Current Report Filing (8-k)
22 November 2016 - 8:09AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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): November 21, 2016
TESLA MOTORS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-34756
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91-2197729
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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3500 Deer Creek Road
Palo Alto, California 94304
(Address of principal executive offices)
(650) 681-5000
(Registrants telephone number, including area code)
Not Applicable
(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. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Introductory Note
On November 21, 2016 (the
Closing Date
), upon the terms and subject to the conditions set forth in the Agreement and Plan of
Merger (the
Merger Agreement
), dated as of July 31, 2016, among Tesla Motors, Inc. (
Tesla
), SolarCity Corporation (
SolarCity
) and D Subsidiary, Inc., a wholly owned subsidiary of Tesla
(
Merger Sub
), and in accordance with applicable law, Merger Sub merged with and into SolarCity (the
Merger
), with SolarCity surviving the Merger as a wholly owned subsidiary of Tesla.
Item 1.01.
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Entry into a Material Definitive Agreement.
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In connection with the completion of the
Merger, SolarCity entered into supplemental indentures (collectively, the
Supplemental Indentures
) with respect to each of (i) the Indenture, dated as of October 21, 2013, between SolarCity and Wells Fargo Bank, National
Association, as trustee, governing SolarCitys 2.75% Convertible Senior Notes due 2018, (ii) the Indenture, dated as of September 30, 2014, between SolarCity and Wells Fargo Bank, National Association, as trustee, governing SolarCitys
1.625% Convertible Senior Notes due 2019, and (iii) the Indenture, dated as of December 7, 2015, between SolarCity and Wells Fargo Bank, National Association, as trustee, governing SolarCitys Zero Coupon Convertible Senior Notes due 2020. The
Supplemental Indentures provide that, following the consummation of the Merger, the holders of SolarCitys convertible notes will have the right to convert each $1,000 of principal amount of their convertible notes into, in lieu of SolarCity
Common Stock (as defined below), the number of shares of Tesla Common Stock (as defined below) that a holder of a number of shares of SolarCity Common Stock equal to the conversion rate immediately prior to the effective time of the Merger would
have been entitled to receive upon consummation of the Merger.
The foregoing description of the Supplemental Indentures does not purport
to be complete and is qualified in its entirety by reference to the Supplemental Indentures, which are included as Exhibits 4.1, 4.2 and 4.3 hereto and incorporated into this Item 1.01 by reference.
Item 2.01.
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Completion of Acquisition or Disposition of Assets.
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As described above, on the Closing
Date, Tesla completed its previously announced acquisition of SolarCity. As a result of the Merger, SolarCity became a wholly owned subsidiary of Tesla.
Under the terms of the Merger Agreement, at the effective time of the Merger (the
Effective Time
), each share of SolarCity
common stock, par value $0.0001 per share (the
SolarCity Common Stock
), issued and outstanding immediately prior to the Effective Time (other than shares of SolarCity Common Stock owned by SolarCity as treasury stock or owned by
Tesla or Merger Sub, which were cancelled) was converted into the right to receive 0.110 (the
Exchange Ratio
) shares of Tesla common stock, par value $0.001 per share (the
Tesla Common Stock
). No fractional
shares of Tesla Common Stock were issued in the Merger, and SolarCity stockholders became entitled to receive cash in lieu of any fractional shares.
At the Effective Time, SolarCity options and SolarCity restricted stock unit awards were converted into corresponding equity awards in respect
of Tesla Common Stock based on the Exchange Ratio, with the awards retaining the same vesting and other terms and conditions as in effect immediately prior to consummation of the Merger (except for certain founder options granted in 2015, which were
cancelled for no consideration).
Upon the closing of the Merger, the shares of SolarCity Common Stock, which previously traded under the
ticker symbol SCTY on the NASDAQ Stock Market (the
NASDAQ
), have ceased trading on, and were delisted from, the NASDAQ.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference
to the Merger Agreement, a copy of which was attached as Exhibit 2.1 to Teslas Current Report on Form 8-K filed with the Securities and Exchange Commission (the
SEC
) on August 1, 2016, and is incorporated herein by
reference.
Tesla is registering an aggregate of 2,055,067 shares of Tesla Common
Stock on Teslas Registration Statement on Form S-3 (File No. 333-211437) (the
Registration Statement
), as supplemented by two prospectus supplements, each dated as of November 21, 2016, and to be filed with the SEC on
November 21, 2016 (collectively, the
Registrations
). One prospectus supplement relates to 2,009,288 shares of Tesla Common Stock issuable to holders of SolarCitys 2.75% Convertible Senior Notes due 2018, 1.625% Convertible
Senior Notes due 2019 and Zero Coupon Convertible Senior Notes due 2020 upon conversion thereof. The second prospectus supplement relates to 45,779 shares of Tesla Common Stock issuable in respect of certain options held by former employees of
SolarCity (or their respective legal successors) under the SolarCity Corporation 2012 Equity Incentive Plan and the SolarCity Corporation 2007 Stock Plan, which were assumed by Tesla in the Merger.
In connection with the Registrations, the legal opinions as to the legality of the Tesla Common Stock being registered are being filed as
Exhibit 5.1 and Exhibit 5.2 to this Current Report on Form 8-K and are incorporated herein and into the Registration Statement by reference.
On November 21, 2016, Tesla released a press statement announcing the completion of the Merger, which is included as Exhibit 99.1 hereto and
incorporated by reference herein.
Item 9.01.
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Financial Statements and Exhibits.
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(a)
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Financial Statements of Businesses Acquired.
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Tesla intends to file the financial statements
of SolarCity required by Item 9.01(a) as part of an amendment to this Current Report on Form 8-K or otherwise not later than 71 calendar days after the date of this Current Report on Form 8-K is required to be filed.
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(b)
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Pro Forma Financial Information.
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Tesla intends to file the pro forma financial information
required by Item 9.01(b) as part of an amendment to this Current Report on Form 8-K or otherwise not later than 71 calendar days after the date of this Current Report on Form 8-K is required to be filed.
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Exhibit
No.
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Exhibit Description
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2.1*
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Agreement and Plan of Merger, dated as of July 31, 2016, among Tesla Motors, Inc., SolarCity Corporation and D Subsidiary, Inc. (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Tesla with
the SEC on August 1, 2016).
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4.1
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of October 21, 2013, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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4.2
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of September 30, 2014, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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4.3
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of December 7, 2015, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, relating to the registration of up to 2,009,288 shares.
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5.2
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, relating the registration of up to 45,779 shares.
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23.1
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1 and Exhibit 5.2 hereto).
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.2 hereto).
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99.1
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Press Statement, released November 21, 2016.
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Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Tesla hereby undertakes to supplementally furnish copies of any of the omitted schedules upon request by the SEC.
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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 thereunto duly authorized.
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TESLA MOTORS, INC.
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Date: November 21, 2016
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By:
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/s/ Todd A. Maron
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Name:
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Todd A. Maron
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Title:
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General Counsel
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EXHIBIT INDEX
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Exhibit
No.
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Exhibit Description
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2.1*
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Agreement and Plan of Merger, dated as of July 31, 2016, among Tesla Motors, Inc., SolarCity Corporation and D Subsidiary, Inc. (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Tesla with
the SEC on August 1, 2016).
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4.1
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of October 21, 2013, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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4.2
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of September 30, 2014, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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4.3
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First Supplemental Indenture, dated as of November 21, 2016, between SolarCity Corporation and Wells Fargo Bank, National Association, as trustee to the Indenture, dated as of December 7, 2015, between SolarCity Corporation and
Wells Fargo Bank, National Association, as trustee.
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation relating to the registration of up to 2,009,288 shares.
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5.2
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation relating to the registration of up to 45,779 shares.
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23.1
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1 and Exhibit 5.2 hereto).
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.2 hereto).
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99.1
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Press Statement, released November 21, 2016.
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Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Tesla hereby undertakes to supplementally furnish copies of any of the omitted schedules upon request by the SEC.
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