As filed with the Securities and Exchange Commission on February 1, 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
______________________
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.)
|
1601 Willow Road
Menlo Park, California 94025
(Address of Principal Executive Offices) (Zip Code)
|
|
|
|
|
2012 Equity Incentive Plan
|
(Full Title of the Plans)
______________________
David M. Wehner
Chief Financial Officer
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
(Name and Address of Agent For Service)
(650) 543-4800
(Telephone Number, including area code, of agent for service)
______________________
Copies to:
|
|
|
|
|
|
|
Jeffrey R. Vetter, Esq.
Fenwick & West LLP
801 California Street
Mountain View, California 94041
(650) 988-8500
|
|
Colin S. Stretch, Esq.
David W. Kling, Esq.
Michael L. Johnson, Esq.
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
(650) 543-4800
|
______________________
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 definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|
|
|
|
|
|
|
|
Large accelerated filer
|
x
|
Accelerated filer
|
¨
|
|
Non-accelerated filer
|
¨
(Do not check if a smaller reporting company)
|
Smaller reporting company
|
¨
|
|
|
|
Emerging growth company
|
¨
|
|
|
|
|
|
|
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
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
|
|
|
|
Reserved for future issuance under the 2012 Equity Incentive Plan
|
42,000,000
(2)
|
$185.01
(3)
|
$
|
7,770,420,000
|
|
$
|
967,417
|
|
|
TOTAL
|
42,000,000
|
|
$
|
7,770,420,000
|
|
$
|
967,417
|
|
|
|
|
|
(1)
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (“
Securities Act
”), 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 that results in an increase in the number of the outstanding shares of the Registrant’s Class A common stock.
|
|
|
|
|
(2)
|
Represents additional shares of the Registrant’s Class A common stock reserved for issuance under the Registrant’s 2012 Equity Incentive Plan (the “
2012 Plan
”) pursuant to the provisions of the 2012 Plan that provide for an automatic annual increase in the number of shares reserved for issuance under the 2012 Plan.
|
|
|
|
|
(3)
|
Estimated in accordance with Rules 457(c) and (h) of the Securities Act 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 30, 2018.
|
REGISTRATION OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
Pursuant to General Instruction E of Form S-8, Facebook, Inc. (“
Registrant
”) is filing this Registration Statement on Form S-8 with the U.S. Securities and Exchange Commission (the “
Commission
”) to register 42,000,000 additional shares of the Registrant’s Class A common stock for issuance under the Registrant’s 2012 Equity Incentive Plan (the “
2012 Plan
”), pursuant to the provisions of the 2012 Plan that provide for an automatic annual increase in the number of shares reserved for issuance under the 2012 Plan. This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statements on Form S-8 filed with the Commission on February 1, 2013 (Registration No. 333-186402) and May 21, 2012 (Registration No. 333-181566). 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.
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 for the fiscal year ended December 31, 2017, filed with the Commission on February 1, 2018;
|
|
|
|
|
(b)
|
all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant's Annual Report referred to in (a) above; 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. Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K prior or subsequent to the filing of this Registration Statement shall not be deemed incorporated by reference into this Registration Statement. 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 that 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 22,000 shares of the Registrant’s capital stock (or securities convertible into shares of the Registrant's capital stock).
Item 8.
Exhibits
.
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
Incorporated by Reference
|
Filed
|
|
Number
|
Exhibit Description
|
Form
|
File No.
|
Exhibit
|
Filing Date
|
Herewith
|
|
|
|
|
|
|
|
|
|
4.1
|
|
10-Q
|
001-35551
|
3.1
|
July 31, 2012
|
|
|
4.2
|
|
10-Q
|
001-35551
|
3.2
|
July 31, 2012
|
|
|
4.3
|
|
S-1
|
333-179287
|
4.1
|
February 8, 2012
|
|
|
5.1
|
|
|
|
|
|
X
|
|
23.1
|
|
|
|
|
|
X
|
|
23.2
|
|
|
|
|
|
X
|
|
24.1
|
|
|
|
|
|
X
|
|
99.1
|
|
10-Q
|
001-35551
|
10.1
|
July 28, 2016
|
|
|
99.2
|
|
10-Q
|
001-35551
|
10.2
|
July 31, 2012
|
|
|
99.3
|
|
10-K
|
001-35551
|
10.3(C)
|
January 29, 2015
|
|
|
99.4
|
|
10-Q
|
001-35551
|
10.1
|
May 4, 2017
|
|
|
99.5
|
|
10-Q
|
001-35551
|
10.1
|
July 27, 2017
|
|
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, 2018.
|
|
|
|
|
|
|
|
|
|
|
FACEBOOK, INC.
|
|
|
|
|
|
|
Date:
|
February 1, 2018
|
|
/
S
/ David M. Wehner
|
|
|
|
|
David M. Wehner
|
|
|
|
|
Chief Financial Officer
|
|
|
|
|
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that the undersigned officers and directors of Registrant do hereby constitute and appoint David M. Wehner, Chief Financial Officer, and David W. Kling, Vice President, Deputy 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, 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.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Mark Zuckerberg
|
|
Chairman and Chief Executive Officer
|
|
February 1, 2018
|
|
Mark Zuckerberg
|
|
(
Principal Executive Officer
)
|
|
|
|
/s/ David M. Wehner
|
|
Chief Financial Officer
|
|
February 1, 2018
|
|
David M. Wehner
|
|
(
Principal Financial Officer
)
|
|
|
|
/
S
/ Susan J.S. Taylor
|
|
Chief Accounting Officer
|
|
February 1, 2018
|
|
Susan J.S. Taylor
|
|
(
Principal Accounting Officer
)
|
|
|
|
/s/ Marc L. Andreessen
|
|
Director
|
|
February 1, 2018
|
|
Marc L. Andreessen
|
|
|
|
|
|
/s/ Erskine B. Bowles
|
|
Director
|
|
February 1, 2018
|
|
Erskine B. Bowles
|
|
|
|
|
|
/s/ Susan D. Desmond-Hellmann
|
|
Director
|
|
February 1, 2018
|
|
Susan D. Desmond-Hellman
|
|
|
|
|
|
/s/ Reed Hastings
|
|
Director
|
|
February 1, 2018
|
|
Reed Hastings
|
|
|
|
|
|
/s/ Jan Koum
|
|
Director
|
|
February 1, 2018
|
|
Jan Koum
|
|
|
|
|
|
/s/ Sheryl K. Sandberg
|
|
Director
|
|
February 1, 2018
|
|
Sheryl K. Sandberg
|
|
|
|
|
|
/s/ Peter A. Thiel
|
|
Director
|
|
February 1, 2018
|
|
Peter A. Thiel
|
|
|
|
|
EXHIBIT 5.1
February 1, 2018
Facebook, Inc.
1601 Willow Road
Menlo Park, California 94025
Ladies and Gentlemen:
At your request, as your counsel, 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 February 1, 2018 in connection with the registration under the Securities Act of 1933, as amended (the “
Securities Act
”), of an aggregate of 42,000,000 shares (the “
Shares
”) of the Company’s Class A Common Stock, $0.000006 par value per share (the “
Class A
Common Stock
”), subject to issuance by the Company upon the exercise or settlement of awards (including awards of stock options, restricted stock, stock bonuses, stock appreciation rights, restricted stock units and/or performance shares) granted or to be granted under the 2012 Equity Incentive Plan, as amended and restated to date (the
“
2012 Plan
”). 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, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of: the Company’s current Certificate of Incorporation and Bylaws, as amended (collectively, the “
Charter Documents
”), the 2012 Plan, the Registration Statement and the exhibits thereto, and certain corporate proceedings of the Company’s Board of Directors (the “
Board
”) and the Company’s stockholders relating to adoption or approval of the Company Charter Documents, the 2012 Plan, the reservation of the Shares for sale and issuance, the filing of the Registration Statement and the registration of the Shares under the Securities Act and documents (including a certificate from the Company’s transfer agent) regarding the Company’s outstanding and reserved capital stock and other securities and such other documents as we have deemed advisable, and we have examined such questions of law as we have considered necessary.
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 genuineness of signatures on documents reviewed by us, the conformity to originals and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution and delivery of all documents by each party thereto other than the Company. We have also assumed that any certificates or instruments representing the Shares, when issued, will be executed by the Company by officers of the Company duly authorized to do so. In rendering our opinion, we have also relied upon a Certificate of Good Standing
dated January 31, 2018 issued by the Delaware Secretary of State with respect to the Company) and representations and certifications made to us by the Company, including without limitation representations in a Management Certificate addressed to us of even date herewith that the Company has available a sufficient number of authorized shares of Class A 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 now in effect.
We express no opinion with respect to the securities or “blue sky” laws of any state.
Based upon, and subject to, the foregoing, it is our opinion that when the 42,000,000 Shares of Class A Common Stock that may be issued and sold by the Company upon the exercise or settlement of awards (including any stock option, restricted stock, stock bonus, stock appreciation right, restricted stock unit or award of performance shares) granted or to be granted under the 2012 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 without limitation payment and authorization provisions) of the 2012 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 prospectus 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.
Very truly yours,
FENWICK & WEST LLP
By:
/s/ Fenwick & West LLP
