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)
 

 
 
 
 
Delaware
 
77-0565408
(State or other jurisdiction of
incorporation or organization)

 
(I.R.S. Employer
Identification Number)
4353 North First Street
San Jose, California 95134
(408) 543-1500
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

2018 Equity Incentive Plan
2018 Employee Stock Purchase Plan
(Full title of the plan)
 

Shawn Soderberg
Executive Vice President, General Counsel and Secretary
Bloom Energy Corporation
4353 North First Street
San Jose, California 95134
(408) 543-1500
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 




Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a small reporting 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. (Check one):
 
 
 
 
 
 
 
 
Large accelerated filer
 
 
Accelerated filer
 
x
 
 
 
 
Non-accelerated filer
 
 
Smaller reporting company
 
 
 
 
 
 
 
 
 
Emerging growth company
 
x
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, par value $0.0001 per share (“Class A Shares”), to be issued under the Bloom Energy Corporation 2018 Equity Incentive Plan (the “2018 Equity Plan”)
 
11,641,306(2)
 
$5.14(4)
 
$59,836,312.84
 
$7,766.75
Class A Shares, to be issued under the Bloom Energy Corporation 2018 Employee Stock Purchase Plan (the “2018 ESPP”)
 
2,910,326(3)
 
$4.37(5)
 
$12,718,124.62
 
$1,650.81
 
 
 



1
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers shares issued pursuant to certain anti-dilution provisions as set forth in the 2018 Equity Plan and the 2018 ESPP, including, without limitation, shares issued as a result of any stock split, stock dividend, recapitalization or any other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the Registrant’s outstanding Class A Shares.
2
The number of Class A Shares available for issuance under the 2018 Equity Plan is subject to an automatic annual increase on January 1 of each of 2019 through 2028, with such annual increase equal to the lesser of (i) 4% of the number of Class A Shares, the Registrant’s Class B common stock and common stock equivalents (including options, restricted stock units, warrants and preferred stock on an as-converted basis) issued and outstanding on each December 31 immediately prior to the date of increase and (ii) such number of Class A Shares determined by the Registrant’s Board of Directors (the “EIP Evergreen Provision”). Accordingly, the number of Class A Shares available for issuance under the 2018 Equity Plan was automatically increased by 5,662,030 and 5,979,276 shares effective January 1, 2019 and January 1, 2020, respectively, which amounts are equal to 4% of the number of Class A Shares, the Registrant’s Class B common stock and common stock equivalents (including options, restricted stock units, warrants and preferred stock on an as-converted basis) issued and outstanding as of December 31, 2018 and December 31, 2019, respectively. This Registration Statement registers the 5,662,030 and 5,979,276 additional Class A Shares available for issuance under the 2018 Equity Plan as of January 1, 2019 and January 1, 2020, respectively, as a result of the EIP Evergreen Provision.
3
The number of Class A Shares available for issuance under the 2018 ESPP is subject to an automatic annual increase on January 1 of each calendar year, with such annual increase equal to 1% of the total number of outstanding Class A Shares, Class B common stock of the Company, and common stock equivalents (including options, restricted stock units, warrants and preferred stock on an as converted basis) outstanding on the immediately preceding December 31 (rounded down to the nearest whole share); provided, that the Registrant’s Board of Directors or the Compensation Committee of the Board of Directors may in its sole discretion reduce the amount of the increase in any particular year (the “ESPP Evergreen Provision”). Accordingly, the number of Class A Shares available for issuance under the 2018 ESPP was automatically increased by 1,415,507 and 1,494,819 shares effective January 1, 2019 and January 1, 2020, respectively, which amounts are equal to 1% of the number of Class A Shares, the Registrant’s Class B common stock and common stock equivalents (including options, restricted stock units, warrants and preferred stock on an as-converted basis) issued and outstanding as of December 31, 2018 and December 31, 2019, respectively. This Registration Statement registers the 1,415,507 and 1,494,819 additional Class A Shares available for issuance under the 2018 ESPP as of January 1, 2019 and January 1, 2020, respectively, as a result of the ESPP Evergreen Provision.
4
Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Class A Shares as reported on the New York Stock Exchange on March 30, 2020 which amount was $5.14 per share.
5
Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee, based upon the average of the high and low prices of the Class A Shares as reported on the New York Stock Exchange on March 30, 2020, multiplied by 85% (the discount under the 2018 ESPP).

 
 


INFORMATION REQUIRED PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
General Instruction E Information
This Registration Statement on Form S-8 is being filed by Bloom Energy Corporation (“Bloom”) to register an additional 14,551,632 of its Class A common stock, par value $0.0001 per share (“Class A Shares”) issuable to employees of Bloom and certain of its subsidiaries under the Bloom Energy Corporation 2018 Equity Incentive Plan (the “2018 Equity Plan”) and the Bloom Energy Corporation 2018 Employee Stock Purchase Plan (the “2018 ESPP”), and consists of only those items required by General Instruction E to Form S-8.
The contents of Bloom’s Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission (“Commission”) on July 26, 2018 (Registration No. 333-226369), which relates to the 2018 Equity Plan and the 2018 ESPP, are incorporated herein by reference and made a part hereof, except for Items 3 and 8, which are being updated by this Registration Statement.



PART II    
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3. Incorporation of Documents by Reference.

Bloom hereby incorporates by reference in this Registration Statement the following documents and information previously filed with the Commission:  

 
(1)
Bloom’s Annual Report on Form 10-K for the year ended December 31, 2019, filed with the Commission on March 31, 2020;

 
(2)
Bloom’s current report on Form 8-K filed with the Commission filed with the Commission on February 12, 2020; and
 
(3)
The description of Bloom’s Class A Shares contained in Bloom’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.
All documents subsequently filed by Bloom pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement 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 herein and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).
Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 8.
Exhibits.
The following exhibits are filed as part of this Registration Statement:
 



 
 
 
Exhibit No.
 
Description
 
 
4.1
 
Restated Certificate of Incorporation of Bloom, incorporated by reference from Exhibit 3.1 to Bloom’s Quarterly Report on Form 10-Q filed with the Commission on September 7, 2018
 
 
 
4.2
 
Amended and Restated Bylaws of Bloom, incorporated by reference from Exhibit 3.2 to Bloom’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2019 as filed with the Commission on August 14, 2019
 
 
 
*5.1
 
Legal Opinion of Sidley Austin LLP
 
 
 
Bloom Energy Corporation 2018 Equity Incentive Plan, incorporated by reference from Exhibit 10.4 to Bloom’s Registration Statement on Form S-1 filed with the Commission on July 9, 2018
 
 
 
Bloom Energy Corporation 2018 Employee Stock Purchase Plan, incorporated by reference from Exhibit 10.5 to Bloom’s to Bloom’s Registration Statement on Form S-1/A filed with the Commission on July 9, 2018

 
 
*23.1
 
Consent of Independent Registered Public Accounting Firm – PricewaterhouseCoopers LLP, as filed herewith
 
 
 
*23.2
 
Consent of Sidley Austin LLP (contained in Exhibit 5.1)
 
 
*24.1
 
Power of Attorney (included in signature page to this Registration Statement)

* Filed herewith.





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 San Jose, State of California, on this 1st day of April, 2020.
 
 
 
 
BLOOM ENERGY CORPORATION

 
 
By:
 
/s/ Gregory Cameron
 
 
Name: Gregory Cameron
Title: EVP and Chief Financial Officer
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, acting individually, as his attorney-in-fact, with full power of substitution, for him and in any and all capacities, to sign any and all amendments to this Registration Statement on this Form S-8 (including any post-effective amendments thereto) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
 



 
 
 
 
 
Name and Signature
 
Title
 
Date
 
 
 
/s/ KR Sridhar     
KR Sridhar
 
Founder, President, Chief Executive Officer and Director
(Principal Executive Officer)
 
April 1, 2020
 
 
 
/s/ Gregory Cameron     
 
Chief Financial Officer
(Principal Financial and Accounting Officer)
 
April 1, 2020
Gregory Cameron
 
 
 
 
 
/s/ Michael Boskin       
Michael Boskin
 
Director
 
April 1, 2020
 
 
 
 /s/ Mary K. Bush
Mary K. Bush
 
Director
 
April 1, 2020
 
 
 
       /s/ John Chambers
John Chambers
 
Director
 
April 1, 2020
 
 
 
        /s/ John Doerr
John Doerr
 
Director
 
April 1, 2020
 
 
 
       /s/ Jeffrey Immelt
Jeffrey Immelt
 
Director
 
April 1, 2020
 
 
 
/s/ Colin Powell
Colin Powell
 
Director
 
April 1, 2020
 
 
 
/s/ Scott Sandell    
Scott Sandell
 
Director
 
April 1, 2020
 
 
 
       /s/ Peter Teti
Peter Teti
 
Director
 
April 1, 2020
 
 
 
  /s/ Eddy Zervigon
Eddy Zervigon
 
Director
 
April 1, 2020
 
 
 
 
 
 
 
 





EX51LEGALOPINIONIMAGE1.GIF
SIDLEY AUSTIN LLP
ONE SOUTH DEARBORN STREET
CHICAGO, IL 60603
+1 312 853 7000
+1 312 853 7036 FAX


AMERICA   ASIA PACIFIC   EUROPE
 


                                                                                                   

April 1, 2020
Bloom Energy Corporation
4353 North First Street
San Jose, CA 95134
Re:
14,551,632 Shares of Class A Common Stock, $0.0001 par value per share
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the “Registration Statement”) being filed by Bloom Energy Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of (i) 11,641,306 shares of Class A Common Stock, $0.0001 par value per share (the “Class A Shares”), of the Company which may be issued under the Bloom Energy Corporation 2018 Equity Incentive Plan (the “2018 Plan”) and (ii) 2,910,326 Class A Shares which may be issued under the Bloom Energy Corporation 2018 Employee Stock Purchase Plan (together with the 2018 Plan, the “Plans” and the aggregate Class A Shares to be registered under the Registration Statement, the “Registered Shares”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the Company’s Restated Certificate of Incorporation, the Company’s Amended and Restated Bylaws, the Plans and the resolutions adopted by the board of directors of the Company relating to the Registration Statement and the Plans, and the resolutions adopted by the stockholders of the Company relating to the Plans. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on the foregoing, we are of the opinion that each Registered Share that is newly issued pursuant to each Plan will be validly issued, fully paid and non-assessable when: (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act; (ii) such Registered Share shall have been duly issued and delivered in accordance with the applicable Plan; and (iii) certificates representing such Registered Share shall have been duly executed, countersigned and registered and duly delivered to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof) or, if any Registered Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Registered Share to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof), all in accordance with the applicable Plan.
This opinion letter is limited to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

Very truly yours,
/s/ Sidley & Austin LLP
Sidley Austin LLP






Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships.

Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Bloom Energy Corporation of our report dated March 31, 2020 relating to the financial statements, which appears in Bloom Energy Corporation’s Annual Report on Form 10-K for the year ended December 31, 2019.
/s/ PricewaterhouseCoopers LLP
San Jose, California
April 1, 2020