As filed with the Securities and Exchange Commission on July 26, 2018
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
BLOOM ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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77-0565408
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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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Bloom Energy Corporation
1299 Orleans Drive
Sunnyvale, California 94089
(Address of Principal Executive Offices) (Zip Code)
2002 Equity Incentive Plan
2012 Equity Incentive Plan
2018 Equity Incentive Plan
2018 Employee Stock Purchase Plan
(Full title of the plans)
KR Sridhar
Chief
Executive Officer
Bloom Energy Corporation
1299 Orleans Drive
Sunnyvale, California 94089
(408)
543-1500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please send copies of all communications to:
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Gordon K. Davidson, Esq.
Sayre E. Stevick, Esq.
Jeffrey R. Vetter, Esq.
Fenwick & West LLP
Silicon Valley Center
801
California Street
Mountain View, California 94041
(650)
988-8500
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Shawn M. Soderberg, Esq.
Bloom Energy Corporation
1299 Orleans Drive
Sunnyvale, California 94089
(408)
543-1500
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule
12b-2
of the Exchange Act.
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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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☒ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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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, $0.0001 par value per
share
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- To be issued under the 2018 Equity Incentive Plan
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22,267,475
(2)
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$15.00
(3)
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$334,012,125
(3)
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$41,585
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- To be issued under the 2018 Employee Stock Purchase
Plan
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3,333,333
(4)
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12.75
(5)
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42,499,996
(5)
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5,292
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- Outstanding under the 2012 Equity Incentive Plan
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24,075,710
(6)
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—
(7)
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—
(7)
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—
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- Outstanding under the 2002 Equity Incentive Plan
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2,555,175
(8)
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—
(7)
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—
(7)
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—
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Class B common stock, $0.0001 par value per
share
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- Outstanding under the 2012 Equity Incentive Plan
(Options)
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8,468,709
(9)
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30.84
(10)
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261,174,986
(10)
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32,517
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- Outstanding under the 2012 Equity Incentive Plan
(RSUs)
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15,607,001
(11)
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15.00
(3)
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234,105,015
(3)
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29,147
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- Outstanding under the 2002 Equity Incentive Plan
(Options)
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2,555,175
(12)
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$19.05
(13)
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48,676,084
(13)
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6,061
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TOTAL
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78,862,578
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$920,468,206
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$114,602
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “
Securities Act
”), this Registration Statement shall also cover any additional shares of the Registrant’s
Class A common stock or Class B 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 or Class B common stock.
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(2)
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Shares of Class A common stock reserved for issuance under the 2018 Equity Incentive Plan (“
2018 Plan
”) consists of (a) 13,333,333 shares of Class A common stock reserved for issuance
under the 2018 Plan and (b) 8,934,142 shares of Class A common stock previously reserved but unissued under the 2012 Equity Incentive Plan (“
2012 Plan
”), that are now available for issuance under the 2018 Plan. To the
extent outstanding awards under the 2012 Plan and 2002 Equity Incentive Plan, as amended (“
2002 Plan
”) are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2012 Plan or 2002
Plan, 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 2018 Plan. See footnote 6 below.
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(3)
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Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the initial public offering price per share of the Registrant’s Class A common stock as set forth in
the Registrant’s prospectus filed with the Securities and Exchange Commission on or around July 25, 2018 pursuant to Rule 424(b) under the Securities Act.
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(4)
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Represents shares reserved for issuance under the 2018 Employee Stock Purchase Plan (“
Purchase Plan
”) as of the date of this Registration Statement.
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(5)
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Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the initial public offering price per share of the Registrant’s Class A common stock multiplied by
85%, which is the percentage of the price per share applicable to purchases under the Purchase Plan.
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(6)
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Represents shares of Registrant’s Class A common stock reserved for issuance upon conversion of Class B common stock underlying stock options and restricted stock units outstanding under the 2012 Plan as
of the date of this Registration Statement. Any shares of Class B common stock that are subject to awards under the 2012 Plan that are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2012 Plan,
instead will be available for issuance as Class A common stock under the 2018 Plan. See footnote 2 above.
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(7)
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Pursuant to Rule 457(i) under the Securities Act, there is no fee associated with the registration of shares of Class A common stock issuable upon conversion of the 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 Class B common stock.
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(8)
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Represents shares of Registrant’s Class A common stock reserved for issuance upon conversion of Class B common stock underlying stock options outstanding under the 2002 Plan as of the date of this
Registration Statement. Any shares of Class B common stock that are subject to awards under the 2002 Plan that are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2002 Plan, instead will be
available for issuance as Class A common stock under the 2018 Plan. See footnote 2 above.
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(9)
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Represents shares of Class B common stock reserved for issuance pursuant to stock options outstanding under the 2012 Plan as of the date of this Registration Statement. Any shares of Class B common stock that
are subject to stock options under the 2012 Plan that are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2012 Plan will be available for issuance as Class A common stock under the 2018 Plan.
See footnote 2 above.
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(10)
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Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price for stock options outstanding under the 2012 Plan granted by the Registrant
as of the date of this Registration Statement.
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(11)
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Represents shares of Class B common stock reserved for issuance pursuant to restricted stock units outstanding under the 2012 Plan as of the date of this Registration Statement. Any shares of Class B common
stock that are subject to restricted stock units under the 2012 Plan that are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2012 Plan will be available for issuance as Class A common stock
under the 2018 Plan. See footnote 2 above.
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(12)
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Represents shares of Class B common stock reserved for issuance pursuant to stock options outstanding under the 2002 Plan as of the date of this Registration Statement. Any shares of Class B common stock that
are subject to stock options under the 2002 Plan that are forfeited, lapse unexercised, or would otherwise have been returned to the share reserve under the 2002 Plan will be available for issuance as Class A common stock under the 2018 Plan.
See footnote 2 above.
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(13)
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Calculated solely for the purposes of this offering under Rule 457(h) of the Securities Act on the basis of the weighted average exercise price for stock options outstanding under the 2002 Plan granted by the Registrant
as of the date of this Registration Statement.
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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 on Form
S-8
(the “
Registration Statement
”) and has been or will be sent or given to participating service providers 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 under
the Securities Act.
PART II
Information Required in the Registration Statement
Item 3.
Incorporation of Documents by Reference
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The following documents filed by Bloom Energy Corporation (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 July 26, 2018 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form
S-1,
as amended
(Registration No. 333-225571), 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
(Registration
No. 001-38598)
filed with the Commission on July 18, 2018 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.
Item 4.
Description of Securities
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Not applicable.
Item 5.
Interests of Named Experts
and Counsel
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Not applicable.
Item 6.
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.
As
permitted by the Delaware General Corporation Law, the Registrant’s restated certificate of incorporation to be effective immediately prior to the completion 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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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of
the Delaware General Corporation Law; 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 amended and restated bylaws to be effective immediately prior to the completion of
the Registrant’s initial public offering, provide that:
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the Registrant is required to indemnify its directors and 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 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 amended and restated bylaws are not exclusive.
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The Registrant has entered into indemnification agreements with each of its current 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 amended and restated bylaws and to provide additional procedural protections. The
indemnification provisions in the Registrant’s restated certificate of incorporation, amended and restated bylaws, and the indemnification agreements 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.
Reference is also made to the Underwriting Agreement filed with the Form
S-1
for the Registrant’s initial public
offering, which provides for the indemnification of officers, directors, and controlling persons of the Registrant against certain liabilities.
See also
the undertakings set out in response to Item 9 of this Registration Statement.
Item 7.
Exemption from Registration Claimed
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Not applicable.
Item 8.
Exhibits
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The following exhibits are filed herewith:
Item 9.
Undertakings
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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 this 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; and
(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 clauses (A)(1)(i) and (A)(1)(ii) above shall not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic 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 this 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment any of the securities being registered that 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 into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, 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 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 hereby, 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.
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 Sunnyvale, State of California, on
this 26th day of July, 2018.
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BLOOM ENERGY CORPORATION
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By:
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/s/ KR Sridhar
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KR Sridhar
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Founder, President, Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints KR Sridhar and Randy Furr, and each of
them, as his or her true and lawful
attorney-in-fact
and agent with the full power of substitution, for him or her in any and all capacities, to sign any and all
amendments to this registration statement (including post-effective amendments to this Registration Statement on Form
S-8),
and to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact
and agents, and each of them 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 or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact
and agents, or his or her substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the
Registrant 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/ KR Sridhar
KR Sridhar
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Founder, President, Chief Executive Officer and Director
(Principal Executive Officer)
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July 26, 2018
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/s/ Randy Furr
Randy Furr
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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July 26, 2018
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/s/ Kelly A. Ayotte
Kelly A. Ayotte
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Director
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July 26, 2018
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/s/ Mary K. Bush
Mary K. Bush
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Director
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July 26, 2018
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/s/ John Doerr
John Doerr
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Director
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July 26, 2018
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/s/ Colin L. Powell
Colin L. Powell
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Director
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July 26, 2018
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Signature
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Title
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Date
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/s/ Scott Sandell
Scott Sandell
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Director
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July 26, 2018
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/s/ Peter Teti
Peter Teti
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Director
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July 26, 2018
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/s/ Eddy Zervigon
Eddy Zervigon
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Director
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July 26, 2018
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Exhibit 5.1
July 26, 2018
Bloom Energy Corporation
1299 Orleans Drive
Sunnyvale, California 94089
Ladies and Gentlemen:
As counsel to Bloom Energy Corporation, a Delaware corporation (the “
Company
”), we have examined the Registration Statement on Form
S-8
to be filed by the Company with the Securities and Exchange Commission (the “
Commission
”) on or about July 25, 2018 (the “
Registration Statement
”) in
connection with the registration under the Securities Act of 1933, as amended (the “
Securities Act
”), of: (i) an aggregate of 52,231,693 shares of the Company’s Class A Common Stock, $0.0001 par value per share
(the “
Class
A Common Stock
”), subject to issuance by the Company (a) upon the exercise or settlement of awards to be granted under the Company’s 2018 Equity Incentive Plan (the
“
2018 Plan
”), (b) pursuant to the conversion of shares of the Company’s Class B Common Stock, $0.0001 par value per share (the “
Class
B Common Stock
”), that
are subject to issuance by the Company upon the exercise or settlement of awards granted under the Company’s 2012 Equity Incentive Plan (the “
2012 Plan
”), (c) pursuant to the conversion of shares of the Company’s
Class B Common Stock, $0.0001 par value per share (the “
Class
B Common Stock
”), that are subject to issuance by the Company upon the exercise or settlement of awards granted under the
Company’s 2002 Equity Incentive Plan, as amended (the “
2002 Plan
”), and (d) pursuant to purchase rights to acquire shares of Class A Common Stock to be granted under the Company’s 2018 Employee Stock
Purchase Plan (the “
Purchase Plan
”); (ii) an aggregate of 26,630,885 shares of Class B Common Stock that are subject to issuance by the Company (a) upon the exercise or settlement of awards granted under the 2012
Plan, and (b) upon the exercise or settlement of awards granted under the 2002 Plan.
The 52,231,693 shares of Class A Common Stock described in
clause (i) of the preceding paragraph and the 26,630,885 shares of Class B Common Stock described in clause (ii) of the preceding paragraph are collectively referred to herein as the “
Shares
” and the 2018 Plan,
the 2012 Plan, the 2002 Plan, and the Purchase Plan are collectively referred to in this letter as the “
Plans
.
” At your request, we are providing this letter to express our opinion on the matters set forth below in
this letter (“
our opinion
”).
In connection with our opinion expressed below, we have examined originals or copies of the
Company’s certificate of incorporation and bylaws, the Plans, certain corporate proceedings of the Company’s board of directors and stockholders relating to the Registration Statement, the Plans and the Company’s current certificate
of incorporation and bylaws, and such other agreements, documents, certificates and statements of the Company and public or governmental officials, as we have deemed advisable, and have examined such questions of law as we have considered necessary.
We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures on documents submitted to us, the conformity to originals of all documents submitted to us as copies, and the absence of any
undisclosed termination, waiver or amendment to any document reviewed by us. In giving our opinion, we have also relied upon a good standing certificate regarding the Company issued by the Delaware Secretary of State and representations made to us
by the Company, including representations that the Company has available a sufficient number of authorized shares of Class A Common Stock and Class B Common Stock that are not currently outstanding or reserved for issuance under other
outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.
We render
this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law.
Bloom Energy Corporation
July 26, 2018
Page
2
Based upon, and subject to, the foregoing, it is our opinion that when the 52,231,693 shares of Class A
Common Stock that may be issued and sold by the Company (a) upon the exercise or settlement of awards to be granted under the 2018 Plan, (b) pursuant to the conversion of the shares of Class B Common Stock that are subject to issuance
by the Company upon the exercise or settlement of awards granted under the 2012 Plan, (c) pursuant to purchase rights to be granted under the Purchase Plan, and (d) pursuant to the conversion of the shares of Class B Common Stock that
are subject to issuance by the Company upon the exercise or settlement of awards granted under the 2002 Plan, and the 26,630,885 shares of Class B Common Stock that are subject to issuance by the Company (x) upon the exercise or settlement
of awards granted under the 2012 Plan and (y) upon the exercise or settlement of awards granted under the 2002 Plan, have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of
consideration not less than the par value per Share) in accordance with the terms (including payment provisions) of the applicable Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on
behalf of the holders thereof, such Shares will be validly issued, fully paid and
non-assessable.
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. We do not thereby admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. This opinion is intended solely for use in connection with issuance and sale
of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose. In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to
any other matter or matters. This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter. 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.
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Very truly yours,
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/s/ Fenwick & West LLP
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FENWICK & WEST LLP
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