As filed with the U.S. Securities and Exchange Commission on February 22, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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| UNITY SOFTWARE INC. | |
| (Exact name of registrant as specified in its charter) |
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| Delaware | | 27-0334803 |
(State or other jurisdiction of
incorporation or organization) | | (I.R.S. Employer
Identification No.) |
| 30 3rd Street | |
| San Francisco, California 94103‑3104 | |
| (Address, including zip code, of principal executive offices) | |
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| Unity Software Inc. 2020 Equity Incentive Plan | |
| Unity Software Inc. 2020 Employee Stock Purchase Plan | |
| (Full titles of the plans) | |
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| John Riccitiello | |
| President and Chief Executive Officer | |
| Unity Software Inc. | |
| 30 3rd Street | |
| San Francisco, California 94103‑3104 | |
| (415) 539‑3162 | |
| (Name, address and telephone number, including area code, of agent for service) | |
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| Copies to: | |
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Rachel Proffitt Jon Avina Jonie Kondracki Julia R. Boesch Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, California 94111 (415) 693-2000 | |
Nora Go
Unity Software Inc.
30 3rd Street
San Francisco, CA, 94103
(415) 539-3162 |
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| 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. |
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| Large accelerated filer | ☒ | | Accelerated filer | ☐ |
Non‑accelerated filer | ☐ | | Smaller reporting company | ☐ |
| | | Emerging growth company | ☐ |
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| 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
2020 Equity Incentive Plan
The 2020 Equity Incentive Plan (the “2020 Plan”) of Unity Software Inc. (the “Registrant”) provides that the total number of shares reserved for issuance under the 2020 Plan will automatically increase on January 1st of each year for a period of ten years commencing on January 1, 2021 and ending on (and including) January 1, 2030, in an amount equal to 5% of the total number of shares of the Registrant’s Common Stock outstanding on December 31 of the preceding year, or a lesser number of shares determined by the Registrant’s Board of Directors. Accordingly, on January 1, 2022, the number of shares of Common Stock reserved under the 2020 Plan increased by an additional 14,629,617 shares (or 5% of the outstanding shares of Common Stock as of December 31, 2021).
2020 Employee Stock Purchase Plan
The Registrant’s 2020 Employee Stock Purchase Plan (the “2020 ESPP”) provides that the total number of shares reserved for issuance under the 2020 ESPP will automatically increase on January 1st of each year for a period of up to ten years, commencing on January 1, 2021 and ending on (and including) January 1, 2030, in an amount equal to the lesser of (i) one percent (1%) of the total number of shares of Common Stock outstanding on December 31 of the immediately preceding calendar year, and (ii) 10,576,183 shares of Common Stock; provided that prior to the date of any such increase, the Registrant’s Board of Directors may determine that such increase will be less than the amount set forth in clauses (i) and (ii). Accordingly, on January 1, 2022, the number of shares of Common Stock reserved under the 2020 ESPP increased by an additional 2,925,923 shares (or 1% of the outstanding shares of Common Stock as of December 31, 2021).
The Registrant previously registered shares of its Common Stock for issuance under the 2020 Plan and 2020 ESPP on a Registration Statement on Form S-8 (File No. 333-248882) filed with the Securities and Exchange Commission (the “SEC”) on September 18, 2020 and a subsequent Registration Statement on Form S-8 (File No. 333-253935) filed with the SEC on March 5, 2021 (together, the “Prior Forms S-8”). This Registration Statement relates to securities of the same class as that to which the Prior Forms S-8 relate and is submitted in accordance with General Instruction E to Form S-8. Pursuant to General Instruction E of Form S-8, the contents of the Prior Forms S-8, to the extent relating to the registration of Common Stock issuable under the 2020 Plan and 2020 ESPP, are incorporated herein by reference and made part of this Registration Statement. PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the SEC are incorporated by reference into this Registration Statement:
(a)The contents of the Prior Forms S-8 relating to the 2020 Plan and the 2020 ESPP, previously filed with the SEC on September 18, 2020 (File No. 333-248882) and March 5, 2021 (File No. 333-253935); (c)The description of the Registrant’s Common Stock which is contained in a registration statement on Form 8-A filed on September 9, 2020 under the Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description, including Exhibit [4.3] of the 2021 10-K.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date 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 de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents, except as to any portion of any future annual, quarterly or current report of the Registrant or document that is not deemed filed under such provisions. Unless expressly incorporated into this Registration Statement, a report (or portion thereof) “furnished” on Form 8-K shall not be incorporated by reference into this Registration Statement.
Any statement contained in a document 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 which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement..
Item 8. EXHIBIT INDEX
EXHIBIT INDEX | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Incorporated by Reference |
| Exhibit Number | | Description of Exhibit | | Form | File Number | | Exhibit | | Filing Date |
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| 4.1 | | | | 8-K | | 001-39497 | | 3.1 | | September 22, 2020 |
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| 4.2 | | | | S-1/A | | 333-248255 | | 3.4 | | September 9, 2020 |
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| 4.3 | | | | S-1/A | | 333-248255 | | 4.1 | | September 9, 2020 |
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| 5.1* | | | | | | | | | | |
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| 23.1* | | | | | | | | | | |
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| 23.2* | | | | | | | | | | |
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| 24.1* | | | | | | | | | | |
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| 99.1 | | | | 10-K | | 001-39497 | | 10.3 | | February 22, 2022 |
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| 99.2 | | | | S-8 | | 333-248882 | | 99.4 | | September 18, 2020 |
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| 107* | | | | | | | | | | |
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 Francisco, State of California, on this 22nd day of February, 2022.
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| | UNITY SOFTWARE INC. |
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| | By: | /s/ Luis Visoso |
| | | Luis Visoso |
| | | Senior Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John Riccitiello, Luis Visoso and Nora Go, each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in their name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (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, 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 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 his, her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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.
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| Signature | | Title | | Date |
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/s/ John Riccitiello | | President, Chief Executive Officer, and Executive Chairman of the Board of Directors | | February 22, 2022 |
| John Riccitiello | | (Principal Executive Officer) | |
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/s/ Luis Visoso | | Senior Vice President and Chief Financial Officer | | February 22, 2022 |
| Luis Visoso | | (Principal Financial and Accounting Officer) | |
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/s/ Roelof Botha | | Director | | February 22, 2022 |
| Roelof Botha | | | |
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/s/ Mary Schmidt Campbell | | Director | | February 22, 2022 |
| Mary Schmidt Campbell, Ph.D. | | | | |
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/s/ Egon Durban | | Director | | February 22, 2022 |
| Egon Durban | | | |
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/s/ David Helgason | | Director | | February 22, 2022 |
| David Helgason | | | |
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/s/ Alyssa Henry | | Director | | February 22, 2022 |
| Alyssa Henry | | | |
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/s/ Keisha Smith-Jeremie | | Director | | February 22, 2022 |
| Keisha Smith-Jeremie | | | | |
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/s/ Barry Schuler | | Director | | February 22, 2022 |
| Barry Schuler | | | | |
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/s/ Robynne Sisco | | Director | | February 22, 2022 |
| Robynne Sisco | | | | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
Unity Software Inc.
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| Table 1 – Newly Registered Securities |
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Equity | Common Stock | Other(2) | 14,629,617(3) | $105.80(2) | $1,547,813,478.60 | 0.0000927 | $143,482.31 |
| Equity | Common Stock | Other(4) | 2,925,923(5) | $89.93(4) | $263,128,255.39 | 0.0000927 | $24,391.99 |
| Total Offering Amounts | – | $1,810,941,733.99 | – | $167,874.30 |
| Total Fees Previously Paid | – | – | – | – |
| Total Fee Offsets | – | – | – | – |
| Net Fee Due | – | – | – | $167,874.30 |
(1) Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock of Unity Software Inc. (the “Registrant”) that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization, or other similar transaction effected that results in an increase to the number of outstanding shares of the Registrant’s common stock, as applicable.
(2) Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of $105.80, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 17, 2022.
(3) Represents 14,629,617 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2022 under the Registrant’s 2020 Equity Incentive Plan.
(4) Estimated in accordance with Rules 457(c) and 457(h) solely for purposes of calculating the registration fee on the basis of 85% of $105.80, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 17, 2022. Pursuant to the Registrant’s 2020 Employee Stock Purchase Plan (the “2020 ESPP”), the purchase price of the shares of common stock will be 85% of the lower of the fair market value of the common stock on the first trading day of the offering period or on the last day of the offering period.
(5) Represents 2,925,923 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2022 under the 2020 ESPP.
Exhibit 5.1
Rachel B. Proffitt
+1 415 693 2031
rproffitt@cooley.com
February 22, 2022
Unity Software Inc.
30 3rd Street
San Francisco, California 94103
Ladies and Gentlemen:
We have represented Unity Software Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 17,555,540 shares (the “Shares”) of the Company’s Common Stock, par value $0.000005 per share (the “Common Stock”), consisting of (a) 14,629,617 shares of Common Stock issuable pursuant to the Company’s 2020 Equity Incentive Plan (the “2020 Plan”) and (b) 2,925,923 shares of Common Stock issuable pursuant to the Company’s 2020 Employee Stock Purchase Plan (together with the 2020 Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, (c) the Plans, and (d) originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111-4004
Phone: (415) 693-2000 Fax: (415) 693-2222 cooley.com
Unity Software Inc.
February 22, 2022
Page Two
Sincerely,
Cooley LLP
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| By: | /s/ Rachel B. Proffitt | | |
| Rachel B. Proffitt | | |
Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111-4004
Phone: (415) 693-2000 Fax: (415) 693-2222 cooley.com
