UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
May 24, 2013
Tesla Motors, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-34756 | 91-2197729 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
3500 Deer Creek Road
Palo Alto, California 94304
(Address of principal executive offices, including zip code)
(650) 681-5000
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 | Entry into a Material Definitive Agreement |
The information set forth in Item 8.01 of this Current Report on Form 8-K under the headings “Additional Note Hedge Transactions” and “Additional Warrant Transactions” is incorporated by reference into this Item 1.01.
| Item 3.02 | Unregistered Sales of Equity Securities |
The information set forth in Item 8.01of this Current Report on Form 8-K under the headings “Additional Warrant Transactions” and “Completion of Private Placement of Common Stock” is incorporated by reference into this Item 3.02.
| Item 8.01 | Other Events |
On May 24, 2013, Goldman, Sachs & Co. notified Tesla Motors, Inc. (the “Company”) of its exercise in full of its option to purchase 509,069 shares (the “Option Shares”) of common stock of the Company, par value $0.001 per share (the “Common Stock”), and Goldman, Sachs & Co., Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC notified the Company of their exercise in full of their option to purchase $60.0 million aggregate principal amount (the “Option Notes”) of the Company’s 1.50% Convertible Senior Notes due June 1, 2018 (the “Notes”), in each case pursuant to the applicable underwriting agreement with the Company relating to the Company’s underwritten public offerings of Common Stock and Notes pursuant to a Registration Statement on Form S-3 (File No. 333-188625) (the “Registration Statement”) and a related prospectus, including the related prospectus supplements, filed with the Securities and Exchange Commission (the “Commission”). On May 30, 2013, the Company closed the offerings of the Option Shares and Option Notes.
In connection with these offerings, the legal opinion as to the legality of the Option Shares and Option Notes sold is being filed as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein and into the Registration Statement by reference.
Additional Note Hedge Transactions
On May 24, 2013, in connection with the offering of the Option Notes, the Company entered into note hedge transactions with affiliates of each of Goldman, Sachs & Co. and Morgan Stanley & Co. LLC (the “Hedge Counterparties”) pursuant to call option confirmations in substantially the form of Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference. The note hedge transactions are expected generally to reduce the potential dilution to the Common Stock and/or offset potential cash payments in excess of the principal amount upon any conversion of the Option Notes in the event that the market value per share of the Common Stock, as measured under the terms of the note hedge transactions, is greater than the strike price of the note hedge transactions (which corresponds to the initial conversion price of the Notes and is subject to certain adjustments substantially similar to those contained in the Notes). On May 30, 2013, at the closing of the offering of the Option Notes, the Company paid an aggregate amount of approximately $16.1 million to the Hedge Counterparties for the note hedge transactions.
Additional Warrant Transactions
On May 24, 2013, in connection with the offering of the Option Notes and in order to partially offset the cost of the note hedge transactions relating to the Option Notes, the Company entered into warrant confirmations with the Hedge Counterparties in substantially the form of Exhibit 10.2 to this Current Report on Form 8-K, which is incorporated herein by reference, pursuant to which the Company issued certain warrants (the “Additional Warrants”). The Additional Warrants allow the Hedge Counterparties to acquire, subject to anti-dilution adjustments, up to approximately 482,000 shares of Common Stock at a strike price of $184.48 per share, also subject to adjustment. The Additional Warrants would separately have a dilutive effect to the extent that the market value per share of the Common Stock exceeds the applicable strike price of the Additional Warrants. The Additional Warrants were issued pursuant to the exemption provided by Section 4(2) of the Securities Act of
1933, as amended (the “Securities Act”). The Additional Warrants are separate transactions, entered into by the Company with the Hedge Counterparties, and are not part of the terms of the Notes. Holders of the Notes will not have any rights with respect to the Additional Warrants. On May 30, 2013, at the closing of the offering of the Option Notes, the Company received aggregate proceeds of approximately $10.9 million from the sale of the Additional Warrants to the Hedge Counterparties.
Completion of Private Placement of Common Stock
On May 30, 2013, the Company closed its issuance and sale of 596,272 shares of Common Stock to the Elon Musk Revocable Trust dated July 22, 2003, an entity affiliated with Elon Musk, the Company’s Chief Executive Officer and cofounder, for an aggregate purchase price of approximately $55.0 million. The purchase price per share in the private placement was $92.24, which is equal to the purchase price per share to the public of Common Stock issued and sold pursuant to the Registration Statement. The shares were sold pursuant to the exemption provided by Section 4(2) of the Securities Act and Regulation D promulgated thereunder.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits.
| Exhibit |
Description | |
| 5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, P.C. | |
| 10.1 | Form of Call Option Confirmation (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 22, 2013). | |
| 10.2 | Form of Warrant Confirmation (incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on May 22, 2013). | |
| 23.1 | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1). | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TESLA MOTORS, INC. | ||
| By: | /s/ Deepak Ahuja | |
| Deepak Ahuja Chief Financial Officer | ||
Date: May 30, 2013
EXHIBIT INDEX
| Exhibit |
Description | |
| 5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, P.C. | |
| 10.1 | Form of Call Option Confirmation (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 22, 2013). | |
| 10.2 | Form of Warrant Confirmation (incorporated herein by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed on May 22, 2013). | |
| 23.1 | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1). | |
Exhibit 5.1
[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
May 30, 2013
Tesla Motors, Inc.
3500 Deer Creek Road,
Palo Alto, California 94304
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Tesla Motors, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company with the Securities and Exchange Commission (the “Commission”) on May 15, 2013 of a registration statement on Form S-3 (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Act”), that is automatically effective under the Act pursuant to Rule 462(e) promulgated thereunder. The Registration Statement relates to, among other things, the proposed issuance and sale, from time to time, by the Company of debt securities (the “Debt Securities”) and shares of the Company’s Common Stock, $0.001 par value per share (the “Common Stock” and together with the Debt Securities, the “Securities”), each with an indeterminate amount as may at various times be issued at indeterminate prices, in reliance on Rule 456(b) and Rule 457(r) under the Act. The Debt Securities and Common Stock are to be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”), and the supplements to the Prospectus (the “Prospectus Supplements”).
Pursuant to the Registration Statement, the Company has issued $60,000,000 of Convertible Senior Notes due June 1, 2018 (the “Notes”), all of which will be sold to Goldman, Sachs & Co., Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC (collectively, the “Underwriters”), pursuant to that certain Underwriting Agreement, dated as of May 16, 2013 (the “Note Underwriting Agreement”), between the Company and the Underwriters. Additionally, the Company has issued 509,069 shares of Common Stock (the “Shares”), all of which will be sold to Goldman, Sachs & Co. pursuant to that certain Underwriting Agreement, dated as of May 16, 2013 (the “Common Underwriting Agreement”), between the Company and Goldman, Sachs & Co.
The Notes have been issued in the form set forth in the Indenture, dated as of May 22, 2013 (the “Base Indenture”), by and between the Company and U.S. Bank National Association, as trustee (the “Trustee”) and the First Supplemental Indenture, dated as of May 22, 2013 (collectively with the Base Indenture, the “Indenture”), by and between the Company and the Trustee. The Notes are also convertible initially up to 481,836 shares of Common Stock (such number of shares of Common Stock issuable upon conversion of the Notes referred to herein as, the “Conversion Shares”).
We have examined the Registration Statement, together with the exhibits thereto and the documents incorporated by reference therein; the base prospectus, dated May 15, 2013, together with the documents incorporated by reference therein, filed with the Registration Statement relating to the offering of each of the Notes and the Shares (the “Base Prospectus”); the preliminary prospectus supplement, dated May 15, 2013, in the form filed with the Commission pursuant to Rule 424(b) of the Securities Act relating to the offering of the Notes; the final prospectus supplement, dated May 16, 2013, in the form filed with the Commission pursuant to Rule 424(b) of the Securities Act relating to the offering of the
Tesla Motors, Inc.
May 30, 2013
Page 2 of 3
Notes (collectively with the Base Prospectus, the “Note Prospectus Supplement”); the preliminary prospectus supplement, dated May 15, 2013, in the form filed with the Commission pursuant to Rule 424(b) of the Securities Act relating to the offering of the Shares; the final prospectus supplement, dated May 16, 2013, in the form filed with the Commission pursuant to Rule 424(b) of the Securities Act relating to the offering of the Shares (collectively with the Base Prospectus, the “Common Stock Prospectus Supplement” and together with the Note Prospectus Supplement, the “Prospectus Supplements”); the Indenture and the Notes. In addition, we have examined such other instruments, documents, certificates and records which we have deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed; (iv) each Underwriting Agreement has been duly authorized and validly executed and delivered by the parties thereto (other than the Company); and (v) the legal capacity of all natural persons. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
We express no opinion as to the laws of any jurisdiction, other than the Federal laws of the United States of America, the laws of the State of New York, and the General Corporation Law of the State of Delaware (the “DGCL”), as such are in effect on the date hereof, and we have made no inquiry into, and we express no opinion as to, the statutes, regulations, treaties, common laws or other laws of any other nation, state or jurisdiction.
We express no opinion as to (i) the effect of any bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other similar laws relating to or affecting the rights of creditors generally, (ii) rights to indemnification and contribution which may be limited by applicable law or equitable principles, or (iii) the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, the effect of judicial discretion and the possible unavailability of specific performance, injunctive relief or other equitable relief, and the limitations on rights of acceleration, whether considered in a proceeding in equity or at law.
Based on such examination, we are of the opinion that:
| 1. | The Notes have been validly issued and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and entitled to the benefits of the Indenture. |
| 2. | When the applicable conversion right has been duly exercised in accordance with the terms of the Notes and the Indenture, and the Conversion Shares have been issued and delivered upon such exercise in accordance with the terms of the Notes and the Indenture, the Conversion Shares will be validly issued, fully paid and nonassessable. |
| 3. | The Shares have been validly issued, and are fully paid and nonassessable. |
Tesla Motors, Inc.
May 30, 2013
Page 3 of 3
We hereby consent to the filing of this opinion as an exhibit to the above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement, the Base Prospectus, each Prospectus Supplement, and in any amendment or supplement thereto. In giving such consent, we do not believe that we are “experts” within the meaning of such term as used in the Act or the rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation