Form S-8 ZYNGA INC

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May 6, 2016 5:04 PM EDT

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As filed with the Securities and Exchange Commission on May 6, 2016

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

ZYNGA INC.

(Exact name of registrant as specified in its charter)

Delaware

42-1733483

(State or other jurisdiction of

Incorporation or organization)

(I.R.S. Employer

Identification No.)

699 Eighth Street

San Francisco, CA 94103

(855) 449-9642

(Address of principal executive offices) (Zip code)

2011 Equity Incentive Plan

2011 Employee Stock Purchase Plan

(Full title of the plan)

Michelle Quejado

Zynga Inc.

699 Eighth Street

San Francisco, CA 94103

(855) 449-9642

(Name and address of agent for service) (Telephone number, including area code, of agent for service)

Copies to:


Thomas Ivey, Esq.		Devang S. Shah
Skadden, Arps, Slate, Meagher & Flom LLP		Zynga Inc.
525 University Ave., #1400		699 Eighth Street
Palo Alto, California 94301		San Francisco, CA 94103
(650) 470-4500		(855) 449-9642

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.


Large accelerated filer	x	Accelerated filer	¨

Non-accelerated filer	¨ (Do not check if a smaller reporting company)	Smaller reporting company	¨

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
Class A common stock, $0.00000625 par value per share
2011 Equity Incentive Plan	36,144,674⁽²⁾	$2.39⁽³⁾	$86,385,770.86⁽³⁾	$8,699.05
2011 Employee Stock Purchase Plan	18,072,337⁽⁴⁾	$2.0315⁽⁵⁾	$36,713,952.62⁽⁵⁾	$3,697.10
TOTAL:	54,217,011⁽⁴⁾	N/A⁽⁵⁾	$123,099,723.48⁽⁴⁾	$12,396.15

(1)	Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement on Form S-8 (this “Registration Statement”) shall also cover any additional shares of the Class A common stock, $0.00000625 par value per share (the “Class A Common Stock”), of Zynga Inc. (the “Registrant”) that become issuable under the 2011 Equity Incentive Plan, as amended on June 11, 2015 (the “2011 Plan”) and/or 2011 Employee Stock Purchase Plan, as amended on August 15, 2012 (the “2011 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 Class A Common Stock.
(2)	Represents shares of Class A Common Stock that were automatically added to the shares authorized for issuance under the 2011 Plan on January 1, 2016 pursuant to an “evergreen” provision contained in the 2011 Plan. Pursuant to such provision, on January 1st of each year commencing in 2012 and continuing through and including January 1, 2021, the number of shares authorized for issuance under the 2011 Plan is automatically increased by four percent (4%) of the aggregate number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, or such lesser number of shares that may be determined by the Registrant’s Board of Directors.
(3)	Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee based on a per share price of $2.39, the average of the high and low prices of the Class A Common Stock on April 29, 2016, as reported on the NASDAQ Global Select Market.
(4)	Represents shares of Class A Common Stock that were automatically added to the shares authorized for issuance under the 2011 ESPP on January 1, 2016 pursuant to an “evergreen” provision contained in the 2011 ESPP. Pursuant to such provision, on January 1st of each year commencing in 2012 and continuing through and including January 1, 2021, the number of shares authorized for issuance under the 2011 ESPP is automatically increased by the lesser of (i) two percent (2%) of the aggregate number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar year, (ii) 25,000,000 shares of Class A Common Stock, or (iii) such lesser number of shares that may be determined by the Registrant’s Board of Directors.
(5)	Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee based on 85% of a per share price of $2.39, the average of the high and low prices of the Class A Common Stock on April 29, 2016, as reported on the NASDAQ Global Select Market. Pursuant to the 2011 ESPP, which plan is incorporated by reference herein, the purchase price of the shares of Class A Common Stock to be issued thereunder will be 85% of the lower of the fair market value of the Class A Common Stock on the first trading day of the offering period or on the applicable purchase date.

EXPLANATORY NOTE

The Registrant is filing this Registration Statement for the purpose of registering (i) an additional 36,144,674 shares of Class A Common Stock to be issued pursuant to the 2011 Plan and (ii) an additional 18,072,337 shares of Class A Common Stock to be issued pursuant to the 2011 ESPP.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT


ITEM 3.	INCORPORATION OF DOCUMENTS BY REFERENCE

The following documents filed by the Registrant with the Securities and Exchange Commission (the “SEC”) are incorporated by reference into this Registration Statement:

The contents of the earlier registration statement relating to the 2011 Plan and the 2011 ESPP, previously filed with the SEC on December 15, 2011 (File No. 333-175298) are incorporated herein by reference and made a part of this Registration Statement;

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on February 19, 2016;

The Registrant’s Definitive Proxy Statement on Schedule 14A filed with the SEC on April 28, 2016;

The Registrant’s Quarterly Report on Form 10-Q filed with the SEC on May 6, 2016; and

The Registrant’s Current Report on Form 8-K filed with the SEC on March 1, 2016.

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” but not filed 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.	EXHIBITS

		Incorporated by Reference
Exhibit No.	Description of Exhibit	Form	File No.	Exhibit	Filing Date	Filed Herewith

3.1	Seventeenth Amended and Restated Certificate of Incorporation of Zynga Inc.	8-K	001-35375	3.1	6/13/2014

3.2	Second Amended and Restated Bylaws of Zynga Inc.	8-K	001-35375	3.1	3/1/2016

4.1	Form of Zynga Inc. Class A Common Stock Certificate.	S-1/A	333-175298	4.1	11/4/2011

4.2	Zynga Inc. 2011 Equity Incentive Plan, as amended on June 11, 2015 (included as Appendix A to Schedule 14A).	DEF 14A	001-35375		4/28/2015

4.3	Forms of Stock Option Grant Notice and Stock Option Agreement under Zynga Inc. 2011 Equity Incentive Plan.	S-1/A	333-175298	10.5	11/17/2011

4.4	Forms of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement under Zynga Inc. 2011 Equity Incentive Plan.	10-Q	333-35375	10.3	05/08/2012

4.5	Form of Performance Award Agreement under Zynga Inc. 2011 Equity Incentive Plan	8-K	001-35375	10.1	03/14/2014

4.6	Zynga Inc. 2011 Employee Stock Purchase Plan, as amended on August 15, 2012.	S-8	333-206185	4.6	08/06/2015

5.1	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.					X

23.1	Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).					X

23.2	Consent of Independent Registered Public Accounting Firm.					X

24.1	Power of Attorney (included on the signature page of this Form S-8).					X

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 5th day of May, 2016.



ZYNGA INC.

By:		/s/ Frank Gibeau
		Frank Gibeau
		Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Frank Gibeau and Devang S. Shah, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his 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 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.


Signature	Title	Date


/s/ Frank Gibeau Frank Gibeau	Director and Chief Executive Officer (Principal Executive Officer)	May 3, 2016

/s/ Michelle Quejado Michelle Quejado	Interim Chief Financial Officer and Chief Accounting Officer (Principal Financial Officer and Principal Accounting Officer)	May 2, 2016

/s/ Mark Pincus Mark Pincus	Director and Executive Chairman of the Board of Directors	May 3, 2016

/s/ L. John Doerr L. John Doerr	Director	May 3, 2016

/s/ Regina E. Dugan Regina E. Dugan	Director	May 3, 2016

/s/ William “Bing” Gordon William “Bing” Gordon	Director	May 3, 2016

/s/ Louis J. Lavigne, Jr. Louis J. Lavigne, Jr.	Director	May 3, 2016

/s/ Sunil Paul Sunil Paul	Director	May 3, 2016

/s/ Ellen F. Siminoff Ellen F. Siminoff	Director	May 2, 2016

EXHIBIT INDEX

		Incorporated by Reference
Exhibit No.	Description of Exhibit	Form	File No.	Exhibit	Filing Date	Filed Herewith

3.1	Seventeenth Amended and Restated Certificate of Incorporation of Zynga Inc.	8-K	001-35375	3.1	6/13/2014

3.2	Second Amended and Restated Bylaws of Zynga Inc.	8-K	001-35375	3.1	3/1/2016

4.1	Form of Zynga Inc. Class A Common Stock Certificate.	S-1/A	333-175298	4.1	11/4/2011

4.2	Zynga Inc. 2011 Equity Incentive Plan, as amended on June 11, 2015 (included as Appendix A to Schedule 14A).	DEF 14A	001-35375		4/28/2015

4.3	Forms of Stock Option Grant Notice and Stock Option Agreement under Zynga Inc. 2011 Equity Incentive Plan.	S-1/A	333-175298	10.5	11/17/2011

4.4	Forms of Restricted Stock Unit Grant Notice and Restricted Stock Unit Agreement under Zynga Inc. 2011 Equity Incentive Plan.	10-Q	333-35375	10.3	05/08/2012

4.5	Form of Performance Award Agreement under Zynga Inc. 2011 Equity Incentive Plan	8-K	001-35375	10.1	03/14/2014

4.6	Zynga Inc. 2011 Employee Stock Purchase Plan, as amended on August 15, 2012.	S-8	333-206185	4.6	08/06/2015

5.1	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.					X

23.1	Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1).					X

23.2	Consent of Independent Registered Public Accounting Firm.					X

24.1	Power of Attorney (included on the signature page of this Form S-8).					X

Exhibit 5.1

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

525 UNIVERSITY AVENUE

PALO ALTO, CALIFORNIA 94301

May 6, 2016

Zynga Inc.

699 Eighth Street

San Francisco, California 94103

Re: Zynga Inc. Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as special counsel to Zynga Inc., a Delaware corporation (the “Company”), and are delivering this opinion in connection with the Registration Statement on Form S-8 of the Company (together with all exhibits thereto, the “Registration Statement”) being filed with the Securities and Exchange Commission (the “Commission”) on the date hereof, relating to the registration by the Company of an aggregate of 54,217,011 shares (the “Plan Shares”) of the Company’s Class A common stock, par value $0.00000625 (the “Common Stock”) authorized for issuance, consisting of (i) 36,144,674 shares of Common Stock authorized for issuance pursuant to the Company’s 2011 Equity Incentive Plan, as amended on June 11, 2015 (the “2011 EIP”), and (ii) 18,072,337 shares of Common Stock authorized for issuance pursuant to the Company’s 2011 Employee Stock Purchase Plan, as amended on August 15, 2012 (together with the 2011 EIP, the “Plans”).

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K of the General Rules and Regulations under the Securities Act of 1933, as amended (the “Act”).

In rendering the opinion stated herein, we have examined and relied upon the following: (a) the Registration Statement in the form to be filed with the Commission on the date hereof; (b) the Amended and Restated Articles of Incorporation of the Company; (c) the Amended and Restated Bylaws of the Company, as certified by Devang S. Shah, Secretary of the Company; (d) the Plans; and (e) certain resolutions of the Board of Directors of the Company and Stockholders of the Company relating to the approval of the Plans, the filing of the Registration Statement and certain related matters.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below.

In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that (i) the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder, (ii) the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties and (iii) that the consideration recited in the resolutions of the Board of Directors of the Company approving the issuance of the Plan Shares will be received in full by the Company. As to any facts material to the opinion expressed herein that we did not independently

establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.

In rendering the opinion stated herein, we have also assumed that: (i) an appropriate account statement evidencing the Plan Shares credited to the recipient’s account maintained with the Company’s transfer agent has been issued by the Company’s transfer agent; (ii) the issuance of the Plan Shares will be properly recorded in the books and records of the Company; (iii) each award agreement under which options, restricted stock, restricted stock units or other awards are granted pursuant to the applicable Plan will be consistent with the applicable Plan and will be duly authorized, executed and delivered by the parties thereto, and (iv) the consideration received by the Company for each of the Plan Shares delivered pursuant to the Plans shall not be less than the per share par value of the Plan Shares.

We do not express any opinion with respect to the law of any jurisdiction other than Delaware corporate law (including, to the extent applicable, the Delaware constitution and judicial decisions).

Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that the Plan Shares have been duly authorized for issuance by the Company and, when issued, delivered and paid for in accordance with the terms of the Plans and the applicable award agreement, the Plan Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Very truly yours,

/s/ Skadden, Arps, Slate, Meagher & Flom 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 2011 Equity Incentive Plan and 2011 Employee Stock Purchase Plan of Zynga Inc., of our reports dated February 19, 2016, with respect to the consolidated financial statements and schedule of Zynga Inc. and the effectiveness of internal control over financial reporting of Zynga Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2015, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Francisco, California
May 6, 2016

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