As filed with the U.S. Securities and Exchange Commission on February 14, 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

Zendesk, Inc.
(Exact Name of Registrant as Specified in Its Charter)

 
			
Delaware	 	26-4411091	
(State or Other Jurisdiction of
Incorporation or Organization)	 	(I.R.S. Employer
Identification Number)	
1019 Market Street
San Francisco, California 94103
(Address of Registrant’s Principal Executive Offices, Including Zip Code)
ZENDESK, INC. 2014 STOCK OPTION AND INCENTIVE PLAN
ZENDESK, INC. 2014 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
Mikkel Svane
Chief Executive Officer
Zendesk, Inc.
1019 Market Street
San Francisco, California 94103
(415) 418-7506
(Name, address and telephone number, including area code, of agent for service)

Copies to:

Bradley C. Weber, Esq.
An-Yen E. Hu, Esq.
Goodwin Procter LLP
601 Marshall Street
Redwood City, California 94063
(650) 752-3100	 	John M. Geschke, Esq.
Hasani Caraway, Esq.
Zendesk, Inc.
1019 Market Street
San Francisco, California 94103
(415) 418-7506	

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. (Check one):

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, $0.01 par value per share, reserved for issuance pursuant to the Zendesk, Inc. 2014 Stock Option and Incentive Plan	 	5,401,821(2)	 	$77.13(4)	 	$416,642,453.73	 	$50,497.07	
Common stock, $0.01 par value per share, reserved for issuance pursuant to the Zendesk, Inc. 2014 Employee Stock Purchase Plan	 	1,080,364(3)	 	$65.56(5)	 	$70,828,663.84	 	$8,584.43	
Total	 	6,482,185	 	 	 	$487,471,117.57	 	$59,081.50	

 
(1)	Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable under the above-named plans 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)	The Zendesk, Inc. 2014 Stock Option and Incentive Plan (the “2014 Plan”) provides for an annual increase in the number of shares reserved and available for issuance under the 2014 Plan as follows: The number of shares available for issuance under the 2014 Plan will be increased on January 1, 2015 and each January 1 thereafter, in an amount equal to five percent (5%) of the number of issued and outstanding shares on the immediately preceding December 31. The 5,401,821 shares of common stock registered hereunder were authorized as of January 1, 2019 pursuant to the annual increase provisions described above.	
(3)	The Zendesk, Inc. 2014 Employee Stock Purchase Plan (the “2014 ESPP”) provides for an annual increase in the number of shares reserved and available for issuance under the 2014 ESPP as follows: The number of shares available for issuance under the 2014 ESPP shall be subject to an annual increase to be added on January 1, 2015 and each January 1 thereafter equal to the lesser of 1,500,000 shares, one percent (1%) of the number of shares of common stock issued and outstanding on the immediately preceding December 31, and such lesser number of shares of common stock determined by the Administrator (as defined in the 2014 ESPP). The 1,080,364 shares of common stock registered hereunder were authorized as of January 1, 2019 pursuant to the annual increase provisions described above.	
(4)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act on the basis of $77.13 per share, which represents the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 11, 2019.	
(5)	Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, and based on 85% of $77.13 per share, which represents the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 11, 2019. Pursuant to the 2014 ESPP, the purchase price of the shares of the Registrant’s common stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of the Registrant’s common stock on the first trading day of the offering period or on the exercise date.	

 

REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement on Form S-8 is being filed by Zendesk, Inc. (the “Registrant”) to register (i) 5,401,821 additional shares of common stock of the Registrant, $0.01 par value per share (the “Common Stock”), reserved for issuance under the Zendesk, Inc. 2014 Stock Option and Incentive Plan, as amended from time to time (the “2014 Plan”) and (ii) 1,080,364 additional shares of Common Stock reserved for issuance under the Zendesk, Inc. 2014 Employee Stock Purchase Plan, as amended from time to time (the “2014 ESPP”).
Pursuant to General Instruction E of Form S-8, and only with respect to the shares of Common Stock issuable under the 2014 Plan and the 2014 ESPP, the contents of the Registration Statement on Form S-8 of the Registrant filed with the Securities and Exchange Commission (the “Commission”) on May 14, 2014 (File No. 333-195958) are hereby incorporated in this Registration Statement on Form S-8 by reference to the extent not replaced hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 to be contained in the Section 10(a) prospectus is not being filed with or included in this Registration Statement (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement.
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 incorporated by reference into this Registration Statement on Form S-8:
 
 	(a)	The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the Commission on February 14, 2019;	
 
 	(b)	All other reports filed 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 on Form 10-K 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. 001-36456) filed with the Commission on May 13, 2014 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 Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. 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 subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such 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.
Item 4. Description of Securities .
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.

Item 6. Indemnification of Directors and Officers .
Section 145 of the General Corporation Law of the State of Delaware (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 and intends to continue to enter into indemnification agreements with each of its directors, executive officers, and certain other officers. These agreements provide that the Registrant will indemnify each of its directors, executive officers, certain other 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 .
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement on Form S-8, which Exhibit Index is incorporated herein by reference.

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 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.
(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 Securities and Exchange 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.

EXHIBIT INDEX

Exhibit No.	 	Description	
		
4.1(1)	 	Form of Common Stock Certificate of the Registrant.	
		
4.2(2)	 	2014 Stock Option and Incentive Plan, and related form agreements.	
		
4.3(3)	 	2014 Employee Stock Purchase Plan.	
		
5.1	 	Opinion of Goodwin Procter LLP.	
		
23.1	 	Consent of Ernst & Young LLP, independent registered public accounting firm.	
		
23.2	 	Consent of Goodwin Procter LLP (included in Exhibit 5.1).	
		
24.1	 	Power of Attorney (see signature page of this Registration Statement on Form S-8).	

(1)	Incorporated by reference to Exhibit 4.1 filed with Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-195176), filed with the Commission on May 5, 2014.	
(2)	Incorporated by reference to Exhibit 10.2 filed with the Registrant’s Annual Report on Form 10-K (File No. 001-36456), filed with the Commission on February 14, 2019.	
(3)	Incorporated by reference to Exhibit 10.2 filed with the Registrant’s Quarterly Report on Form 10-Q (File No. 001-36456), filed with the Commission on November 6, 2014.	

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 February 14, 2019.

ZENDESK, INC.	
		
By:	 	/s/ Mikkel Svane	
	 	Mikkel Svane	
	 	Chief Executive Officer and Chair of the Board of Directors	
 POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below hereby severally constitutes and appoints Mikkel Svane and Elena Gomez, and each of them singly, as each such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign the Registration Statement on Form S-8 of Zendesk, Inc., and any or all amendments (including, without limitation, post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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 dates indicated.

Signature	  	Title	  	Date	
			
/s/ Mikkel Svane
Mikkel Svane	  	Chief Executive Officer and Chair of the Board of Directors
(Principal Executive Officer)	  	February 14, 2019	
			
/s/ Elena Gomez
Elena Gomez	  	Chief Financial Officer
(Principal Financial and Accounting Officer)	  	February 14, 2019	
			
/s/ Carl Bass
Carl Bass	  	Director	  	February 14, 2019	
			
/s/ Hilarie Koplow-McAdams
Hilarie Koplow-McAdams	  	Director	  	February 14, 2019	
			
/s/ Michael Frandsen
Michael Frandsen	  	Director	  	February 14, 2019	
			
/s/ Caryn Marooney
Caryn Marooney	  	Director	  	February 14, 2019	
/s/ Elizabeth Nelson
Elizabeth Nelson	  	Director	  	February 14, 2019	
			
/s/ Dana Stalder
Dana Stalder	  	Director	  	February 14, 2019	
			
/s/ Michelle Wilson
Michelle Wilson	  	Director	  	February 14, 2019	
			
/s/ Thomas Szkutak
Thomas Szkutak	  	Director	  	February 14, 2019	

Exhibit 5.1
February 14, 2019
Zendesk, Inc.
1019 Market Street
San Francisco, California 94103
Re:     Securities Being Registered under Registration Statement on Form  S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “ Registration Statement ”) pursuant to the Securities Act of 1933, as amended (the “ Securities Act ”), on or about the date hereof relating to an aggregate of 6,482,185 shares (the “ Shares ”) of Common Stock, $0.01 par value per share, of Zendesk, Inc., a Delaware corporation (the “ Company ”), that may be issued pursuant to the Company’s 2014 Stock Option and Incentive Plan (the “ Stock Plan ”) and the Company’s 2014 Employee Stock Purchase Plan (the “ ESPP ” and together with the Stock Plan, the “ Plans ”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Goodwin Procter LLP
GOODWIN PROCTER LLP

Exhibit 23.1
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Zendesk, Inc. 2014 Stock Option and Incentive Plan, and the Zendesk, Inc. 2014 Employee Stock Purchase Plan, of our reports dated February 14, 2019, with respect to the consolidated financial statements of Zendesk, Inc. and the effectiveness of internal control over financial reporting of Zendesk, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2018, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, CA
February 14, 2019