Document

As filed with the Securities and Exchange Commission on March 2, 2018
Registration No. 333-
 
 
 
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
———————————————
FORM S‑8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
———————————————
FORESCOUT TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
———————————————
Delaware
(State or other jurisdiction of
incorporation or organization)
 
51-0406800
(I.R.S. Employer
Identification Number)
190 West Tasman Drive
San Jose, California 95134
(Address of principal executive offices, including zip code)
———————————————
2017 Equity Incentive Plan
2017 Employee Stock Purchase Plan
(Full title of the plan)
———————————————
Michael DeCesare
Chief Executive Officer and President
190 West Tasman Drive
San Jose, California 95134
(408) 213-3191
(Name, address, including zip code, and telephone number, including area code, of agent for service)
———————————————
Copies to:
Steven E. Bochner
Lisa L. Stimmell
Melissa S. Rick
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
 
Darren J. Milliken
Senior Vice President, General Counsel,
Corporate Secretary, and
Corporate Compliance Officer
190 West Tasman Drive
San Jose, California 95134
(408) 213-3191
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
ý
(Do not check if a smaller reporting company)
Smaller reporting company
¨
 
 
 
Emerging growth company
ý

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.    ý
———————————————
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, $0.001 par value per share reserved for issuance pursuant to the 2017 Equity Incentive Plan
1,906,097(2)
$29.62(4)
56,458,593.14
7,029.10
Common Stock, $0.001 par value per share, reserved for issuance pursuant to the 2017 Employee Stock Purchase Plan
381,219(3)
$25.18(5)
9,599,094.42
1,195.09
TOTAL:
2,287,316
 
66,057,687.56
8,224.19



 
 
 
 
 

(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 Registrant’s 2017 Equity Incentive Plan (“2017 Plan”) and the Registrant’s 2017 Employee Stock Purchase Plan (“2017 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s outstanding shares of common stock.
(2)
Reflects an automatic increase to the number of shares of common stock reserved for issuance pursuant to future awards under the 2017 Plan, which annual increase is provided for in the 2017 Plan.
(3)
Reflects an automatic increase to the number of shares of common stock reserved for issuance under the 2017 ESPP, which annual increase is provided for in the 2017 ESPP.
(4)
Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $29.62 per share, which is the average of the high and low prices of common stock, as reported on The NASDAQ Global Market, on February 23, 2018.
(5)
Estimated in accordance with Rule 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of $29.62 per share, which is the average of the high and low prices of common stock, as reported on The NASDAQ Global Market, on February 23, 2018. Pursuant to the 2017 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value of a share of common stock on the first trading day of the offering period or on the exercise date.



PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. 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 as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.  Incorporation of Documents by Reference.

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
(1) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February 22, 2018;
(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 (other than the portions of these documents not deemed to be filed); and
(3) The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-38253) filed with the Commission on October 23, 2017, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report 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.
Not applicable.
Item 6.  Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors, and other corporate agents.



As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation includes provisions that may eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the amended and restated certificate of incorporation and amended and restated bylaws of the Registrant provide that:
The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
The Registrant will not be obligated pursuant to the amended and restated bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification.
The rights conferred in the amended and restated certificate of incorporation and amended and restated bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.
The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents.
The Registrant’s policy is to enter into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification agreements entered into between the Registrant and its directors and officers may be sufficiently broad to permit indemnification of the Registrant’s directors and officers for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7.  Exemption from Registration Claimed.
Not applicable.



Item 8.  Exhibits.
Exhibit
Number
 
Exhibit Description
 
Incorporated by Reference
 
Form 
 
File No. 
 
Exhibit 
 
Filing Date 
 
 
S-1/A
 
333- 220767
 
  4.1
 
October 16, 2017
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
S-1/A
 
333- 220767
 
10.3
 
October 16, 2017
 
 
 
 
 
 
 
 
 
 
 
 
 
S-1/A
 
333- 220767
 
10.4
 
October 16, 2017
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 of 1933;
(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; and
(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 reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the



Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 of 1933 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 of 1933 and will be governed by the final adjudication of such issue.




SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Jose, State of California, on the 2nd day of March 2018.
FORESCOUT TECHNOLOGIES, INC.
 
 
By:
/s/ Michael DeCesare
 
Michael DeCesare
 
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael DeCesare, Christopher Harms, and Darren J. Milliken, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this registration statement and any or all amendments thereto (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 attorneys-in-fact and agents 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 hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their 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 dates indicated.
Signature
 
Title
 
Date
/s/ Michael DeCesare
 
Chief Executive Officer, President & Director
(Principal Executive Officer)
 
March 2, 2018
Michael DeCesare
 
 
 
 
 
 
 
/s/ Christopher Harms
 
Chief Financial Officer
(Principal Financial Officer & Principal Accounting Officer)
 
March 2, 2018
Christopher Harms
 
 
 
 
 
 
 
/s/ Yehezkel Yeshurun
 
Co-Founder and Chairman of the Board of Directors
 
March 2, 2018
Yehezkel Yeshurun
 
 
 
 
 
 
 
/s/ David G. DeWalt
 
Vice Chairman of the Board of Directors
 
March 2, 2018
David G. DeWalt
 
 
 
 
 
 
 
/s/ James Beer
 
Director
 
March 2, 2018
James Beer
 
 
 
 
 
 
 
/s/ T. Kent Elliott
 
Director
 
March 2, 2018
T. Kent Elliott
 
 
 
 
 
 
 
/s/ Theresia Gouw
 
Director
 
March 2, 2018
Theresia Gouw
 
 
 
 
 
 
 
/s/ Mark Jensen
 
Director
 
March 2, 2018
Mark Jensen
 
 
 
 
 
 
 
/s/ Rami Kalish
 
Director
 
March 2, 2018
Rami Kalish
 
 
 
 
 
 
 
/s/ Enrique Salem
 
Director
 
March 2, 2018
Enrique Salem
 
 


Exhibit
Exhibit 5.1

March 2, 2018
ForeScout Technologies, Inc.
190 West Tasman Drive
San Jose, California 95134
Re:    Registration Statement on Form S‑8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by ForeScout Technologies, Inc., a Delaware corporation, with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 2,287,316 shares of common stock, par value $0.001 per share, consisting of: (i) 1,906,097 shares of common stock reserved for issuance under the 2017 Equity Incentive Plan and (ii) 381,219 shares of common stock reserved for issuance under the 2017 Employee Stock Purchase Plan (which plans are referred to herein as the “Plans” and which shares of common stock are collectively referred to herein as the “Shares”).
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plans and pursuant to the agreements that accompany the Plans, will be legally and validly issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
Very truly yours,
 
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
 
/s/ Wilson Sonsini Goodrich & Rosati, P.C.

Exhibit
Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2017 Equity Incentive Plan, and the 2017 Employee Stock Purchase Plan of ForeScout Technologies, Inc., of our report dated February 21, 2018, with respect to the consolidated financial statements of ForeScout Technologies, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Francisco, California
March 2, 2018