As filed with the U.S. Securities and Exchange Commission on February 29, 2024
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) | |
| | | | | | | | |
| James Whitehurst | |
| Interim 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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Rachael Proffitt Julia Boesch Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, California 94111 (415) 693-2000 | | Anirma Gupta 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 of the Registrant’s Common Stock (the “Common Stock”) reserved for issuance under the 2020 Plan (the “Reserve”) 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 Common Stock outstanding on December 31 of the preceding year (the “Automatic Increase”); provided, however, that the Registrant’s Board of Directors the “Board”) may act prior to January 1st of a given year to provide that the increase for such year will be a lesser number of shares of Common Stock. The Board previously delegated authority to administer the 2020 Plan to the Human Capital and Compensation Committee of the Board (the “Committee”) and prior to January 1, 2024, the Committee approved an increase of 11,000,000 shares of Common Stock, which is less than would have been added to the Reserve pursuant to the Automatic Increase. Accordingly, on January 1, 2024, the number of shares of Common Stock reserved under the 2020 Plan increased by an additional 11,000,000 shares (or approximately 3% of the outstanding shares of Common Stock as of December 31, 2023).
2020 Employee Stock Purchase Plan
The Registrant’s 2020 Employee Stock Purchase Plan (the “2020 ESPP”) provides that the total number of shares of Common Stock 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 Board may determine that such increase will be less than the amount set forth in clauses (i) and (ii). Accordingly, on January 1, 2024, the number of shares of Common Stock reserved under the 2020 ESPP increased by an additional 3,849,055 shares (or 1% of the outstanding shares of Common Stock as of December 31, 2023).
The Registrant previously registered shares of its Common Stock for issuance under the 2020 Plan and the 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 subsequent Registration Statements on Form S-8 (File Nos. 333-253935, 333-262905 and 333-270057) filed with the SEC on March 5, 2021. February 22, 2022 and February 27, 2023, respectively (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.
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:
(d)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 Registrant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 5, 2021 (File No. 001-39497). 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 | | | | 8-K | | 001-39497 | | 3.2 | | September 8, 2023 |
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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-Q | | 001-39497 | | 10.1 | | November 9, 2023 |
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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 29th day of February, 2024.
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| | UNITY SOFTWARE INC. |
| | |
| | By: | /s/ Luis Visoso |
| | | Luis Visoso |
| | | Executive 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 Luis Visoso, Anirma Gupta 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, as amended, 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/ James Whitehurst | | Interim President and Chief Executive Officer | | February 29, 2024 |
| James Whitehurst | | (Principal Executive Officer) | |
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| /s/ Luis Visoso | | Executive Vice President and Chief Financial Officer | | February 29, 2024 |
| Luis Visoso | | (Principal Financial Officer) | |
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| /s/ Mark Barrysmith | | Chief Accounting Officer | | February 29, 2024 |
| Mark Barrysmith | | (Principal Accounting Officer) | | |
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| /s/ Tomer Bar-Zeev | | Director | | February 29, 2024 |
| Tomer Bar-Zeev | | | |
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| /s/ Roelof Botha | | Director | | February 29, 2024 |
| Roelof Botha | | | |
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| /s/ Mary Schmidt Campbell | | Director | | February 29, 2024 |
| Mary Schmidt Campbell, Ph.D. | | | | |
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| /s/ Shlomo Dovrat | | Director | | February 29, 2024 |
| Shlomo Dovrat | | | |
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| /s/ Egon Durban | | Director | | February 29, 2024 |
| Egon Durban | | | |
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| /s/ David Helgason | | Director | | February 29, 2024 |
| David Helgason | | | |
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| /s/ Keisha Smith | | Director | | February 29, 2024 |
| Keisha Smith | | | |
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| /s/ David Kostman | | Director | | February 29, 2024 |
| David Kostman | | | | |
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| /s/ Michelle Lee | | Director | | February 29, 2024 |
| Michelle Lee | | | | |
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| /s/ Barry Schuler | | Director | | February 29, 2024 |
| Barry Schuler | | | | |
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| /s/ Robynne Sisco | | Director | | February 29, 2024 |
| Robynne Sisco | | | | |
Exhibit 107
Calculation of Filing Fee Table
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) | 11,000,000(3) | $29.70(2) | $326,754,445 | 0.0001476 | $48,229 |
| Equity | Common Stock | Other(4) | 3,849,055(5) | $25.25(4) | $97,185,587 | 0.0001476 | $14,345 |
| Total Offering Amounts | – | $423,940,032 | – | $62,574 |
| Total Fees Previously Paid | – | – | – | – |
| Total Fee Offsets | – | – | – | – |
| Net Fee Due | – | – | – | $62,574 |
(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 $29.70, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 27, 2024.
(3) Represents additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2024 under the Registrant’s 2020 Equity Incentive Plan (the “2020 Plan”). Pursuant to such provision, the 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 (the “Automatic Increase”); provided, however, that the Registrant’s Board of Directors (the “Board”) may act prior to January 1st of a given year to provide that the increase for such year will be a lesser number of shares. The Board delegated authority to administer the 2020 Plan to the Human Capital and Compensation Committee of the Board (the “Committee”) and prior to January 1, 2024, the Committee approved an increase of 11,000,000 shares of common stock, which is less than would have been added to the Reserve pursuant to the Automatic Increase.
(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 $29.70, the average of the high and low prices of the Registrant’s common stock as reported on the New York Stock Exchange on February 27, 2024. 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 additional shares of common stock available for issuance as a result of the annual evergreen increase on January 1, 2024 under the 2020 ESPP.
Exhibit 5.1
Rachel B. Proffitt
+1 415 693 2031
rproffitt@cooley.com
February 29, 2024
Unity Software Inc.
30 3rd Street
San Francisco, California 94103
Ladies and Gentlemen:
We have acted as counsel to 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 (the “Commission”) covering the offering of up to 14,849,055 shares (the “Shares”) of the Company’s Common Stock, par value $0.000005 per share (the “Common Stock”), consisting of (a) 11,000,000 shares of Common Stock issuable pursuant to the Company’s 2020 Equity Incentive Plan (the “2020 Plan”), and (b) 3,849,055 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 certificate of incorporation and bylaws, each as currently in effect, (c) the Plans, and (d) such other records, documents, opinions, certificates, memoranda and 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).
This opinion is limited to the matters expressly set forth in this letter, and no opinion should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We consent to the filing of 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 Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
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 29, 2024
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
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 2020 Equity Incentive Plan and 2020 Employee Stock Purchase Plan of Unity Software Inc. of our reports dated February 29, 2024, with respect to the consolidated financial statements of Unity Software Inc. and the effectiveness of internal control over financial reporting of Unity Software Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
February 29, 2024
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