As filed with the Securities and Exchange Commission on May 21, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Facebook, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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20-1665019
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
(650) 308-7300
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
2012 Equity Incentive Plan
2005 Stock Plan
2005 Officers’ Stock Plan
(Full Title of the Plans)
David A.
Ebersman
Chief Financial Officer
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
(650) 308-7300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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Gordon K. Davidson, Esq.
Jeffrey R. Vetter, Esq.
James D. Evans, Esq.
Fenwick & West LLP
801 California Street
Mountain View, California 94041
(650) 988-8500
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Theodore W. Ullyot, Esq.
David W. Kling, Esq.
Michael L. Johnson, Esq.
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
(650) 308-7300
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Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
To Be Registered
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Amount
To Be
Registered (1)
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
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Class A common stock, $0.000006 par value per share
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—2012 Equity Incentive Plan
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27,331,333(2)
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$35.64(8)
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$ 974,088,708
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$ 111,631
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—2005 Stock Plan
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517,684,471(3)
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—(9)
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—
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—
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—2005 Officers’ Stock Plan
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60,000,000(4)
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—(9)
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—
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—
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Class B common stock, $0.000006 par value per share
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—2005 Stock Plan (Options)
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114,505,983(5)
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$ 0.96(10)
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$ 109,925,744
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$ 12,597
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—2005 Stock Plan (RSUs)
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403,178,488(6)
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$35.64(8)
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$14,369,281,312
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$1,646,720
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—2005 Officers’ Stock Plan
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60,000,000(7)
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$ 0.06(11)
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$ 3,600,000
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$ 413
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TOTAL
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1,182,700,275
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$15,456,895,764
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$1,771,361
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s
Class A or Class B common stock that become issuable under the Company’s 2012 Equity Incentive Plan (the “2012 Plan”), the Company’s 2005 Stock Plan, as amended (the “2005 Stock Plan”), and the 2005 Officers’
Stock Plan, as amended (the “2005 Officers’ Plan”), by reason of any stock dividend, stock split, recapitalization or other similar transaction that increases the number of the outstanding shares of the Registrant’s Class A
or B common stock.
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(2)
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Shares of Class A common stock reserved for issuance under the 2012 Plan consist of (a) 25,000,000 shares of Class A common stock reserved for issuance
under the 2012 Plan plus (b) 2,331,333 shares of Class A common stock, which is equal to the number of shares of Class B common stock reserved but not issued or subject to outstanding awards under the 2005 Stock Plan. To the extent shares
issued under the 2005 Stock Plan are forfeited or repurchased at their original issue price or shares subject to outstanding awards under the 2005 Stock Plan cease to be subject to such awards or are used to pay the exercise price of an option or
withheld to satisfy the tax withholding obligations related to any award, the shares of Class B common stock subject to such awards instead will be available for future issuance as Class A common stock under the 2012 Plan.
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(3)
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Represents Class A common stock issuable upon conversion of Class B common stock underlying options and restricted stock units outstanding under the 2005 Stock
Plan as of May 18, 2012.
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(4)
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Represents Class A common stock issuable upon conversion of Class B common stock underlying an option outstanding under the 2005 Officers’ Plan as of May 18,
2012.
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(5)
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Represents shares of Class B common stock reserved for issuance pursuant to outstanding stock option awards under the 2005 Stock Plan as of May 18, 2012.
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(6)
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Represents shares of Class B common stock reserved for issuance pursuant to restricted stock units outstanding under the 2005 Stock Plan as of May 18, 2012.
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(7)
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Represents shares of Class B common stock reserved for issuance pursuant to an option outstanding under the 2005 Officers’ Plan as of May 18, 2012.
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(8)
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Estimated in accordance with Rules 457(c) and (h) solely for the purpose of calculating the registration fee based on the average of the high and low prices of the
Registrant’s Class A common stock as reported on the Nasdaq Global Select Market on May 21, 2012.
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(9)
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Pursuant to Rule 457(i), there is no fee associated with the registration of shares of Class A common stock issuable upon conversion of shares of any Class B
common stock (a convertible security) being registered under this Registration Statement because no additional consideration will be received in connection with the conversion of shares of Class B common stock.
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(10)
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Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The price of $0.96 per share represents the weighted average of the
exercise prices for outstanding options as of May 18, 2012 under the 2005 Stock Plan.
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(11)
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Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The price of $0.06 per share represents the exercise price of the
outstanding option under the 2005 Officer’s Plan.
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PART I
Information Required in the Section 10(a) Prospectus
The information
called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”) and the instructions to Form S-8. In accordance with the rules
and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
Information Required in the Registration Statement
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed by the Registrant with the Commission pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated
herein by reference:
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(a)
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the Registrant’s prospectus filed on May 18, 2012 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended
(File No. 333-179287), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed; and
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(b)
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the description of the Registrant’s Class A common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-35551) filed
with the Commission on May 14, 2012 under Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
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All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement.
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Item 4.
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Description of Securities
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See the description of the Registrant’s Class B common stock contained in the Registrant’s prospectus filed on May 18, 2012 pursuant to Rule 424(b) under the Securities Act relating to the
Registration Statement on Form S-1, as amended (File No. 333-179287).
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Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances
and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred,
arising under the Securities Act.
II-1
As permitted by the Delaware General Corporation Law, the Registrant’s restated
certificate of incorporation that will be in effect at the closing of the Registrant’s initial public offering contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as
a director, except liability for the following:
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any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or
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any transaction from which the director derived an improper personal benefit.
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As permitted by the Delaware General Corporation Law, the Registrant’s restated bylaws that will be in effect at the closing of the
Registrant’s initial public offering provide that:
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the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law,
subject to very limited exceptions;
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the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;
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the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the
fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and
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the rights conferred in the bylaws are not exclusive.
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The Registrant has entered, and intends to continue to enter, into separate indemnification agreements with its directors and executive officers to provide these directors and executive officers
additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s restated certificate of incorporation and restated bylaws and to provide additional procedural protections. At present, there is no
pending litigation or proceeding involving a director or executive officer of the Registrant regarding which indemnification is sought. The indemnification provisions in the Registrant’s restated certificate of incorporation, restated bylaws
and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive
officers for liabilities arising under the Securities Act.
The Registrant currently carries liability insurance for its
directors and officers.
See also the undertakings set out in response to Item 9 hereof.
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
II-2
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Filed
Herewith
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Form
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File No.
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Exhibit
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Filing Date
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4.1
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Restated Certificate of Incorporation of the Registrant.
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S-1
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333-179287
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3.3
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April 23, 2012
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4.2
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Amended and Restated Bylaws of the Registrant.
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S-1
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333-179287
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3.4
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April 23, 2012
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4.3
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Form of Registrant’s Class A common stock certificate.
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S-1
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333-179287
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4.1
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February 8, 2012
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4.4
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Form of Registrant’s Class B common stock certificate.
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X
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5.1
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Opinion of Fenwick & West LLP.
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X
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
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X
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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X
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24.1
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Power of Attorney (included on the signature page of this Form S-8).
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X
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99.1
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2012 Equity Incentive Plan.
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S-1
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333-179287
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10.4
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April 23, 2012
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99.2
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2005 Stock Plan, as amended, and forms of award agreements.
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S-1
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333-179287
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10.2
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February 8, 2012
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99.3
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2005 Officers’ Stock Plan, and amended and restated, notice of stock option grant and stock option agreement.
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S-1
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333-179287
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10.3
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February 8, 2012
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A. The undersigned
Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective Registration Statement.
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however,
that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
2. That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
II-3
3. To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on this 21st day of May 2012.
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FACEBOOK, INC.
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/S/ MARK ZUCKERBERG
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Mark Zuckerberg
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Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark Zuckerberg, David A. Ebersman and Theodore W. Ullyot, and each of them, as his true
and lawful attorney-in-fact and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with all exhibits
thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as
fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/S/ MARK
ZUCKERBERG
Mark Zuckerberg
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Chairman and Chief Executive Officer
(Principal Executive Officer)
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May 21, 2012
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/S/ DAVID A.
EBERSMAN
David A. Ebersman
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Chief Financial Officer
(Principal Financial Officer)
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May 21, 2012
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/S/ DAVID M.
SPILLANE
David M. Spillane
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Chief Accounting Officer
(Principal Accounting Officer)
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May 21, 2012
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/S/ MARC L.
ANDREESSEN
Marc L. Andreessen
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Director
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May 21, 2012
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/S/ ERSKINE B.
BOWLES
Erskine B. Bowles
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Director
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May 21, 2012
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/S/ JAMES W.
BREYER
James W. Breyer
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Director
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May 21, 2012
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/S/ DONALD E.
GRAHAM
Donald E. Graham
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Director
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May 21, 2012
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/S/ REED
HASTINGS
Reed Hastings
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Director
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May 21, 2012
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/S/ PETER A.
THIEL
Peter A. Thiel
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Director
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May 21, 2012
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II-5
EXHIBIT INDEX
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Filed
Herewith
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Form
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File No.
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Exhibit
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Filing Date
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4.1
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Restated Certificate of Incorporation of the Registrant.
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S-1
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333-179287
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3.3
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April 23, 2012
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4.2
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Amended and Restated Bylaws of the Registrant.
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S-1
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333-179287
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3.4
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April 23, 2012
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4.3
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Form of Registrant’s Class A common stock certificate.
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S-1
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333-179287
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4.1
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February 8, 2012
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4.4
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Form of Registrant’s Class B common stock certificate.
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X
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5.1
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Opinion of Fenwick & West LLP.
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X
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23.1
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
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X
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23.2
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Consent of Fenwick & West LLP (included in Exhibit 5.1).
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X
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24.1
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Power of Attorney (included on the signature page of this Form S-8).
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X
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99.1
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2012 Equity Incentive Plan.
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S-1
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333-179287
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10.4
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April 23, 2012
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99.2
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2005 Stock Plan, as amended, and forms of award agreements.
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S-1
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333-179287
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10.2
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February 8, 2012
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99.3
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2005 Officers’ Stock Plan, and amended and restated, notice of stock option grant and stock option agreement.
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S-1
|
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333-179287
|
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10.3
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February 8, 2012
|
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EXHIBIT 4.4
016570| 003590|127C|RESTRICTED||4|057-423 CLASS B COMMON STOCK PAR VALUE $0.000006
CLASS B COMMON STOCK THIS CERTIFICATE IS TRANSFERABLE IN CANTON, MA AND NEW YORK, NY Certificate Number ZQ 000000 Facebook FACEBOOK, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE ** Mr. Alexander David Sample **** Mr. Alexander David
Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander
David THIS CERTIFIES THAT Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample MR. **** Mr. Alexander SAMPLE David Sample **** Mr.
Alexander David &Sample MRS. **** Mr. Alexander David SAMPLE Sample **** Mr. Alexander David & Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr.
Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample
**** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander MR. David Sample SAMPLE **** Mr. Alexander David Sample & **** Mr. Alexander MRS. David Sample **** SAMPLE Mr. Alexander David
Sample **** Mr. Alexander SEE REVERSE FOR CERTAIN DEFINITIONS David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr.
Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample
**** Mr. Sample **** Mr. Sample is the owner of **000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares***
*000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****
000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0
00000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00 ***ZERO HUNDRED THOUSAND
0000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000
000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****0000
00**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****00000
0**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000
**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000* ZERO HUNDRED AND ZERO***
*Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**
Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**Shares****000000**S Shares * * 0 0 0 0 0 0 * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * 0 0 0 0 0 0 * * * * * * * * * 0
0 0 0 0 0 * * * * * * * * * 0 0 0 0 0 0 * * FULLY-PAID AND NON-ASSESSABLE SHARES OF THE CLASS B COMMON STOCK OF Facebook, Inc. (hereinafter called the “Company”), transferable on the books of the Company in person or by duly authorized
attorney, upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby, are issued and shall be held subject to all of the provisions of the Certificate of Incorporation, as amended, and the Bylaws, as
amended, of the Company (copies of which are on file with the Company and with the Transfer Agent), to all of which each holder, by acceptance hereof, assents. This Certificate is not valid unless countersigned and registered by the Transfer Agent
and Registrar. Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers. President Secretary DATED <<Month Day, Year>> COUNTERSIGNED AND REGISTERED: COMPUTERSHARE TRUST COMPANY, N.A. TRANSFER
AGENT AND REGISTRAR, By AUTHORIZED SIGNATURE facebook PO BOX 43004, Providence, RI 02940-3004 MR A SAMPLE DESIGNATION (IF ANY) ADD 1 ADD 2 ADD 3 ADD 4 CUSIP XXXXXX XX X Holder ID XXXXXXXXXX Insurance Value 00.1,000,000 Number of Shares 123456 DTC
12345678901234512345678 Certificate Numbers Num/No Denom. Total. 1234567890/1234567890 111 1234567890/1234567890 222 1234567890/1234567890 333 1234567890/1234567890 444 1234567890/1234567890 555 1234567890/1234567890 666 Total Transaction 7
FACEBOOK, INC. The corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. THE COMPANY
MAY REQUIRE THE OWNER OF A LOST OR DESTROYED STOCK CERTIFICATE, OR HIS LEGAL REPRESENTATIVES, TO GIVE THE COMPANY A BOND TO INDEMNIFY IT AND ITS TRANSFER AGENTS AND REGISTRARS AGAINST ANY CLAIM THAT MAY BE MADE AGAINST THEM ON ACCOUNT OF THE ALLEGED
LOSS OR DESTRUCTION OF ANY SUCH CERTIFICATE. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -
as tenants in common UNIF GIFT MIN ACT -Custodian (Cust) (Minor) TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act (State) JT TEN - as joint tenants with right of survivorship UNIF TRF MIN ACT -Custodian (until age) and not as
tenants in common (Cust) under Uniform Transfers to Minors Act (Minor) (State) Additional abbreviations may also be used though not in the above list. PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE For value received, hereby
sell, assign and transfer unto (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE) __ Shares of the Class B Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney to transfer the said stock on the books of the within-named Company with full power of substitution in the premises. Dated: 20THE SIGNATURE(S) Signature(s) SHOULD BE Guaranteed: GUARANTEED BY Medallion AN ELIGIBLE Guarantee GUARANTOR Stamp
INSTITUTION (Banks, SIGNATURE Stockbrokers, GUARANTEE Savings and Loan MEDALLION Associations PROGRAM, and Credit PURSUANT Unions) WITH TO S. E. MEMBERSHIP C. RULE 17Ad-15. IN AN APPROVED Signature: Signature: Notice: The signature to this
assignment must correspond with the name as written upon the face of the certificate, in every particular, without alteration or enlargement, or any change whatever. The IRS requires that we report the cost basis of certain shares acquired after
January 1, 2011. If your shares were covered by the legislation and you have sold or transferred the shares and requested a specific cost basis calculation method, we have processed as requested. If you did not specify a cost basis calculation
method, we have defaulted to the first in, first out (FIFO) method. Please visit our website or consult your tax advisor if you need additional information about cost basis. If you do not keep in contact with us or do not have any activity in your
account for the time periods specified by state law, your property could become subject to state unclaimed property laws and transferred to the appropriate state.
EXHIBIT 5.1
May 21, 2012
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 (the “
Registration Statement
”) to be
filed by Facebook, Inc., a Delaware corporation (the “
Company
”), with the Securities and Exchange Commission (the “
Commission
”) on or about May 21, 2012 in connection with the registration under
the Securities Act of 1933, as amended (the “
Securities Act
”), of (i) an aggregate of 605,015,804 shares of the Company’s Class A Common Stock, $0.000006 par value per share (the “
Class A Common
Stock
”), that are subject to issuance by the Company (a) upon the exercise or settlement of awards granted or to be granted under the Company’s 2012 Equity Incentive Plan (the “
2012 Plan
”),
(b) pursuant to the conversion of shares of the Company’s Class B common stock, $0.000006 par value per share (the “
Class B Common Stock
”), underlying options and restricted stock units outstanding under the
Company’s 2005 Stock Plan (the “
2005 Stock Plan
”) and (c) pursuant to the conversion of shares of the Class B Common Stock underlying an option outstanding under the Company’s 2005 Officers’ Stock Plan
(the “
2005 Officers’ Plan
”); and (ii) an aggregate of 577,684,471 shares of the Class B Common Stock (together with the Class A Common Stock described under clause (i) above, the
“
Stock
”), that are subject to issuance by the Company (a) upon the exercise of stock options and settlement of restricted stock units granted under the 2005 Stock Plan and (b) upon the exercise of an option
outstanding under the 2005 Officers’ Plan. The 2012 Plan, the 2005 Stock Plan and the 2005 Officers’ Plan are collectively referred to in this letter as the “
Plans
.”
In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth
herein, which included examination of the following:
|
|
(1)
|
The Company’s Eleventh Amended and Restated Certificate of Incorporation, certified by the Delaware Secretary of State on October 1, 2010 (the
“
Current Certificate”
) and the Restated Certificate of Incorporation that the Company intends to file and that will be effective upon the consummation of the Company’s initial public offering (the
“Post-Effective Restated Certificate
”);
|
May 21, 2012
Page
2
|
|
(2)
|
The Company’s Bylaws, as certified to us as of the date hereof by an officer of the Company as being complete and in full force and effect as of the date hereof
(the “
Current Bylaws
”) and the Amended and Restated Bylaws that the Company has adopted in connection with, and that will become effective upon, the consummation of the Company’s initial public offering (the
“Post-Effective Restated Bylaws
”);
|
|
|
(3)
|
The Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference;
|
|
|
(4)
|
The Prospectuses prepared in connection with the Registration Statement (the “
Prospectuses
”);
|
|
|
(5)
|
the Plans and related forms of Plan agreements;
|
|
|
(6)
|
Minutes of meetings and actions by written consent of the Company’s Board of Directors (the “
Board
”) and the Company’s stockholders
(the “
Stockholders
”) provided to us by the Company relating to the adoption, approval, authorization and/or ratification of (i) the Current Certificate, (ii) the Post-Effective Restated Certificate, (iii) the
Current Bylaws, (iv) the Post-Effective Restated Bylaws, (v) the Plans and (vi) the filing of the Registration Statement, the reservation of the Stock for sale and issuance pursuant to the Plans and the sale and issuance of the Stock
pursuant to the Plans.
|
|
|
(7)
|
The stock records of the Company that the Company has provided to us (consisting of a list of stockholders, optionholders and restricted stock unit holders that was
prepared by the Company as of May 18, 2012, respecting the Company’s capital stock and any rights to purchase capital stock and verifying the number of such issued and outstanding securities);
|
|
|
(8)
|
A Certificate of Good Standing issued by the Secretary of State of the State of Delaware dated of even date herewith, stating that the Company is in good standing and
has a legal corporate existence under the laws of the State of Delaware (the “
Certificate of Good Standing
”); and
|
|
|
(9)
|
A management certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the “
Management
Certificate
”).
|
In our examination of documents for purposes of this opinion, we have assumed, and
express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities
executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us, and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are
prerequisites to the effectiveness thereof.
May 21, 2012
Page
3
The Company’s capital stock is uncertificated. We assume that issued Stock
will not be reissued by the Company in uncertificated form until any previously issued stock certificate representing such issued Stock has been surrendered to the Company in accordance with Section 158 of the Delaware General Corporation Law,
and that the Company will properly register the transfer of the Stock to the purchasers of such Stock on the Company’s record of uncertificated securities.
We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any
jurisdiction other than, the existing laws of the United States of America, the State of California and the existing Delaware General Corporation Law and reported judicial decisions relating thereto.
In connection with our opinions expressed below, we have assumed that, at or prior to the time of the issuance, if not already
outstanding, and the delivery of any shares of Stock, the Registration Statement will have been declared effective under the Securities Act, that the shares of Stock will have been registered under the Securities Act pursuant to the Registration
Statement and that such registration will not have been modified or rescinded, and that there will not have occurred any change in law affecting the validity of the issuance of such shares of Stock.
With respect to our opinion expressed in paragraph (1) below as to the valid existence and good standing of the Company under the
laws of the State of Delaware, we have relied solely upon the Certificate of Good Standing and representations made to us by the Company in the Management Certificate.
In accordance with Section 95 of the American Law Institute’s Restatement (Third) of the Law Governing Lawyers (2000), this opinion letter is to be interpreted in accordance with customary
practices of lawyers rendering opinions to third parties in connection with the filing of a registration statement with the Commission of the type described herein.
Based upon the foregoing, it is our opinion that:
(1) The Company is a
corporation validly existing, in good standing, under the laws of the State of Delaware; and
(2) 1,182,700,275 shares of
Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards granted or to be granted under the 2012 Plan, (b) pursuant to the conversion of shares of the Class B Common Stock underlying options and
restricted stock units outstanding under the 2005 Stock Plan, (c) pursuant to the conversion of shares of the Class B Common Stock underlying an option outstanding under the Company’s 2005 Officers’ Plan, (d) upon the exercise of
stock options and settlement of restricted stock
May 21, 2012
Page
4
units granted under the 2005 Stock Plan and (e) upon the exercise of an option outstanding under the 2005 Officers’ Plan, when issued, sold and delivered in accordance with the
applicable plan and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and relevant Prospectus, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in
the Registration Statement, the Prospectuses constituting a part thereof and any amendments thereto. In rendering the opinions set forth above, we are opining only as to the specific legal issues expressly set forth therein, and no opinion shall be
inferred as to any other matter or matters.
This opinion is intended solely for use in connection with issuance and sale of
shares of Stock subject to the Registration Statement and is not to be relied upon for any other purpose. This opinion is rendered as of the date first written above and based solely on our understanding of facts in existence as of such date after
the aforementioned examination. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify any of the
opinions expressed herein.
Very truly yours,
/s/ Fenwick & West LLP