This Amendment No. 5 (this Amendment No. 5) amends and supplements the Tender
Offer Statement on Schedule TO, originally filed with the Securities and Exchange Commission (the SEC) on February 20, 2019, as amended by Amendment No. 1 to the Tender Offer Statement filed with the SEC on March 15, 2019 and
further amended by Amendment No. 2 to the Tender Offer Statement filed with the SEC on March 28, 2019, by Amendment No. 3 to the Tender Offer Statement filed with the SEC on April 3, 2019 and by Amendment No. 4 to the Tender Offer Statement
filed with the SEC on April 8, 2019 (together with any subsequent amendments and supplements thereto, the Schedule TO), by Tesla, Inc., a Delaware corporation (Tesla), and Cambria Acquisition Corp., a Delaware corporation and
a direct wholly-owned subsidiary of Tesla (the Offeror). This Schedule TO relates to the offer by the Offeror to exchange for 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share (Maxwell common stock and such shares of Maxwell common stock, Maxwell shares), validly tendered and not validly withdrawn in the offer, for a fraction of a share of Tesla
common stock, par value $0.001 per share (which we refer to as 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, together with 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to or less than $245.90, the minimum will apply and each share of Maxwell common stock validly tendered and not validly withdrawn in the offer will be exchanged for 0.0193 of a share of Tesla common stock. The foregoing consideration, the
Offer Consideration, and such offer, on the terms and subject to the conditions and procedures set forth in the prospectus/offer to exchange, dated February 20, 2019 (the Prospectus/Offer to Exchange), and in the related
letter of transmittal (the Letter of Transmittal), together with any amendments or supplements thereto, the Offer.
Tesla has filed with the SEC a Registration Statement on
Form S-4
dated February 20, 2019,
relating to the offer and sale of shares of Tesla common stock to be issued to holders of shares of Maxwell common stock validly tendered and not validly withdrawn in the Offer (as amended, the Registration Statement). The terms and
conditions of the Offer are set forth in the Prospectus/Offer to Exchange, which is a part of the Registration Statement, and the Letter of Transmittal, which were filed as Exhibits (a)(4) and (a)(1)(A), respectively, to the Schedule TO.
Pursuant to General Instruction F to Schedule TO, the information contained in the Prospectus/Offer to Exchange and the Letter of Transmittal, including any prospectus supplement or other supplement thereto related to the Offer hereafter
filed with the SEC by Tesla or the Offeror, is hereby expressly incorporated into the Schedule TO by reference in response to Items 1 through 11 of the Schedule TO and is supplemented by the information specifically provided for in the Schedule
TO. The Agreement and Plan of Merger, dated as of February 3, 2019, by and among Tesla, the Offeror and Maxwell, a copy of which is filed as Exhibit (d)(1) to the Schedule TO, is incorporated into the Schedule TO by reference.
All information regarding the Offer as set forth in the Schedule TO, including all exhibits and annexes thereto that were previously filed
with the Schedule TO, is hereby expressly incorporated by reference into this Amendment No. 5, except that such information is hereby amended and supplemented to the extent specifically provided for herein and to the extent amended and supplemented
by the exhibits filed herewith. Capitalized terms used but not defined in this Amendment No. 5 have the meanings ascribed to them in the Schedule TO.
Items 1 through 9.
Items 1 through 9 of
the Schedule TO are hereby amended and supplemented as set forth in the Prospectus/Offer to Exchange, which is filed as Exhibit (a)(4) hereto.
All of the information in the Prospectus/Offer to Exchange and the Letter of Transmittal, and any supplement or other amendment thereto
related to the offer hereafter filed with the SEC by Tesla or the Offeror, is hereby incorporated by reference in answer to Items 1 through 9 of Schedule TO.
Item 10.
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Financial Statements.
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Item 10(a) of the Schedule TO is hereby amended and restated as follows:
(a) The information set forth in the sections of the Prospectus/Offer to Exchange entitled
Selected Historical Consolidated Financial
Data of Tesla,
Selected Historical Consolidated Financial Data of Maxwell
and
Where to Obtain More Information
is incorporated into this Schedule TO by reference. The audited financial statements of
Tesla, Inc. as of December 31, 2018 and 2017 and for the three years ended December 31, 2018 are incorporated by reference herein to the consolidated financial statements of Tesla, Inc. included as Item 8 to Tesla, Inc.s Annual Report on Form
10-K filed with the SEC on February 19, 2019. The unaudited interim financial statements of Tesla, Inc. as of March 31, 2019 and 2018 and for the quarters ended March 31, 2019 and 2018 are incorporated by reference herein to the
consolidated financial statements of Tesla, Inc. included as Item 1 to Tesla, Inc.s Quarterly Report on Form 10-Q filed with the SEC on April 29, 2019.
(b) The information set forth in the sections of the Prospectus/Offer to Exchange entitled
Comparative Historical and Pro Forma Per
Share Data
is incorporated into this Schedule TO by reference.
Item 11.
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Additional Information.
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Item 11 of the Schedule TO is hereby amended and supplemented as set forth in the Prospectus/Offer to Exchange, which is filed as Exhibit
(a)(4) hereto and by amending and restating the subsection entitled Certain Legal Proceedings as follows:
Certain Legal Proceedings
In connection with the merger agreement and the transactions contemplated thereby, nine purported class action lawsuits have been
filed, which are attached as Exhibit (a)(5)(D), Exhibit (a)(5)(E), Exhibit (a)(5)(F), Exhibit (a)(5)(G), Exhibit (a)(5)(H), Exhibit (a)(5)(I), Exhibit (a)(5)(J), Exhibit (a)(5)(K) and Exhibit (a)(5)(O) to this Amendment No. 5.
All of the information in the Prospectus/Offer to Exchange and the Letter of Transmittal, and any supplement or other amendment thereto
related to the offer hereafter filed with the SEC by Tesla or the Offeror, is hereby incorporated by reference in answer to Item 11 of the Schedule TO.