Tesla : Pre-effective amendment to an S-4 filing

Table of Contents

As filed with the Securities and Exchange Commission on March 15, 2019

Registration No. 333-229749

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Amendment No. 1

To

FORM S-4

REGISTRATION STATEMENT

Under

The Securities Act of 1933

Tesla, Inc.

(Exact name of registrant as specified in its charter)

Delaware

3711

91-2197729

(State or other jurisdiction of incorporation or organization)

(Primary Standard Industrial Classification Code Number)

(I .R .S. Em pl o y er Identification Number)

3500 Deer Creek Road Palo Alto, California 94304

[phone]

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)

Elon Musk

Chief Executive Officer

Tesla, Inc.

3500 Deer Creek Road Palo Alto, California 94304

[phone]

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

Copies to:

Mark B. Baudler	Jonathan A. Chang	Larry W. Nishnick
Michael S. Ringler	M. Yun Huh	Patrick J. O'Malley
Wilson Sonsini Goodrich & Rosati, P.C.	Rakhi I. Patel	DLA Piper LLP
650 Page Mill Road	Tesla, Inc.	4365 Executive Drive, Suite 1100
Palo Alto, California 94304	3500 Deer Creek Road	San Diego, California 92121
[phone]	Palo Alto, California 94304	[phone]
[phone]

Approximate date of commencement of proposed sale of the securities to the public: February 20, 2019, the date on which the preliminary prospectus and tender offer materials are filed and sent to securityholders. The offer cannot, however, be completed prior to the time this Registration Statement becomes effective. Accordingly, any actual sale or purchase of securities pursuant to the offer will occur only after this Registration Statement is effective, subject to the conditions to the transactions described herein.

If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

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.:

Large accelerated filer ☒	Accelerated filer	☐
Non-accelerated filer ☐	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. ☐

If applicable, place an ☐ in the box to designate the appropriate rule provision relied upon in conducting this transaction: Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

The information in this document is not complete and may change. The registrant may not complete the offer and issue these securities until the registration statement filed with the U.S. Securities and Exchange Commission is effective. This document is not an offer to sell these securities, and the registrant is not soliciting an offer to buy these securities, in any state or jurisdiction in which such offer is not permitted.

PRELIMINARY AND SUBJECT TO CHANGE, DATED MARCH 15, 2019

Offer by

CAMBRIA ACQUISITION CORP.

a direct wholly-owned subsidiary of

TESLA, INC.

to Exchange Each Outstanding Share of Common Stock of

MAXWELL TECHNOLOGIES, INC.

for

$4.75 in Fair Market Value of Shares of Common Stock of Tesla

(subject to the minimum as described in this prospectus/offer to exchange and the related letter of transmittal)

THE OFFER COMMENCED ON WEDNESDAY, FEBRUARY 20, 2019. THE OFFER AND THE WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., EASTERN TIME, AT THE END OF APRIL 2, 2019, UNLESS EXTENDED OR TERMINATED.

Tesla, Inc. ("Tesla"), a Delaware corporation, through its direct wholly-owned subsidiary Cambria Acquisition Corp., a Delaware corporation (the "Offeror"), is offering, upon the terms and subject to the conditions set forth in this document and in the accompanying letter of transmittal, to exchange each outstanding share of common stock of Maxwell Technologies, Inc., a Delaware corporation ("Maxwell"), par value $0.10 per share ("Maxwell common stock" and such shares of Maxwell common stock, "Maxwell shares"), that has been validly tendered and not validly withdrawn in the offer for a fraction of a share of Tesla's common stock, par value $0.001 per share ("Tesla common stock" and such shares of Tesla common stock, "Tesla shares") equal to the quotient obtained by dividing $4.75 by the volume weighted average of the daily volume weighted average of the trading price of one (1) share of Tesla common stock as reported on the Nasdaq Global Select Market for the five (5) consecutive trading days immediately preceding the second trading day prior to the date of the expiration of the offer, subject to the minimum, plus cash in lieu of any fractional shares of Tesla common stock, without interest and less any applicable withholding taxes. In the event that the Tesla common stock price is equal to or less than $245.90, the minimum will apply and each share of Maxwell common stock validly tendered and not validly withdrawn in the offer will be exchanged for 0.0193 of a share of Tesla common stock. For the avoidance of doubt, if the offer were to expire at 11:59 p.m., Eastern time on a Tuesday, then the five (5) consecutive trading days would be the preceding Monday through Friday assuming each day prior to the Tuesday expiration date was a trading day (other than Saturday or Sunday).

We refer to this as the "offer consideration."

The Offeror's obligation to accept for exchange Maxwell shares validly tendered (and not validly withdrawn) pursuant to the offer is subject to the satisfaction or waiver by the Offeror of certain conditions, including the condition that, prior to the expiration of the offer, there have been validly tendered and not validly withdrawn a number of Maxwell shares that, upon the consummation of the offer, together with Maxwell shares then owned by Tesla and the Offeror (if any), would represent at least a majority of the aggregate voting power of the Maxwell shares outstanding immediately after the consummation of the offer (which we refer to as the "minimum tender condition"), as more fully described under the section entitled "The Offer- Conditions of the Offer."

The offer is being made pursuant to an Agreement and Plan of Merger (which we refer to as the "merger agreement"), dated as of February 3, 2019, among Tesla, the Offeror and Maxwell. A copy of the merger agreement is attached to this document as Annex A.

The purpose of the offer is for Tesla to acquire control of, and ultimately the entire equity interest in, Maxwell. The offer is the first step in Tesla's plan to acquire all of the outstanding Maxwell shares. If the offer is completed and as a second step in such plan, Tesla intends to promptly consummate a merger of the Offeror with and into Maxwell, with Maxwell surviving the merger (the "merger"), subject to the terms and conditions of the merger agreement. The purpose of the merger is for Tesla to acquire all Maxwell shares that it did not acquire in the offer. In the merger, each outstanding Maxwell share that was not acquired by Tesla or the Offeror will be converted into the right to receive the offer consideration. Upon the consummation of the merger, the Maxwell business will be held in a wholly-owned subsidiary of Tesla, and the former Maxwell stockholders will no longer have any direct ownership interest in the surviving corporation. If the offer is completed, the merger will be consummated pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the "DGCL"), and accordingly no stockholder vote will be required to complete the merger. The board of directors of Maxwell unanimously: (i) determined that the terms of the merger agreement and the transactions contemplated by the merger agreement, including the offer, the merger and the issuance of Tesla shares in connection therewith, are fair to, and in the best interests of, Maxwell and its stockholders; (ii) determined that it is in the best interests of Maxwell and its stockholders and declared it advisable to enter into the merger agreement; and (iii) approved the execution and delivery by Maxwell of the merger agreement, the performance by Maxwell of its covenants and agreements contained in the merger agreement and the consummation of the offer, the merger and the other transactions contemplated by the merger agreement upon the terms and subject to the conditions contained in the merger agreement. The board of directors of Maxwell has also resolved to recommend that the stockholders of Maxwell accept the offer and tender their shares of Maxwell common stock to the Offeror pursuant to the offer.

The Tesla board of directors also determined that the merger agreement and the transactions contemplated by the merger agreement, including the offer and the merger and the issuance of Tesla shares in the offer and merger, are advisable and fair to, and in the best interests of, Tesla and its stockholders, and approved the execution and delivery by Tesla of the merger agreement.

Tesla common stock is listed on the Nasdaq Global Select Market under the symbol "TSLA" and Maxwell common stock is listed on the Nasdaq Global Market under the symbol "MXWL".

The offer and the merger, taken together, are intended to qualify as a reorganization for U.S. federal income tax purposes. Holders of Maxwell shares should read the section entitled "Material U.S. Federal Income Tax Consequences" for a more detailed discussion of certain U.S. federal income tax consequences of the offer and the merger to holders of Maxwell shares.

For a discussion of certain factors that Maxwell stockholders should consider in connection with the offer, please read the section of this document entitled "Risk Factors" beginning on page 24.

You are encouraged to read this entire document and the related letter of transmittal carefully, including the annexes and information referred to or incorporated by reference in this document.

Neither Tesla nor the Offeror has authorized any person to provide any information or to make any representation in connection with the offer other than the information contained or incorporated by reference in this document, and if any person provides any information or makes any representation of this kind, that information or representation must not be relied upon as having been authorized by Tesla or the Offeror.

Neither the U.S. Securities and Exchange Commission (the "SEC") nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this document. Any representation to the contrary is a criminal offense.

The date of this preliminary prospectus/offer to exchange is March 15, 2019.

TABLE OF CONTENTS

QUESTIONS AND ANSWERS ABOUT THE OFFER AND THE MERGER 2

SUMMARY 12

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF TESLA 20

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF MAXWELL 22

COMPARATIVE HISTORICAL AND PRO FORMA PER SHARE DATA 23

RISK FACTORS 24

FORWARD-LOOKING STATEMENTS 28

THE COMPANIES 29

Tesla, Inc. 29

The Offeror 29

Maxwell Technologies, Inc. 29

THE OFFER 30

General 30

Background of the Offer and the Merger 30

Maxwell Reasons for the Offer and the Merger; Recommendation of the Maxwell Board of Directors 34

Tesla's Reasons for the Offer and the Merger 37

Opinion of Maxwell's Financial Advisor 38

Distribution of Offering Materials 46

Expiration of the Offer 46

Extension, Termination and Amendment of Offer 46

Exchange of Shares; Delivery of Tesla Shares 48

Withdrawal Rights 48

Procedure for Tendering 49

No Guaranteed Delivery 50

Grant of Proxy 51

Fees and Commissions 51

Matters Concerning Validity and Eligibility 51

Announcement of Results of the Offer 52

Purpose of the Offer and the Merger 52

No Stockholder Approval 52

Non-Applicability of Rules Regarding "Going Private" Transactions 53

Plans for Maxwell 53

Ownership of Tesla Shares after the Offer and the Merger 53

Effect of the Offer on the Market for Maxwell Shares; Nasdaq Listing; Registration under the Exchange Act; Margin Regulations 54

Conditions of the Offer 55

Certain Legal Proceedings; Regulatory Approvals 56

Interests of Certain Persons in the Offer and the Merger 58

Certain Relationships with Maxwell 71

Fees and Expenses 71

Accounting Treatment 72

Stock Exchange Listing 72

Resale of Tesla Common Stock 72

Exchange Agent Contact Information 72

MERGER AGREEMENT 73

OTHER TRANSACTION AGREEMENTS 93

Support Agreement 93

Confidentiality Agreement 93

Exclusivity and Non-Solicitation Agreement 93

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COMPARATIVE MARKET PRICE 95

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF MAXWELL 96

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES 98

DESCRIPTION OF TESLA CAPITAL STOCK 102

COMPARISON OF STOCKHOLDERS' RIGHTS 105

LEGAL MATTERS 112

EXPERTS 112

WHERE TO OBTAIN MORE INFORMATION 112

Annex A	Agreement and Plan of Merger	A-1
Annex B	Opinion of Barclays Capital Inc.	B-1
Annex C	Directors and Executive Officers of Tesla and the Offeror	C-1

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