Tesla : Securities offered to employees pursuant to employee benefit plans

As filed with the Securities and Exchange Commission on June 12, 2019

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	(I.R.S. Employer
incorporation or organization)	Identification Number)
	3500 Deer Creek Road
	Palo Alto, California 94304
(Address of principal executive offices, including zip code)
Tesla, Inc. 2019 Equity Incentive Plan
Tesla, Inc. 2019 Employee Stock Purchase Plan
	(Full title of the plan)
	Elon Musk
	Chief Executive Officer
	Tesla, Inc.
	3500 Deer Creek Road
	Palo Alto, California 94304
[phone]
(Name, address and telephone number, including area code, of agent for service)
	Copies to:
Larry W. Sonsini	Jonathan A. Chang
Mark B. Baudler	M. Yun Huh
Andrew D. Hoffman	Tesla, Inc.
Wilson Sonsini Goodrich & Rosati, P.C.	3500 Deer Creek Road
650 Page Mill Road	Palo Alto, California 94304
Palo Alto, California 94304	[phone]
[phone]

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	☐	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

			Proposed	Proposed
		Amount	Maximum	Maximum
Title of Securities	to be	Offering Price	Aggregate	Amount of
to be Registered	Registered (1)	Per Share	Offering Price	Registration Fee
Common stock, $0.001 par value per share
-To be issued under the 2019	Equity Incentive Plan	12,500,000	$196.57(2)	$2,457,125,000	$297,804
-To be issued under the 2019	Employee Stock Purchase Plan	7,500,000	$167.09(3)	$1,253,175,000	$151,885
TOTAL:				$3,710,300,000	$449,689

1. Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement shall also cover any additional shares of the Registrant's common stock that become issuable under the 2019 Equity Incentive Plan (the "2019 Plan") and the 2019 Employee Stock Purchase Plan (the "2019 ESPP") by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant's outstanding shares of common stock.
2. 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 Registrant's common stock as reported on the Nasdaq Global Select Market on June 5, 2019 (such average, the "Full Offering Price").
3. Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of the Full Offering Price. Pursuant to the 2019 ESPP, which plan is incorporated by reference herein, 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.

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 Registrant's Annual Report on Form 10-Kfor the fiscal year ended December 31, 2018, filed with the SEC on February 19, 2019;
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, as amended (the "Exchange Act"), since the end of the fiscal year covered by Registrant's Annual Report referred to in (1) above; and
3. The description of the Registrant's 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.

Item 6. Indemnification of Directors and Officers.

The Registrant's amended and restated certificate of incorporation contains provisions that limit the liability of the Registrant's directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, the Registrant's directors will not be personally liable to the Registrant or the Registrant's stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:

• any breach of the director's duty of loyalty to the Registrant or the Registrant's stockholders;
• any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
• unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
• any transaction from which the director derived an improper personal benefit.

These limitations of liability do not apply to liabilities arising under federal securities laws and do not affect the availability of equitable remedies such as injunctive relief or rescission.

The Registrant's amended and restated certificate of incorporation and amended and restated bylaws provide that the Registrant is required to indemnify the Registrant's directors and officers, in each case to the fullest extent permitted by Delaware law. Any repeal of or modification to the Registrant's amended and restated certificate of incorporation or amended and restated bylaws may not adversely affect any right or protection of a director or officer for or with respect to any acts or omissions of that director or officer occurring prior to that amendment or repeal. The Registrant's amended and restated bylaws also provide that the Registrant will advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit the Registrant to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether the Registrant would otherwise be permitted to indemnify him or her under the provisions of Delaware law. The Registrant has obtained such a directors' and officers' liability insurance policy. The Registrant has entered and expects to continue to enter into agreements to indemnify the Registrant's directors and executive officers. With certain exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys' fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. The Registrant believes that these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers.

The limitation of liability and indemnification provisions in the Registrant's amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against the Registrant's directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against the Registrant's directors and officers, even though an action, if successful, might benefit the Registrant and other stockholders. Further, a stockholder's investment may be adversely affected to the extent that the Registrant pays the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. At present, there is no pending litigation or proceeding involving any of the Registrant's directors or executive officers for which indemnification is sought, and the Registrant is not aware of any threatened litigation that may result in claims for indemnification. Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, executive officers or persons controlling the Registrant, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

See also the undertakings set out in response to Item 9 herein.

Item 8.	Exhibits.
Exhibit							Incorporated by Reference
Number			Description	Form		File No.	Exhibit	Filing Date
4.1			Specimen common stock certificate of the Registrant.		10-K		001-34756	4.1	March 1, 2017
4.2*			2019 Equity Incentive Plan.	-	-	-	-
4.3*			Form of Stock Option Agreement under 2019 Equity Incentive Plan.	-	-	-	-
4.4*			Form of Restricted Stock Unit Award Agreement under 2019 Equity Incentive	-	-	-	-
			Plan.
4.5*			2019 Employee Stock Purchase Plan.	-	-	-	-
4.6			Fifth Amended and Restated Investors' Rights Agreement, dated as of August	S-1	333-164593	4.2	January 29, 2010
			31, 2009, between Registrant and certain holders of the Registrant's capital
			stock named therein.
4.7			Amendment to Fifth Amended and Restated Investors' Rights Agreement,	S-1/A	333-164593	4.2A	May 27, 2010
			dated as of May 20, 2010, between Registrant and certain holders of the
			Registrant's capital stock named therein.

1. Amendment to Fifth Amended and Restated Investors' Rights Agreement between Registrant, Toyota Motor Corporation and certain holders of the Registrant's capital stock named therein.
2. Amendment to Fifth Amended and Restated Investor's Rights Agreement, dated as of June 14, 2010, between Registrant and certain holders of the Registrant's capital stock named therein.

1. Amendment to Fifth Amended and Restated Investor's Rights Agreement, dated as of November 2, 2010, between Registrant and certain holders of the Registrant's capital stock named therein.
2. Waiver to Fifth Amended and Restated Investor's Rights Agreement, dated as of May 22, 2011, between Registrant and certain holders of the Registrant's capital stock named therein.
3. Amendment to Fifth Amended and Restated Investor's Rights Agreement, dated as of May 30, 2011, between Registrant and certain holders of the Registrant's capital stock named therein.
4. Sixth Amendment to Fifth Amended and Restated Investors' Rights Agreement, dated as of May 15, 2013 among the Registrant, the Elon Musk Revocable Trust dated July 22, 2003 and certain other holders of the capital stock of the Registrant named therein.
5. Waiver to Fifth Amended and Restated Investor's Rights Agreement, dated as of May 14, 2013, between the Registrant and certain holders of the capital stock of the Registrant named therein.
6. Waiver to Fifth Amended and Restated Investor's Rights Agreement, dated as of August 13, 2015, between the Registrant and certain holders of the capital stock of the Registrant named therein.
7. Waiver to Fifth Amended and Restated Investors' Rights Agreement, dated as of May 18, 2016, between the Registrant and certain holders of the capital stock of the Registrant named therein.
8. Waiver to Fifth Amended and Restated Investors' Rights Agreement, dated as of March 15, 2017, between the Registrant and certain holders of the capital stock of the Registrant named therein.
9. Indenture, dated as of May 22, 2013, by and between the Registrant and U.S. Bank National Association.
10. Second Supplemental Indenture, dated as of March 5, 2014, by and between the Registrant and U.S. Bank National Association.
11. Form of 0.25% Convertible Senior Note Due March 1, 2019 (included in Exhibit 4.19).
12. Third Supplemental Indenture, dated as of March 5, 2014, by and between the Registrant and U.S. Bank National Association.
13. Form of 1.25% Convertible Senior Note Due March 1, 2021 (included in Exhibit 4.21).
14. Fourth Supplemental Indenture, dated as of March 22, 2017, by and between the Registrant and U.S. Bank National Association.
15. Form of 2.375% Convertible Senior Note Due March 15, 2022 (included in Exhibit 4.23).
16. Fifth Supplemental Indenture, dated as of May 7, 2019, by and between the Registrant and U.S. Bank National Association.
17. Form of 2.00% Convertible Senior Note Due May 15, 2024 (included in Exhibit 4.25).

S-1/A	333-164593	4.2B	May 27, 2010
S-1/A	333-164593	4.2C	June 15, 2010
8-K	001-34756	4.1	November 4, 2010
S-1/A	333-174466	4.2E	June 2, 2011
8-K	001-34756	4.1	June 1, 2011
8-K	001-34756	4.1	May 20, 2013
8-K	001-34756	4.2	May 20, 2013
8-K	001-34756	4.1	August 19, 2015
8-K	001-34756	4.1	May 24, 2016
8-K	001-34756	4.1	March 17, 2017
8-K	001-34756	4.1	May 22, 2013
8-K	001-34756	4.2	March 5, 2014
8-K	001-34756	4.2	March 5, 2014
8-K	001-34756	4.4	March 5, 2014
8-K	001-34756	4.4	March 5, 2014
8-K	001-34756	4.2	March 22, 2017
8-K	001-34756	4.2	March 22, 2017
8-K	001-34756	4.2	May 8, 2019
8-K	001-34756	4.2	May 8, 2019