Facebook Inc (Form: S-8, Received: 02/01/2013 17:03:05)

Large accelerated filer

Accelerated filer

Non-accelerated filer

x (Do not check if a smaller reporting company)

Smaller reporting company

As filed with the Securities and Exchange Commission on February 1, 2013

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)

Delaware

20-1665019

(State or Other Jurisdiction

of Incorporation or Organization)

(I.R.S. Employer

Identification No.)

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

(Full Title of the Plan)

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:

Jeffrey R. Vetter, Esq.

James D. Evans, Esq.

Fenwick & West LLP

801 California Street

Mountain View, California 94041

(650) 988-8500

Theodore W. Ullyot, Esq.

David W. Kling, Esq.

Michael L. Johnson, Esq.

Facebook, Inc.

1601 Willow Road

Menlo Park, California 94025

(650) 308-7300

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):

CALCULATION OF REGISTRATION FEE



Title of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Class A common stock, $0.000006 par value per share
—2012 Equity Incentive Plan	25,385,520(2)	$30.105(3)	$764,231,079.60	$104,241.12
TOTAL	25,385,520		$764,231,079.60	$104,241.12

(1)

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 common stock that become issuable in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Class A common stock.

(2)

Represents additional shares of Class A common stock that are reserved for issuance under the Registrant’s 2012 Equity Incentive Plan (the “2012 Plan”) and that are being registered in order to correct an inadvertent omission with respect to the aggregate number of shares of the Registrant’s Class A common stock reserved for issuance under the 2012 Plan as set forth in the Fee Table (and the footnotes thereto) on the Form S-8 (File No. 333-181566) filed by the Registrant with the Securities and Exchange Commission on May 21, 2012.

(3)	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 January 31, 2013.

REGISTRATION OF ADDITIONAL SHARES

PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, Facebook, Inc., a Delaware corporation (the “Registrant”), is filing this Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register 25,385,520 additional shares of Class A common stock that are reserved for issuance under the Registrant’s 2012 Equity Incentive Plan (the “2012 Plan”) in order to correct an inadvertent omission with respect to the aggregate number of shares of the Registrant’s Class A common stock reserved for issuance under the 2012 Plan as set forth in the Fee Table (and the footnotes thereto) on the Form S-8 (File No. 333-181566) filed by the Registrant with the Commission on May 21, 2012 (the “May 2012 S-8”). The Registrant has not increased its previously disclosed available share reserve under the 2012 Plan. This Registration Statement hereby incorporates by reference the contents of the May 2012 S-8. In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

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PART II

Information Required in the Registration Statement

Item 3. Incorporation of Documents by Reference .

The following documents filed by the Registrant with the Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

(a)

the Registrant’s Annual Report on Form 10-K filed with the Commission on February 1, 2013;

(b)

the Registrant’s Registration Statement on Form S-8 (File No. 333-181566) filed with the Commission on May 21, 2012; and

(c)

the description of the Registrant’s Class A common stock contained in the Registrant’s Registration Statement on Form 8-A (Registration No. 001-35551) filed with the Commission on May 14, 2012, including any amendments or reports filed for the purpose of updating such description.

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.

Item 5. Interests of Named Experts and Counsel .

As of the date of this Registration Statement, attorneys of Fenwick & West LLP beneficially own an aggregate of approximately 7,277 shares of the Registrant’s capital stock.

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Item 8. Exhibits .

Exhibit

Number

Exhibit Description

Incorporated by Reference

Filed
Herewith

Form

File No.

Exhibit

Filing Date

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

000-35551

3.1

July 31, 2012

4.2

Amended and Restated Bylaws of the Registrant.

10-Q

000-35551

3.2

July 31, 2012

4.3

Form of Registrant’s Class A common stock certificate.

S-1

333-179287

4.1

February 8, 2012

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.

23.2

Consent of Fenwick & West LLP (contained in Exhibit 5.1).

24.1

Power of Attorney (included on the signature page of this Registration Statement).

99.1

2012 Equity Incentive Plan, as amended.

10-K

000-35551

10.4(A)

February 1, 2013

99.2

2012 Equity Incentive Plan forms of award agreements.

10-Q

000-35551

10.2

July 31, 2012

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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 1st day of February 2013.


FACEBOOK, INC.

By:		/ S / MARK ZUCKERBERG
		Mark Zuckerberg Chairman and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of the Registrant do hereby constitute and appoint David A. Ebersman, Chief Financial Officer, and Theodore W. Ullyot, Vice President, General Counsel and Secretary, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.

IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.

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.


Signature	Title	Date

/S/ MARK ZUCKERBERG Mark Zuckerberg	Chairman and Chief Executive Officer (Principal Executive Officer)	February 1, 2013

/S/ DAVID A. EBERSMAN David A. Ebersman	Chief Financial Officer (Principal Financial Officer)	February 1, 2013

/S/ DAVID M. SPILLANE David M. Spillane	Chief Accounting Officer (Principal Accounting Officer)	February 1, 2013

/S/ MARC L. ANDREESSEN Marc L. Andreessen	Director	February 1, 2013

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/S/ ERSKINE B. BOWLES Erskine B. Bowles	Director	February 1, 2013

/S/ JAMES W. BREYER James W. Breyer	Director	February 1, 2013

/S/ DONALD E. GRAHAM Donald E. Graham	Director	February 1, 2013

/S/ REED HASTINGS Reed Hastings	Director	February 1, 2013

/S/ SHERYL K. SANDBERG Sheryl K. Sandberg	Director	February 1, 2013

/S/ PETER A. THIEL Peter A. Thiel	Director	February 1, 2013

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EXHIBIT INDEX

Exhibit

Number

Exhibit Description

Incorporated by Reference

Filed
Herewith

Form

File No.

Exhibit

Filing Date

4.1

Restated Certificate of Incorporation of the Registrant.

10-Q

000-35551

3.1

July 31, 2012

4.2

Amended and Restated Bylaws of the Registrant.

10-Q

000-35551

3.2

July 31, 2012

4.3

Form of Registrant’s Class A common stock certificate.

S-1

333-179287

4.1

February 8, 2012

5.1

Opinion of Fenwick & West LLP.

23.1

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.

23.2

Consent of Fenwick & West LLP (contained in Exhibit 5.1).

24.1

Power of Attorney (included on the signature page of this Registration Statement).

99.1

2012 Equity Incentive Plan, as amended.

10-K

000-35551

10.4(A)

February 1, 2013

99.2

2012 Equity Incentive Plan forms of award agreements.

10-Q

000-35551

10.2

July 31, 2012

EXHIBIT 5.1

LOGO

February 1, 2013

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 February 1, 2013 in connection with the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of an aggregate of 25,385,520 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 upon the exercise or settlement of awards granted or to be granted under the Company’s 2012 Equity Incentive Plan, as amended (the “ 2012 Plan ”). 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 Restated Certificate of Incorporation, certified by the Delaware Secretary of State on May 22, 2012 (the “ Certificate ”);

(2)

the Company’s Amended and Restated 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 “ Bylaws ”);

(3)

the Registration Statement, together with the exhibits filed as a part thereof or incorporated therein by reference;

(4)

the prospectus prepared in connection with the Registration Statement (the “ Prospectus ”);

(5)

the Company’s 2005 Stock Plan, as amended (the “ 2005 Plan ”), and related forms of 2005 Plan agreements;

(6)

the 2012 Plan and related forms of 2012 Plan agreements;

(7)

minutes of meetings and actions by written consent of the Company’s Board of Directors (the “ Board ”), the Compensation Committee of the Board and the Company’s stockholders provided to us by the Company relating to the adoption,

February 1, 2013

Page 2

approval, authorization and/or ratification of (i) the Certificate, (ii) the Bylaws, (iii) the 2005 Plan, (iv) the 2012 Plan and (v) the filing of the Registration Statement, the reservation of the Class A Common Stock for sale and issuance pursuant to the 2012 Plan, and the sale and issuance of the Class A Common Stock pursuant to the 2012 Plan;

(8)

the stock records of the Company that the Company has provided to us (consisting of a certificate from the Company’s transfer agent, Computershare Trust Company, N.A., dated February 1, 2013, verifying the number of the Company’s issued and outstanding shares of capital stock as of January 31, 2013, and a statement prepared by the Company as to the number of issued and outstanding restricted stock units and any additional shares of capital stock reserved for future issuance in connection with the 2012 Plan as of January 31, 2013);

(9)

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

(10)

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 genuineness of all signatures on original documents, 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.

The Company’s capital stock is uncertificated. We assume that issued Class A Common Stock will not be reissued by the Company in uncertificated form until any previously issued stock certificate representing such issued Class A Common 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 Class A Common Stock to the purchasers of such Class A Common Stock on the Company’s record of uncertificated securities.

As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.

February 1, 2013

Page 3

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, of the State of California and of the 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 Class A Common Stock, the Registration Statement will have been declared effective under the Securities Act, that the shares of Class A Common 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 Class A Common 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) The 25,385,520 shares of Class A Common Stock to be registered under the Registration Statement that may be issued and sold by the Company upon the exercise or settlement of awards granted or to be granted under the 2012 Plan, when issued, sold and delivered in accordance with the 2012 Plan and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and the 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 Prospectus 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.

[Concluding Paragraph Follows on Next Page]

February 1, 2013

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This opinion is intended solely for use in connection with issuance and sale of shares of Class A Common 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

Exhibit 23.1

CONSENT OF ERNST & YOUNG LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2012 Equity Incentive Plan of Facebook, Inc. of our report dated February 1, 2013, with respect to the consolidated financial statements of Facebook, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2012, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Francisco, California

February 1, 2013