Securities Registration: Employee Benefit Plan (s-8)
February 23 2018 - 7:02AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on February 23, 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
Tesla, Inc.
(Exact name
of Registrant as specified in its charter)
|
|
|
Delaware
|
|
91-2197729
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification Number)
|
3500 Deer Creek Road
Palo Alto, California 94304
(Address of principal executive offices, including zip code)
Tesla, Inc. 2010 Equity Incentive Plan
(Full title of the plan)
Elon Musk
Chief Executive Officer
Tesla, Inc.
3500 Deer
Creek Road
Palo Alto, California 94304
(650)
681-5000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
|
|
|
Larry W. Sonsini
Mark B. Baudler
Wilson
Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
(650)
493-9300
|
|
Todd A. Maron
M. Yun Huh
Tesla,
Inc.
3500 Deer Creek Road
Palo Alto, California 94304
(650)
681-5000
|
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a
non-accelerated
filer, or a smaller reporting company, or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, and
smaller reporting company, and emerging growth company in Rule
12b-2
of the Exchange Act.
|
|
|
|
|
|
|
Large accelerated filer
|
|
☒
|
|
Accelerated filer
|
|
☐
|
|
|
|
|
Non-accelerated
filer
|
|
☐ (do not check if a smaller reporting company)
|
|
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, $0.001 par value per share
|
|
5,333,333(2)
|
|
$328.26(3)
|
|
$1,750,719,891
|
|
$217,964.63
|
|
|
(1)
|
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrants common stock that become issuable under the 2010 Equity
Incentive Plan, as amended (2010 Plan) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding shares of
common stock.
|
(2)
|
Represents 5,333,333 additional shares of common stock available for issuance as a result of the annual evergreen increase for 2017 pursuant to the 2010 Plan.
|
(3)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the high and
low prices of the Registrants common stock on February 15, 2018, as reported on the Nasdaq Global Select Market.
|
EXPLANATORY NOTE
Registration of Additional Securities
2010 Equity Incentive Plan
The
Tesla, Inc. 2010 Equity Incentive Plan, as amended (the 2010 Plan), includes an evergreen provision that provides that the total number of shares reserved for issuance under the 2010 Plan will be increased as of the first day of each fiscal year in
an amount equal to the least of (i) 5,333,333 shares, (ii) four percent (4%) of the outstanding shares of common stock on the last day of the immediately preceding fiscal year, or (iii) such number of shares determined by our
Board of Directors. On June 29, 2010, August 2, 2012, March 7, 2013, August 8, 2014, February 24, 2016 and March 1, 2017, we filed with the Securities and Exchange Commission Registration Statements on Form
S-8,
Registration Nos.
333-167874,
333-183033,
333-187113,
333-198002,
333-209696,
and
333-216376,
respectively (the Prior Registration Statements), relating to shares of our common stock
reserved for issuance under the 2010 Plan. We are filing this Registration Statement on Form
S-8
to register an additional 5,333,333 shares of our common stock under the 2010 Plan as a result of the evergreen
increase for 2017 as determined by our Board of Directors.
2010 Employee Stock Purchase Plan
The Tesla, Inc. 2010 Employee Stock Purchase Plan, as amended (2010 ESPP), includes an evergreen provision that provides that the total number
of shares reserved for issuance under the 2010 ESPP will be increased as of the first day of each fiscal year in an amount equal to the least of (i) 1,000,000 shares, (ii) one percent (1%) of the outstanding shares of common stock on
such date, or (iii) an amount determined by our Board of Directors. We registered shares of our common stock reserved for issuance under the 2010 ESPP pursuant to the Prior Registration Statements, Registration Nos.
333-167874,
333-183033
and
333-187113.
Our Board of Directors determined not to increase the number of shares reserved for issuance
under the 2010 ESPP for 2017, and consequently no additional shares are being reserved for issuance under the 2010 ESPP pursuant to this Registration Statement on Form
S-8.
In accordance with Instruction E of Form
S-8,
the contents of the Prior Registration Statements are
hereby incorporated by reference in this Registration Statement on Form
S-8.
PART I
The Registrant is not filing or including in this Registration Statement the information called for in Part I of Form
S-8
(by incorporation, by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.
|
Incorporation of Documents by Reference.
|
The Securities and Exchange Commission (SEC)
allows the Registrant to incorporate by reference the information the Registrant files with the SEC, which means that the Registrant can disclose important information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this Registration Statement, and later information filed with (rather than furnished to) the SEC will update and supersede this information. The Registrant hereby incorporates by reference into
this Registration Statement the following documents previously filed with the SEC:
|
(1)
|
The Registrants Annual Report on Form
10-K
for the fiscal year ended December 31, 2017, filed with the SEC on February 23, 2018;
|
|
(2)
|
All other reports filed by the Registrant with the SEC pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act) since the end of the fiscal year covered by the Registrants
Annual Report referred to in (1) above; and
|
|
(3)
|
The description of the Registrants Common Stock contained in its registration statement on
Form 8-A
(File No. 001-34756)
filed with the SEC on May 27, 2010, 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 Securities Exchange Act of 1934 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. Notwithstanding the foregoing, the Registrant is not incorporating by reference any documents, portions of
documents, exhibits or other information that is deemed to have been furnished to, rather than filed with, the SEC.
|
|
|
Exhibit
Number
|
|
Description
|
|
|
4.1
|
|
Specimen common stock certificate of Registrant (which is incorporated herein by reference to Exhibit 4.1 to the Registrants Annual Report
on Form
10-K,
filed with the SEC on March 1, 2017)
|
|
|
4.2
|
|
2010 Equity Incentive Plan, as amended (which is incorporated herein by reference to Exhibit 10.4 to the Registrants Annual Report on
Form
10-K,
filed with the SEC on February 23, 2018)
|
|
|
4.3
|
|
Form of Stock Option Agreement under the 2010 Equity Incentive Plan, as amended (which is incorporated herein by reference to Exhibit 10.6
to the Registrants Annual Report on Form 10-K, filed with the SEC on March 1, 2017)
|
|
|
4.4
|
|
Form of Restricted Stock Unit Agreement under the 2010 Equity Incentive Plan, as amended (which is incorporated herein by reference to Exhibit
10.7 to the Registrants Annual Report on Form 10-K, filed with the SEC on March 1, 2017)
|
|
|
5.1*
|
|
Opinion of Wilson Sonsini Goodrich
& Rosati, Professional Corporation
|
|
|
23.1*
|
|
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm
|
|
|
23.2*
|
|
Consent of Ernst
& Young LLP, Independent Registered Public Accounting Firm
|
|
|
23.3*
|
|
Consent of Wilson Sonsini Goodrich
& Rosati, Professional Corporation (contained in Exhibit 5.1 hereto)
|
|
|
24.1*
|
|
Power of Attorney (contained on signature page hereto)
|
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 20% 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) 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 Registrants 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
plans 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act 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 Fremont,
State of California, on February 22, 2018.
|
|
|
TESLA, INC.
|
|
|
By:
|
|
/s/ Deepak Ahuja
|
|
|
Deepak Ahuja
Chief Financial Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Elon Musk and Todd Maron
and each of them, as his true and lawful attorney in fact and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form
S-8
(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 attorney in fact, proxy and agent 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney in
fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement on Form
S-8
has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
/s/ Elon Musk
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
February 22, 2018
|
Elon Musk
|
|
|
|
|
|
|
/s/ Deepak Ahuja
|
|
Chief Financial Officer
(Principal Financial Officer)
|
|
February 22, 2018
|
Deepak Ahuja
|
|
|
|
|
|
|
/s/ Eric Branderiz
|
|
Chief Accounting Officer
(Principal Accounting Officer)
|
|
February 22, 2018
|
Eric Branderiz
|
|
|
|
|
|
|
/s/ Brad W. Buss
|
|
Director
|
|
February 22, 2018
|
Brad W. Buss
|
|
|
|
|
|
|
|
/s/ Robyn Denholm
|
|
Director
|
|
February 22, 2018
|
Robyn Denholm
|
|
|
|
|
|
|
|
/s/ Ira Ehrenpreis
|
|
Director
|
|
February 22, 2018
|
Ira Ehrenpreis
|
|
|
|
|
|
|
|
/s/ Antonio J. Gracias
|
|
Director
|
|
February 22, 2018
|
Antonio J. Gracias
|
|
|
|
|
|
|
|
/s/ James Murdoch
|
|
Director
|
|
February 22, 2018
|
James Murdoch
|
|
|
|
|
|
|
|
/s/ Kimbal Musk
|
|
Director
|
|
February 22, 2018
|
Kimbal Musk
|
|
|
|
|
|
|
|
/s/ Linda Johnson Rice
|
|
Director
|
|
February 22, 2018
|
Linda Johnson Rice
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
Stephen T. Jurvetson
|
|
|
|
|
Tesla (NASDAQ:TSLA)
Historical Stock Chart
From Mar 2024 to Apr 2024
Tesla (NASDAQ:TSLA)
Historical Stock Chart
From Apr 2023 to Apr 2024