herein by reference and made part of this Registration Statement, except as amended hereby.
| Item 8. | Exhibits. | ||||
Exhibit Number | Description | |||||||
| * | Filed herewith. | ||||
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Raleigh, State of North Carolina, on this 3rd day of August, 2023.
| BANDWIDTH INC. | ||||||||
| By: | /s/ David A. Morken | |||||||
| David A. Morken | ||||||||
| Cofounder, Chief Executive Officer and Chairman | ||||||||
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the individuals whose signatures appear below constitute and appoint R. Brandon Asbill, his or her true and lawful attorney-in-fact and agent with full and several power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||||||||||||
| /s/ David A. Morken | Cofounder, Chief Executive Officer | August 3, 2023 | ||||||||||||
| David A. Morken | and Chairman (Principal Executive Officer) | |||||||||||||
| /s/ Daryl E. Raiford | Chief Financial Officer | August 3, 2023 | ||||||||||||
| Daryl E. Raiford | (Principal Financial Officer) | |||||||||||||
| /s/ Devin M. Krupka | Senior Vice President, Corporate Controller | August 3, 2023 | ||||||||||||
| Devin M. Krupka | (Principal Accounting Officer) | |||||||||||||
| /s/ Brian D. Bailey | Director | August 3, 2023 | ||||||||||||
| Brian D. Bailey | ||||||||||||||
| /s/ Rebecca G. Bottorff | Director | August 3, 2023 | ||||||||||||
| Rebecca Bottorff | ||||||||||||||
| /s/ John C. Murdock | Director | August 3, 2023 | ||||||||||||
| John C. Murdock | ||||||||||||||
| /s/ Lukas M. Roush | Director | August 3, 2023 | ||||||||||||
| Lukas M. Roush | ||||||||||||||
| /s/ Douglas A. Suriano | Director | August 3, 2023 | ||||||||||||
| Douglas A. Suriano | ||||||||||||||
Exhibit 107
CALCULATION OF FILING FEE TABLE
Form S-8
(Form Type)
Bandwidth Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rate | Amount Registered | Proposed Maximum Offering Price Per Share | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | ||||||||||||||||
| Equity | Class A common stock, $0.001 par value, reserved for issuance pursuant to the 2017 Plan (as defined below) | Other | 2,500,000 (1) | $14.29 (2) | $35,725,000 | $0.00011020 | $3,936.90 | ||||||||||||||||
| Total Offering Amounts | $35,725,000 | $3,936.90 | |||||||||||||||||||||
| Total Fee Offsets | — | ||||||||||||||||||||||
| Net Fee Due | $3,936.90 | ||||||||||||||||||||||
| (1) | Represents shares of Class A common stock, $0.001 par value (“Class A Common Stock”), issuable under the Bandwidth Inc. Second Amended and Restated 2017 Incentive Award Plan (as amended and/or restated from time to time, the “2017 Plan”) and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), includes any additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of the 2017 Plan. | ||||
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h)(1) of the Securities Act based on the average of the high and low prices of a share of the Registrant’s Class A Common Stock on the Nasdaq Global Select Market on July 28, 2023. | ||||
555 Eleventh Street, N.W., Suite 1000 | |||||||||||||||||
Washington, D.C. 20004-1304 | |||||||||||||||||
Tel: +1.202.637.2200 Fax: +1.202.637.2201 | |||||||||||||||||
www.lw.com | |||||||||||||||||
FIRM / AFFILIATE OFFICES | |||||||||||||||||
Austin | Milan | ||||||||||||||||
| Beijing | Munich | ||||||||||||||||
| Boston | New York | ||||||||||||||||
| Brussels | Orange County | ||||||||||||||||
| Century City | Paris | ||||||||||||||||
| Chicago | Riyadh | ||||||||||||||||
August 3, 2023 | Dubai | San Diego | |||||||||||||||
| Düsseldorf | San Francisco | ||||||||||||||||
| Frankfurt | Seoul | ||||||||||||||||
| Hamburg | Shanghai | ||||||||||||||||
| Hong Kong | Silicon Valley | ||||||||||||||||
| Houston | Singapore | ||||||||||||||||
| London | Tel Aviv | ||||||||||||||||
Bandwidth Inc. | Los Angeles | Tokyo | |||||||||||||||
2230 Bandmate Way | Madrid | Washington, D.C. | |||||||||||||||
Raleigh, North Carolina 27607 | |||||||||||||||||
| Re: | Registration Statement on Form S-8; 2,500,000 shares of Class A Common Stock of Bandwidth Inc., $0.001 par value per share | ||||||||||||||||
To the addressee set forth above:
We have acted as special counsel to Bandwidth Inc., a Delaware corporation (the “Company”), in connection with the registration by the Company of 2,500,000 shares of Class A common stock of the Company, $0.001 par value per share (the “Shares”), which may become issuable under the Bandwidth Inc. Second Amended & Restated 2017 Incentive Award Plan (as amended and/or restated from time to time, 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 U.S. Securities and Exchange Commission (the “Commission”) on the date hereof (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 prospectus, other than as expressly stated herein with respect to the issue 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 recipients thereof, and have been issued by the Company against payment therefor 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
August 3, 2023 Page 2 | ||
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.
Sincerely,
/s/ Latham & Watkins LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Second Amended and Restated 2017 Incentive Award Plan of Bandwidth Inc. of our reports dated February 23, 2023, with respect to the consolidated financial statements of Bandwidth Inc. and the effectiveness of internal control over financial reporting of Bandwidth Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, North Carolina
August 3, 2023