TESLA MOTORS INC FORM 10-K Filed 03/07/13 for the Period Ending 12/31/12

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TESLA MOTORS INC
FORM
10-K
(Annual Report)
Filed 03/07/13 for the Period Ending 12/31/12
Address
Telephone
CIK
Symbol
SIC Code
Industry
Sector
Fiscal Year
3500 DEER CREEK RD
PALO ALTO, CA 94070
650-681-5000
0001318605
TSLA
3711 - Motor Vehicles and Passenger Car Bodies
Auto & Truck Manufacturers
Consumer Cyclical
12/31
http://www.edgar-online.com
© Copyright 2013, EDGAR Online, Inc. All Rights Reserved.
Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use.
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
 ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2012
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from
to
Commission File Number: 001-34756
Tesla Motors, Inc.
(Exact name of registrant as specified in its charter)
Delaware
91-2197729
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
3500 Deer Creek Road
Palo Alto, California
94304
(Address of principal executive offices)
(Zip Code)
(650) 681-5000
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Name of each exchange on which registered
Common Stock, $0.001 par value
The NASDAQ Stock Market LLC
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes 
No Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes No 
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 (“Exchange Act”) during the preceding 12 months (or for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days. Yes 
No Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes 
No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained
herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference
in Part III of this Form 10-K or any amendment to this Form 10-K. 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 the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange
Act:
Large accelerated filer 
Accelerated filer
Non-accelerated filer
(Do not check if a smaller reporting company)
Smaller reporting company
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes No 
The aggregate market value of voting stock held by non-affiliates of the registrant, as of June 30, 2012, the last day of registrant’s most
recently completed second fiscal quarter, was $1,991,698,678 (based on the closing price for shares of the registrant’s Common Stock as
reported by the NASDAQ Global Select Market on June 30, 2012). Shares of Common Stock held by each executive officer, director, and holder
of 5% or more of the outstanding Common Stock have been excluded in that such persons may be deemed to be affiliates. This determination of
affiliate status is not necessarily a conclusive determination for other purposes.
As of January 31, 2013, there were 114,517,973 shares of the registrant’s Common Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s Proxy Statement for the 2013 Annual Meeting of Stockholders are incorporated herein by reference in Part III of this
Annual Report on Form 10-K to the extent stated herein. Such proxy statement will be filed with the Securities and Exchange Commission
within 120 days of the registrant’s fiscal year ended December 31, 2012.
Table of Contents
TESLA MOTORS, INC.
ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2012
INDEX
Page
PART I .
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
4
24
61
61
62
PART II.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures About Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
62
64
66
90
91
128
128
129
PART III.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
130
130
130
130
130
PART IV.
Item 15.
Exhibits and Financial Statement Schedules
130
Signatures
140
2
Table of Contents
Forward-Looking Statements
The discussions in this Annual Report on Form 10-K contain forward-looking statements reflecting our current expectations that involve
risks and uncertainties. These forward-looking statements include, but are not limited to, statements concerning our strategy, future operations,
future financial position, future revenues, projected costs, profitability, expected cost reductions, capital adequacy, expectations regarding
demand and acceptance for our technologies, growth opportunities and trends in the market in which we operate, prospects and plans and
objectives of management. The words “anticipates”, “believes”, “estimates”, “expects”, “intends”, “may”, “plans”, “projects”, “will”,
“would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these
identifying words. We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements and you should
not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and
expectations disclosed in the forward-looking statements that we make. These forward-looking statements involve risks and uncertainties that
could cause our actual results to differ materially from those in the forward-looking statements, including, without limitation, the risks set forth
in Part I, Item 1A, “Risk Factors” in this Annual Report on Form 10-K and in our other filings with the Securities and Exchange Commission.
We do not assume any obligation to update any forward-looking statements.
3
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PART I
ITEM 1.
BUSINESS
We design, develop, manufacture and sell high-performance fully electric vehicles and advanced electric vehicle powertrain components.
We own our sales and service network and have operationally structured our business in a manner that we believe will enable us to rapidly
develop and launch advanced electric vehicles and technologies. We believe our vehicles, electric vehicle engineering expertise, and operational
structure differentiates us from incumbent automobile manufacturers.
We are the first company to commercially produce a federally-compliant electric vehicle, the Tesla Roadster, which achieves a marketleading range on a single charge combined with attractive design, driving performance and zero tailpipe emissions. As of December 31, 2012,
we had delivered approximately 2,450 Tesla Roadsters to customers in over 30 countries. While we have concluded the production run of the
Tesla Roadster, its proprietary electric vehicle powertrain system is the foundation of our business. We modified this system for our Model S
sedan and plan to continue to enhance it for use in our future electric vehicles, including our Model X crossover.
We began shipments of our second vehicle, the Model S sedan, in June 2012. Model S is a four door, five-passenger premium sedan that
offers exceptional performance, functionality and attractive styling. As of December 31, 2012, we have produced over 3,100 Model S vehicles
and delivered approximately 2,650. We achieved our steady-state production run rate of 20,000 vehicles per year in December 2012. Model S
has won several awards, including the prestigious Motor Trend Car of the Year for 2013. As of December 31, 2012, we have received over
15,000 customer reservations (after deliveries and cancellations made during the year) for Model S with a minimum refundable payment of
$5,000.
We are adapting the platform architecture of the Model S to develop our Model X crossover. We revealed a prototype of Model X in
February 2012 and plan to begin production in late 2014. This unique vehicle has been designed to fill the niche between the roominess of a
minivan and the style of an SUV, while having high performance features such as a dual motor all-wheel drive system.
In addition to developing our own vehicles, we provide services for the development of full electric powertrain systems and components,
and sell electric powertrain components to other automotive manufacturers. We have provided development services and powertrain components
to Daimler AG (Daimler) for its Smart fortwo, A-Class, and B-Class electric vehicles. We also have developed a full electric powertrain system
for Toyota Motor Corporation (Toyota) for use in its RAV4 EV and began shipping production components to Toyota in 2012.
We sell and service our electric vehicles through our company-owned sales and service network in North America, Europe and Asia. Our
intent is to offer a compelling customer experience while gathering rapid customer feedback and achieving operating efficiencies, better control
over the costs of inventory, warranty service, pricing, and the development of the Tesla brand. Our Tesla stores do not carry large vehicle
inventories and, as a result, do not require corresponding large floor spaces. We believe the benefits we receive from distribution ownership will
enable us to improve the speed of product development and improve the capital efficiency of our business. We believe that this approach
provides us with a competitive advantage as compared to incumbent automobile manufacturers.
Our fully electric vehicles combine zero tailpipe emissions, market leading range on a single charge, impressive acceleration, and pricing
competitive with other vehicles in their classes. For example, our Model S sedan accelerates from zero to 60 miles per hour in as little as 4.4
seconds and has a range on a single charge of up to 265 miles. We offer Model S with a variety of battery pack options – 40 kWh, 60 kWh and
85 kWh. The
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Model S with the 40 kWh option has an effective base price of $52,400 in the United States, assuming and after giving effect to the continuation
of a United States federal tax credit of $7,500 for the purchase of alternative fuel vehicles. Even without the tax credit, we believe our list prices
are competitive from a pricing perspective with other premium vehicles. We believe that Model S demonstrates our ability to produce
increasingly affordable electric vehicles that offer long-range capabilities and uncompromised performance, energy efficiency, convenience and
design.
The commercial production of a highway capable, fully electric vehicle that meets consumers’ range and performance expectations
requires substantial design, engineering, and integration work on almost every system of our vehicles. Our roots in Silicon Valley have enabled
us to recruit engineers with strong skills in electrical engineering, power electronics and software engineering. We have complemented this talent
base with automotive engineers with substantial expertise in vehicle engineering and manufacturing. Our ability to combine expertise in electric
powertrain and vehicle engineering provides a broad capability in electric vehicle design and systems integration. We believe these capabilities,
coupled with our focus solely on electric vehicle technology as well as our strong in-house engineering and manufacturing capacity, will enable
us to sustain the electric vehicle industry leadership we created through the production of the Tesla Roadster and Model S.
Our battery pack and electric powertrain system has enabled us to deliver market-leading range capability on our vehicles at what we
believe is a compelling battery cost per kilowatt-hour. Our battery packs use commercially available lithium-ion battery cells and contain two to
three times the energy of any other commercially available electric vehicle battery pack, thereby significantly increasing the range capabilities of
our vehicles. Designing an electric powertrain and a vehicle to exploit its energy efficiency has required extensive safety testing and innovation
in battery packs, motors, powertrain systems and vehicle engineering. Our proprietary technology includes cooling systems, safety systems,
charge balancing systems, battery engineering for vibration and environmental durability, customized motor design and the software and
electronics management systems necessary to manage battery and vehicle performance under demanding real-life driving conditions. These
technology innovations have resulted in an extensive intellectual property portfolio—as of December 31, 2012, we had 117 issued patents and
more than 258 pending patent applications with the United States Patent and Trademark Office and internationally in a broad range of areas.
We are designing our vehicles to enable the cost effective development of our future vehicles. For example, we have designed Model S
with a platform architecture, which compactly positions the battery pack, motor and other elements of our powertrain within the frame of the
vehicle. We believe this architecture will form the basis of several future vehicles, including our planned Model X crossover, and enable us to
efficiently and cost effectively launch these new vehicle models in the future.
Our design and vehicle engineering capabilities, combined with the technical advancements of our powertrain system, have enabled us to
design and develop zero tailpipe emission vehicles that we believe overcome the design, styling, and performance issues that we believe have
historically limited broad consumer adoption of electric vehicles. As a result, we believe our customers enjoy several benefits, including:
•
Long Range and Recharging Flexibility. Our vehicles offer ranges that are almost double the range of any other commercially
available electric vehicle. In addition, our vehicles incorporate our proprietary on-board charging system, permitting recharging from
almost any available electrical outlet. Certain battery pack versions of Model S also offer fast charging capability from our
Supercharger network. We believe the long-range and charging flexibility of our vehicles will help reduce consumer anxiety over
range, alleviate the need for expensive, large-scale charging infrastructure, and differentiate our vehicles as compared to our
competitors’ currently announced electric vehicle product offerings.
•
Energy Efficiency and Cost of Ownership. We believe our vehicles offer consumers an attractive cost of ownership when compared
to similar internal combustion engine or hybrid electric vehicles. Using only a single electric powertrain enables us to create a lighter,
more energy efficient vehicle that is
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mechanically simpler than currently available hybrid or internal combustion engine vehicles. We also expect our electric vehicles
will have lower relative maintenance costs than hybrid, plug-in hybrid, or internal combustion engine vehicles due to fewer moving
parts and the absence of certain components, including oil, oil filters, spark plugs and engine valves. Additionally, government
incentives that are currently available can reduce the cost of ownership even further.
•
High-Performance Without Compromised Design or Functionality. We believe we have been able to successfully overcome the
design and performance tradeoff issues that encumbered most early electric vehicle designs. We believe our vehicles deliver
unparalleled driving experiences with instantaneous and sustained acceleration through an extended range of speed. In addition, our
Model S seats five adults, provides best in class storage in the trunk and hood while offering design and performance comparable to,
or better than, other premium sedans.
Our Vehicles and Products
We currently design, manufacture and sell fully electric vehicles and electric powertrain components. We are currently selling primarily
the Model S sedan.
Model S
Model S is a fully electric, four-door, five-adult passenger sedan that produces zero tailpipe emissions and accelerates from zero to 60
miles per hour in as low as 4.4 seconds in its performance version. We began customer deliveries in June 2012. As of December 31, 2012, we
had produced over 3,100 Model S vehicles and delivered approximately 2,650. In addition, as of December 31, 2012, we had received over
15,000 customer reservations (after deliveries and cancellations made during the year) with a minimum refundable payment of $5,000.
We offer Model S with a variety of battery pack options – 40 kWh, 60 kWh and 85 kWh – which offer a range on a single charge of up to
265 miles. To complement its range capabilities, we also offer the capability to fast charge Model S vehicles equipped with either the 60 kWh or
85 kWh battery packs at our Supercharger facilities. The fast charge capability allows Model S owners to replenish 50% of the battery pack in as
little as 30 minutes. In addition, we designed Model S to incorporate a modular battery pack in the floor of the vehicle, enabling it to be rapidly
swapped out at certain of our service centers and specialized commercial battery exchange facilities that we anticipate may be available in the
future.
We believe Model S offers a compelling combination of functionality, convenience and styling without compromising performance and
energy efficiency. With the battery pack in the floor of the vehicle and the motor and gearbox in line with the rear axle, Model S provides best in
class storage space of 31.6 cubic feet, including storage under both the tailgate and the hood. By way of comparison, this storage space exceeds
the approximately 14 cubic feet of storage available in the 2009 BMW 5 Series sedan and the approximately 21 cubic feet of storage available in
the 2009 Lincoln Town Car. In addition, we have designed Model S to include a third row with two rear-facing child seats, allowing us to offer
seating for five adults and two children. Model S is also available with premium luxury features, including a 17 inch touch screen driver
interface, advanced wireless connectivity, such as 3G connectivity, and driver customization of the infotainment and climate control systems of
the vehicle. We have designed Model S with the intent to achieve a five star safety rating. We believe the intended combination of performance,
styling, convenience and energy efficiency of Model S will help position it as a compelling alternative to other vehicles in the luxury and
performance segments.
The 40 kWh, 60 kWh and 85 kWh battery pack options of Model S will have an effective base price of $52,400, $62,400, and $72,400,
respectively, in the United States, assuming and after giving effect to the continuation of a United States federal tax credit of $7,500 for the
purchase of alternative fuel vehicles. Even without the tax credit, we believe the base list prices will be competitive with those of other premium
vehicles. We also offer a performance version of Model S. Equipped with the 85 kWh battery pack and a high performance drive inverter, the
Model S performance version accelerates from zero to 60 miles per hour in 4.4 seconds. The effective base price of the Model S performance
version is $87,400.
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We have designed Model S to provide a lower cost of ownership as compared to other vehicles in its class. We consider the purchase price,
cost of fuel and the cost of maintenance over a six year ownership period in this calculation. We assume comparable residual values, warranties,
insurance costs and promotions and assume that currently available consumer incentives are still available at the time of a Model S purchase. In
addition to the competitive pricing of Model S relative to other premium vehicles, we estimate that customers of electric vehicles will enjoy
lower fuel costs. For example, assuming an average of 12,000 miles driven per year, an average electricity cost of 11.2 cents per kilowatt-hour
and an average gasoline price of $3.32 per gallon over the full ownership of the vehicle which were the average electricity cost and gasoline
price in the United States, respectively, for January 2013, and based on our estimate of the energy efficiency of Model S, we estimate that our
Model S could have approximately $1,800 per year less in fuel costs than a comparable premium internal combustion engine sedan.
Furthermore, we expect Model S will have lower maintenance costs than comparable premium internal combustion engine sedans due to fewer
moving parts and the absence of certain components, including oil, oil filters, spark plugs and engine valves.
The Tesla Roadster
Our first vehicle, the Tesla Roadster, is the first high-performance electric sports car. The two-seat, convertible Tesla Roadster has a
combination of range, style, performance and energy efficiency that we believe is unmatched in the market today. It can accelerate from zero to
60 miles per hour in as little as 3.7 seconds and has a maximum speed of approximately 120 miles per hour. The Tesla Roadster also has a range
of 245 miles on a single charge, as determined using the United States EPA’s, combined two-cycle city/highway test.
As of December 31, 2012, we had delivered almost all of our remaining inventory of Tesla Roadsters to customers in over 30 countries,
almost all of which were sold to customers in North America and Europe. The Tesla Roadster complies with, or is exempt from, all applicable
vehicle safety standards in the United States, the European Union as well as in select other countries. To date, our customers have driven the
Tesla Roadster for an estimated aggregate of almost 30 million miles. We concluded the production run of the Tesla Roadster in January 2012.
We are selling our remaining Tesla Roadsters primarily in Europe and Asia until our inventory is depleted.
Model X and Future Vehicle Roadmap
We have designed Model S with an adaptable platform architecture and common electric powertrain that we intend to leverage to create
future electric vehicle models. In particular, by designing our electric powertrain within the chassis to accommodate different vehicle body
styles, we believe that we can save significant time in future vehicle development. In addition, we believe our strategy of using commercially
available battery cells will enable us to leverage improvements in cell chemistries and rapidly introduce planned vehicles with different range
options. However, we may make changes to the design of Model S and Model X, including changes that may make it more difficult to use the
Model S platform for Model X and other future vehicles.
In February 2012, we revealed an early prototype of the Model X crossover as the first vehicle we intend to develop by leveraging the
Model S platform. This unique vehicle has been designed to fill the niche between the roominess of a minivan and the style of an SUV, while
having high performance features such as a dual motor all-wheel drive system. The Model X will seat seven adults. We currently plan to start
production of Model X in late 2014. We anticipate that we will make Model X available with 60 kWh and 85 kWh battery pack options, with
pricing of each version similar to those of a comparably equipped Model S. We currently intend to target an annual production rate of
approximately 10,000 -15,000 cars per year from our Tesla Factory.
We have also publicly announced our intent to develop a third generation electric vehicle to be produced at the Tesla Factory. We intend to
offer this vehicle at a lower price point and expect to produce it at higher volumes than our Model S. We expect that this vehicle will be
produced a few years after the introduction of the Model X crossover.
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Powertrain Development and Sales
In addition to our own vehicles, we also design, develop, manufacture and sell advanced electric vehicle powertrain components to other
automotive manufacturers.
We have provided development services and full powertrain systems and components to Daimler for its Smart fortwo, A-Class, and BClass electric vehicles. From May 2009 through December 2012, we provided approximately 2,700 battery packs and chargers for the Smart
fortwo and A-Class vehicles. We have completed these programs and are now providing development services to Daimler for its B-Class electric
vehicle. We also have developed a full electric powertrain system for Toyota for use in its RAV4 EV and began shipping production systems to
Toyota in 2012. Our production activities under this program are expected to continue through 2014.
We are continuing to perform our electric powertrain component and systems activities principally out of our Palo Alto facility. This
facility, which also serves as our corporate headquarters, houses our research and development services, including cell and component testing
and prototyping, as well as manufacturing of powertrain components for sales to third parties.
Technology
We believe the core competencies of our company are powertrain and vehicle engineering. Our core intellectual property is contained
within our electric powertrain. Our electric powertrain consists of the following: battery pack, power electronics, motor, gearbox and the control
software which enables the components to operate as a system. We designed each of these major elements for our Tesla Roadster and Model S
and plan to use much of this technology in Model X, our future electric vehicles and powertrain components that we build for other
manufacturers. Our powertrain and battery pack have a modular design, enabling future generations of electric vehicles to incorporate a
significant amount of this technology. Further, our powertrain is very compact and contains far fewer moving parts than the internal combustion
powertrain. These features enable us to adapt it for a variety of applications, including our future vehicles and any powertrain components we
build for other manufacturers.
Battery Pack
We design our battery packs to safely store significant amounts of energy and to have long lives. For example, we have designed our Tesla
Roadster battery packs to store 53 kilowatt hours of useful energy and to have a life of over 100,000 miles or seven years. In addition, we have
designed our battery packs to be modular so that we can leverage technology developments across our different vehicles and products. Our
proprietary technology includes cooling systems, safety systems, charge balancing systems, battery engineering for vibration and environmental
durability, robotic manufacturing processes, customized motor design and the software and electronics management systems necessary to
manage battery and vehicle performance under demanding real-life driving conditions. We have significant experience and expertise in the
safety and management systems needed to work with lithium-ion cells in the demanding automotive environment. We believe these
advancements have enabled us to produce a battery pack at a low cost per kilowatt-hour.
We believe one of our core competencies is the design of our complete battery pack system. We have designed our battery pack system to
permit flexibility with respect to battery cell chemistry, form factor and vendor that we adopt for battery cell supply. In so doing, we believe that
we can leverage the substantial battery cell investments and advancements being made globally by battery cell manufacturers to continue to
improve the cost per kilowatt-hour of our battery pack. We maintain an internal battery cell testing lab and an extensive performance database of
the many available lithium-ion cell vendors and chemistry types. We intend to incorporate the battery cells that provide the best value and
performance possible into our battery packs, and we expect this to continue over time as battery cells continue to improve in energy storage
capacity, longevity, power delivery and cost. We believe this flexibility will enable us to continue to evaluate new battery cells as they become
commercially viable, and thereby optimize battery pack system performance and cost for our
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current and future vehicles. We believe our ability to change battery cell chemistries and vendors while retaining our existing investments in
software, electronics, testing and vehicle packaging, will enable us to quickly deploy various battery cells into our products and leverage the
latest advancements in battery cell technology.
The range of our electric vehicles on a single charge declines principally as a function of usage, time and charging patterns. A customer’s
use of their Tesla vehicle as well as the frequency with which they charge the battery of their Tesla vehicle can result in additional deterioration
of the battery’s ability to hold a charge. For example, we currently expect that the Tesla Roadster battery pack will retain approximately 60-65%
of its ability to hold its initial charge after approximately 100,000 miles or seven years, which will result in a decrease to the vehicle’s initial
range. In addition, based on internal testing, we estimate that our Tesla Roadster would have a 5-10% reduction in range when operated in -20°C
temperatures.
To date, we have tested hundreds of battery cells of different chemistries, form factors and designs. Based on this evaluation, we are
presently using lithium-ion battery cells based on the 18650 form factor in all of our battery packs. These battery cells are commercially
available in large quantities. We currently intend to use the same battery cell form factor in Model X. We entered into a supply agreement with
Panasonic Corporation (Panasonic) for the use of Panasonic’s battery cells in Model S. We expect these battery cells to exhibit better
performance and longer lifetimes than the battery cells used in the Tesla Roadster.
Power Electronics
The power electronics in our electric powertrain govern the flow of electrical current throughout the car, primarily the current that flows
into and out of the battery pack. The power electronics has two primary functions, the control of torque generation in the motor while driving
and the control of energy delivery back into the battery pack while charging.
The first function is accomplished through the drive inverter, which converts direct current (DC) from the battery pack into alternating
current (AC) to drive our three-phase induction motors. The drive inverter also converts the AC generated by regenerative braking back into DC
for electrical storage in the battery pack. The drive inverter performs this function by using a high-performance digital signal processor which
runs some of the most complicated and detailed software in the vehicle. In so doing, the drive inverter is directly responsible for the
performance, high efficiency and overall driving experience of the vehicle.
The second function, charging the battery pack, is accomplished by the charger, which converts alternating current (usually from a wall
outlet or other electricity source) into direct current which can be accepted by the battery. The charger enables us to use any available source of
power to charge our vehicle. Our vehicles can recharge on any electrical outlet from a common outlet of 15 amps and 120 volts all the way up to
a high power outlet of 70 amps and 240 volts, which provides faster recharging.
Since the charger system is built into our vehicles, it is possible to charge our vehicles using a variety of power outlets. For example,
charging the Tesla Roadster battery pack to full capacity will take approximately 7 hours using a 240 volt, 40 amp outlet that is widely available
in many homes in the United States for electric appliances. A high power connection capable of 240 volts and 70 amps reduces this charging
time to about 4.5 hours. Such a connection can be installed in many homes with the assistance of a qualified electrician. For additional
flexibility, the Tesla Roadster battery pack can also be charged with a 120 volt, 15 amp connection. Using this lower power output, the Tesla
Roadster battery pack can be charged to full capacity in about 42 hours. This flexibility in charging provides customers with additional mobility,
while also allowing them to conveniently charge the vehicle overnight at home.
We offer a high-voltage, direct current fast charge option for Model S with the 60 kWh and 85 kWh battery pack options that enable the
vehicle to charge from Tesla’s Supercharger network.
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Motor
Our powertrains currently use custom designed 3-phase induction motors. We believe we have made several important innovations in our
motor design that minimize mass while still providing high power and efficiency. Our motors incorporate a proprietary fabricated copper rotor
design. Our motors also include optimized winding patterns that allow for easy manufacture and fit in as much copper as possible to reduce
resistance and energy losses.
Gearbox
We have designed custom, single speed gearboxes that are manufactured in-house for the Tesla Roadster and Model S. These gearboxes
combine low mass with high efficiency and can match both the speed and torque capabilities of our AC induction motors. In comparison to a
gasoline-powered vehicle, the elimination of gear changes contributes to the rapid acceleration characteristics of our vehicles.
Control Software
The performance and safety systems of our vehicles and their battery packs require sophisticated control software. There are numerous
processors in our vehicles to control these functions, and we write custom firmware for many of these processors. The flow of electricity
between the battery pack and the motor must be tightly controlled in order to deliver the performance and behavior expected in the vehicle. For
example, software algorithms enable the vehicle to mimic the “creep” feeling which drivers expect from an internal combustion engine vehicle
without having to apply pressure on the accelerator. Similar algorithms control traction, vehicle stability and the sustained acceleration and
regenerative braking of the vehicle. Drivers use the information systems in our vehicles to optimize performance and charging modes and times.
Software also is used extensively to monitor the charge state of each of the cells of the battery pack and to manage all of its safety systems. In
addition to the vehicle control software, we also develop software for the infotainment system of Model S.
Vehicle Design and Engineering
In addition to the design, development and production of the powertrain, we have created significant in-house capabilities in the design and
engineering of electric vehicles and electric vehicle components and systems. We design and engineer bodies, chassis, interiors, heating and
cooling and low voltage electrical systems in house and to a lesser extent in conjunction with our suppliers. Our team has core competencies in
computer aided design and crash test simulations which we expect to reduce the product development time of new models.
Several traditional automotive subsystems required substantial redesign and custom optimization to integrate with the powertrain of an
electric vehicle. For example, we redesigned the heating, ventilation and air conditioning (HVAC) system to integrate with the battery thermal
management system and to operate without the energy generated from an internal combustion engine. In addition, low voltage electric systems
which power features such as the radio, power windows, and heated seats also needed to be designed specifically for use in an electric vehicle.
We have developed expertise in integrating these components with the high-voltage power source in the vehicle and in designing components
that significantly reduce their load on the vehicle battery pack, thereby maximizing the available range of the vehicle.
Additionally, our team has expertise in lightweight materials, a very important characteristic for electric vehicles given the impact of mass
on range. The Tesla Roadster is built with an internally-designed carbon fiber body which provides a balance of strength and mass. Model S is
built with a lightweight aluminum body and chassis which incorporates a variety of materials and production methods that help optimize the
weight of the vehicle.
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Sales and Marketing
Company-Owned Stores and Galleries
We market and sell cars directly to consumers through an international network of company-owned stores and galleries. Our Tesla stores
and galleries are highly visible, premium outlets in major metropolitan markets some of which combine retail sales and service. We intend to
build separate sales and service locations in several markets. In April 2011, we opened our store at Santana Row in San Jose, California. The
opening of our Santana Row store launched what we believe to be a new retail experience designed to engage and inform potential customers
about electric vehicles in general and the advantages of the Tesla experience in particular. We have opened eighteen other locations modeled on
this concept to complement our older sales and service locations. In total, we now operate a network of 32 stores and galleries in North America,
Europe and Asia. We plan to open additional stores and/or galleries during 2013.
We believe that by owning our own sales and service network we can offer a compelling customer experience while achieving operating
efficiencies and capturing sales and service revenues incumbent automobile manufacturers do not enjoy in the traditional franchised distribution
and service model. Our customers deal directly with our own Tesla-employed sales and service staff, creating what we believe is a differentiated
buying experience from the buying experience consumers have with franchised automobile dealers and service centers. We believe we will also
be able to better control costs of inventory, manage warranty service and pricing, maintain and strengthen the Tesla brand, and obtain rapid
customer feedback. Further, we believe that by owning our sales network we will avoid the conflict of interest in the traditional dealership
structure inherent to most incumbent automobile manufacturers where the sale of warranty parts and repairs by a dealer are a key source of
revenue and profit for the dealer but often are an expense for the vehicle manufacturer.
Reservations
We typically carry very limited inventory of our vehicles at our Tesla stores. While some customers may purchase their vehicles from this
inventory, most of our customers choose to customize the appearance of their vehicle. We require an initial refundable reservation payment of at
least $5,000 for our vehicles. The reservation payment becomes a nonrefundable deposit once the customer has selected the vehicle
specifications and enters into a purchase agreement. We require full payment of the purchase price of the vehicle only upon delivery of the
vehicle to the customer. Reservation payments and deposits are used by us to fund, in part, our working capital requirements and help us to align
production with demand. As of December 31, 2012, we had received over 15,000 customer reservations (after deliveries and cancellations made
during the year) for Model S.
Marketing
Our principal marketing goals are to:
•
generate demand for our vehicles and drive leads to our sales teams;
•
build long-term brand awareness and manage corporate reputation;
•
manage our existing customer base to create loyalty and customer referrals; and
•
enable customer input into the product development process.
As the first company to commercially produce a federally-compliant, fully electric vehicle that achieves market-leading range on a single
charge, we have been able to generate significant media coverage of our company and our vehicles, and we believe we will continue to do so. To
date, media coverage and word of mouth have been the primary drivers of our sales leads and have helped us achieve sales without traditional
advertising and at relatively low marketing costs. We also use traditional means of advertising including product placement in a variety of media
outlets and pay-per-click advertisements on websites and applications relevant to our target demographics.
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Our marketing efforts include events where our vehicles are displayed and demonstrated. These events range from widely attended public
events, such as the Detroit, Los Angeles, and Frankfurt auto shows, to smaller events oriented towards sales, such as private drive events.
Company-Owned Charging Network, Service and Warranty
Tesla Supercharger Network
We are building a network of 90 kWh fast charging equipment, each called a Tesla Supercharger, throughout North America for fast
charging of Model S. The Tesla Supercharger is an industrial grade, high speed charger designed to replenish 50% of the battery pack in as little
as 30 minutes. We have implemented Superchargers along key routes in California and between Washington, D.C., New York, and Boston.
Access to the Supercharger network is currently available free of charge to owners of Model S vehicles with the 85 kWh battery pack options
and when purchased as an upfront option for 60 kWh. We are planning to methodically expand the Supercharger network over the next few
years.
Service
We provide service for our electric vehicles at our company-owned service centers or, in certain areas for an additional charge, through
Tesla Ranger mobile technicians who provide services that do not require a vehicle lift. We own and operate a total of 29 service locations as of
December 31, 2012. We are continuing our plan to build a number of additional service centers in several markets worldwide.
Tesla Roadster owners can upload data from their vehicle and send it to us on a memory card and Model S owners can do the same via an
on-board GSM system, allowing us to diagnose and remedy many problems before ever looking at the vehicle. When maintenance or service is
required, a customer can schedule service by contacting one of our Tesla service centers. Our Tesla Rangers can also perform an array of
services that do not require a vehicle lift from the convenience of a customer’s home or other remote location.
We believe that our company-owned service centers enable our technicians to work closely with our engineers and research and
development teams in Silicon Valley to identify problems, find solutions, and incorporate improvements faster than incumbent automobile
manufacturers.
Maintenance Programs
We have announced a prepaid maintenance program for Model S, which includes plans covering maintenance for four years or up to
50,000 miles and an additional four years or up to an additional 50,000 miles, provided they are purchased within a specified period of time.
These plans cover annual inspections and the replacement of wear and tear parts, excluding tires and the battery, with either a fixed fee per visit
for Tesla Ranger service or unlimited Tesla Ranger visits for a higher initial purchase price. For customers that are not covered by our New
Vehicle Limited Warranties or our Extended Service plans, we offer Tesla Ranger service at a higher cost.
New Vehicle Limited Warranty Policy
Subject to separate limited warranties for the supplemental restraint system and battery, we provide a four year or 50,000 mile New
Vehicle Limited Warranty with every Model S. The New Vehicle Limited Warranty covers the battery for a period of eight years or 100,000
miles, 125,000 miles or unlimited miles, depending on the size of the vehicle’s battery, although the battery’s charging capacity is not covered
under the New Vehicle Limited Warranty or any Extended Service plan. Customers have the opportunity to purchase an Extended Service plan
for the period after the end of the New Vehicle Limited Warranty to cover additional services for an additional four years or 50,000 miles,
provided it is purchased within a specified period of time.
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We provided a three year or 36,000 mile New Vehicle Limited Warranty with every Tesla Roadster, which we extended to four years or
50,000 miles for the purchasers of our 2008 Tesla Roadster. Customers have the opportunity to purchase Extended Service plans for the period
after the end of the New Vehicle Limited Warranty to cover additional services for up to an additional three years or 36,000 miles, provided they
are purchased within a specified period of time.
Our New Vehicle Limited Warranties and Extended Service plans are subject to certain limitations, exclusions or separate warranties,
including certain wear items, such as tires, brake pads, paint and general appearance, and battery performance, and are intended to cover parts
and labor to repair defects in material or workmanship in the body, chassis, suspension, interior, electronic systems, battery, powertrain and
brake system.
Battery Replacement Programs
While coverage of battery failure due to defects in material or workmanship is included in the New Vehicle Limited Warranty, battery
performance, specifically its charging capacity, is not covered in either the New Vehicle Limited Warranty or the Extended Service plans.
However, we have previously provided our Tesla Roadster customers with a battery replacement option to replace the battery in their vehicles at
any time after the expiration of the New Vehicle Limited Warranty but before the tenth anniversary of the purchase date of their vehicles and
recently announced a battery replacement option for all three battery variants of our Model S in which customers may purchase, within a
specified period of time, a one-time option (subject to certain limitations and exclusions) to replace the battery at any time before the twelfth
anniversary of such purchase date, with certain price adjustments depending upon the year the battery is replaced.
Manufacturing
Vehicle Assembly
We completed the production of Tesla Roadster gliders at Lotus Cars Limited in January 2012. We have a limited inventory of Roadsters
for sale primarily in Europe and Asia. As of December 31, 2012, we had delivered almost all of our remaining inventory of Roadsters to
customers.
We operate the Tesla Factory, an integrated electric vehicle manufacturing facility in Fremont, California to manufacture Model S and
certain components that are critical to our intellectual property and quality standards for Model S. The Tesla Factory contains several
manufacturing operations, including stamping, plastics, body assembly, paint operations, battery pack manufacturing, final vehicle assembly and
end-of-line testing. Certain major component systems are purchased from suppliers. We are targeting an annual production rate at this facility for
Model S of approximately 20,000 cars in 2013. We believe that we will be able to increase the annual production capacity of this plant beyond
this amount through additional capital spending as well as by changing operating patterns and adding additional shifts.
Powertrain Component Manufacturing
In addition to developing our Model S and future vehicle manufacturing capabilities at the Tesla Factory, we are currently designing,
developing and manufacturing lithium-ion battery packs, electric motors, gearboxes and components both for our vehicles and for our original
equipment manufacturer customers. These activities occur at our electric powertrain manufacturing facility in Palo Alto, California and at the
Tesla Factory.
Supply Chain
Model S uses over 2,000 purchased parts which we source globally from over 200 suppliers, many of whom are currently our single source
suppliers for these components. We have developed close relationships with several key suppliers particularly in the procurement of cells and
certain other key system parts. While we obtain components from multiple sources whenever possible, similar to other automobile
manufacturers, many of the components used in our vehicles are purchased by us from a single source.
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To date, we have not qualified alternative sources for most of the single sourced components used in our vehicles and we generally do not
maintain long-term agreements with our suppliers. While we believe that we may be able to establish alternate supply relationships and can
obtain or engineer replacement components for our single source components, we may be unable to do so in the short term or at all at prices or
costs that are favorable to us. For example, while several sources of the battery cell we have selected for our battery packs are available, we have
fully qualified only two suppliers for these cells. Any disruption in the supply of battery cells from either vendor could temporarily disrupt
production of the vehicles until such time as a different supplier is fully qualified and there can be no assurance that we would be able to
successfully retain alternative suppliers on a timely basis. Moreover, battery cell manufactures may not supply us at reasonable prices or on
reasonable terms or may choose to refuse to supply electric vehicle manufacturers to the extent they determine that the vehicles are not
sufficiently safe.
We use various raw materials in our business including aluminum, steel, nickel and copper. The prices for these raw materials fluctuate
depending on market conditions and global demand for these materials. We believe that we have adequate supplies or sources of availability of
the raw materials necessary to meet our manufacturing and supply requirements. There are always risks and uncertainties, however, with respect
to the supply of raw materials that could impact their availability in sufficient quantities or reasonable prices to meet our needs.
Quality Control
Our quality control efforts are divided between product quality and supplier quality, both of which are focused on designing and producing
products and processes with high levels of reliability. Our product quality engineers work with our engineering team and our suppliers to help
ensure that the product designs meet functional specifications and durability requirements. Our supplier quality engineers work with our
suppliers to ensure that their processes and systems are capable of delivering the parts we need at the required quality level, on time, and on
budget. Our quality systems engineers create and manage our systems, such as configuration management and corrective action systems, to help
ensure product developers, supplier chain managers, and production controllers have the product information they need.
Customers and Selected Relationships
We currently sell our cars primarily to individual customers. We have strategic or commercial relationships with Daimler, Toyota, and
Panasonic. We intend to expand our business by developing and selling additional powertrain components and systems to Daimler, Toyota and
other third party OEMs.
Daimler AG
Beginning in 2008, we commenced efforts on a powertrain development arrangement with Daimler. In May 2009, we entered into a
development agreement with Daimler under which we have performed specified research and development services for the development of a
battery pack and charger for Daimler’s Smart fortwo electric drive. All development work related to the development agreement had been
completed as of December 31, 2009. Through December 2011, we had sold over 2,100 battery packs and chargers for the Smart fortwo electric
drive program. In the first quarter of 2010, Daimler engaged us to assist with the development and production of a battery pack and charger for a
pilot fleet of its A-Class electric vehicles to be introduced in Europe during 2011. A formal agreement for this arrangement was entered into with
Daimler in May 2010. In October 2010, we completed the development of the A-Class battery pack and charger and began shipping production
parts in February 2011. Through December 2011, we sold over 500 battery packs and chargers for the A-Class EV program. In the first quarter
of 2010, we completed the development and sale of modular battery packs for electric delivery vans for Freightliner, an affiliate of Daimler.
Freightliner plans to use these electric vans in a limited number of customer trials.
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In February 2012, we received an initial purchase order for the development of a full electric powertrain system for an additional Mercedes
Benz vehicle from Daimler. We are negotiating the agreement for production parts for this B-Class program.
In addition to the agreements described above, we have entered into an exclusivity and intellectual property agreement (EIP Agreement)
with Daimler North America Corporation (DNAC), an affiliate of Daimler, in which we agreed to begin negotiating in good faith to enter into
further agreements within certain strategic cooperation areas, including technology collaboration in various electric powertrain areas, automotive
engineering support, joint electric vehicle development efforts and access to component parts for Tesla designed products. Under this EIP
Agreement, we agreed that, until November 11, 2009, we would not negotiate or enter into any agreements with other parties that would be
competitive with the arrangements contemplated for these strategic cooperation areas, unless the results of such arrangement would be marketed
solely under the Tesla brand. As of that date, we had not executed any further agreements with Daimler in the areas of strategic cooperation.
The EIP Agreement provides that ending July 2013, if the company receives an offer from a strategic competitor of Daimler to enter into
an agreement for development of a non-Tesla branded vehicle or an integrated electric powertrain system, DNAC would be given the right of
first refusal to enter into such agreement with the company instead of, and on the same terms offered by, the third party.
The EIP Agreement also provides that if we execute a strategic cooperation agreement with DNAC to jointly engineer an electric vehicle,
then additional exclusivities would apply until July 2013, provided a minimum annual volume of sales is achieved. The EIP Agreement provides
that none of the restrictions set out in that agreement, or in any strategic agreement, would limit us from developing technology with any third
party for use in a Tesla-branded product or service or related to the Tesla Roadster or Model S, engaging in any transaction with a company that
is not a Daimler competitor, or supplying components for electric powertrains that are designed by third parties.
The EIP Agreement also provides that if the parties enter into the strategic agreements or further agreements, those agreements will
allocate intellectual property rights according to certain principles outlined in the EIP Agreement. In addition, until July 2013, before licensing
intellectual property generated outside the scope of any strategic cooperation area to a Daimler competitor, we would first have to offer DNAC
the right to license the intellectual property on a non-exclusive, royalty-bearing basis, or on an exclusive basis in the automotive field; and if
DNAC requests the latter, we must negotiate such a license in good faith. If no agreement is reached, however, we would be free to license the
technology to the Daimler competitor, and DNAC could take a non-exclusive license. Both we and Daimler have the right to terminate the EIP
Agreement in the event the other party undergoes, or executes an agreement to undergo, a change of control. Any strategic cooperation
agreements entered into between us and Daimler prior to termination will not be affected by such termination.
To date, with the exception of the development agreement for the Smart fortwo electric drive and the agreement for the development and
production of a battery pack and charger for a pilot fleet of Daimler’s A-Class electric vehicles, the strategic agreements described in the EIP
Agreement have not been entered into, and there can be no assurance that the parties will ever enter into such agreements. Even if we were to
enter into such agreements, the parties may negotiate and agree to terms that are different to those set forth in the EIP Agreement and outlined
above. Such different or new terms may be more or less favorable to us.
In addition to these agreements, Blackstar lnvestCo LLC (Blackstar), an affiliate of Daimler, beneficially owned 4,867,929 shares of our
common stock as of December 31, 2012.
Toyota Motor Corporation
In May 2010, we and Toyota announced our intention to cooperate on the development of electric vehicles, and for us to receive Toyota’s
support with sourcing parts and production and engineering expertise for Model S.
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In July 2010, we entered into an early phase agreement to develop an electric powertrain for the Toyota RAV4. With an aim by Toyota to market
the electric vehicle in the United States in 2012, prototypes would be made by combining the Toyota RAV4 model with a Tesla electric
powertrain. We began developing and delivering prototypes to Toyota for evaluation in September 2010.
In October 2010, we entered into a contract services agreement with Toyota for the development of a validated powertrain system,
including a battery, power electronics module, motor, gearbox and associated software, which will be integrated into an electric vehicle version
of the Toyota RAV4. We completed all of the development services for the RAV4 EV in the first quarter of 2012.
Additionally, in July 2011, we entered into an agreement to supply Toyota with electric powertrain system for the RAV4 EV. We began
delivery of these systems to Toyota for installation into the Toyota RAV4 EV in the first half of 2012. Our production activities under this
program are expected to continue through 2014.
In addition to these agreements, in July 2010, we sold 2,941,176 shares of our common stock to Toyota at our IPO price of $17.00 per
share.
Panasonic
Panasonic is a supplier of battery cells for our battery packs. In January 2010, we announced that we were collaborating with Panasonic on
the development of next-generation electric vehicle cells based on the 18650 form factor and nickel-based lithium ion chemistry. In October
2011, we finalized a supply agreement for these battery cells. The agreement supplies us with battery cells to build more than 80,000 vehicles
over the next four years.
In November 2010, we sold 1,418,573 shares of our common stock to an entity affiliated with Panasonic Corporation at a price of $21.15
per share, which was the average of the trading highs and lows of our common stock from October 25 to October 29, 2010.
Governmental Programs, Incentives and Regulations
United States Department of Energy Loans
On January 20, 2010, we entered into a loan facility with the Federal Financing Bank (FFB) and the United States Department of Energy
(DOE), under the DOE’s Advanced Technology Vehicles Manufacturing Loan Program, as set forth in Section 136 of the Energy Independence
and Security Act of 2007 (ATVM Program). We refer to such loan facility including amendments thereto, as the DOE Loan Facility. Under the
DOE Loan Facility, FFB made available to us two multi-draw term loan facilities in an aggregate principal amount of $465.0 million and the
DOE agreed to reimburse FFB for any liabilities, losses, costs or expenses incurred by FFB with respect to the term loan facilities. In August,
2012, we made our final draw under the DOE Loan Facility. We began repayment of the DOE Loan Facility on December 15, 2012.
In connection with the DOE Loan Facility, we have also issued the DOE a warrant to purchase up to 3,085,011 shares of our common
stock at an exercise price of $7.54 per share and a warrant to purchase up to 5,100 shares of our common stock at an exercise price of $8.94 per
share. Beginning on December 15, 2018 and until December 14, 2022, the shares subject to purchase under these warrants will become
exercisable in quarterly amounts depending on the average outstanding balance of the loan during the prior quarter. These warrants may be
exercised until December 15, 2023. If we prepay or repay the DOE Loan Facility in full by the recently revised maturity date, no shares will be
exercisable under these warrants and the warrants will expire pursuant to their terms, except in the case of an event of default, which could
accelerate the vesting. For more information on the recent amendment to the DOE Loan Facility, see Note 15 (Subsequent Events) to our
Consolidated Financial Statements included in this Annual Report on Form 10-K under Item 8. Financial Statements and Supplementary Data.
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For more information on the DOE Loan Facility, see Note 8 to our Consolidated Financial Statements included in this Annual Report on
Form 10-K under Item 8. Financial Statements and Supplementary Data.
California Alternative Energy and Advanced Transportation Financing Authority Tax Incentives
In December 2009, we finalized an arrangement with the California Alternative Energy and Advanced Transportation Financing Authority
(CAEATFA) that will result in an exemption from California state sales and use taxes for up to $320 million of manufacturing equipment. To the
extent all of this equipment is purchased and would otherwise be subject to California state sales and use tax, we believe this incentive would
result in tax savings by us of up to approximately $31 million over the period starting in December 2009 and ending in December 2013. The
equipment purchases may be used only for three purposes: (i) to establish our production facility for Model S in California, (ii) to upgrade our
Palo Alto powertrain production facility, and (iii) to expand our current Tesla Roadster assembly operations at our Menlo Park facility. In
January 2012, we finalized an additional agreement with CAEATFA that will result in an exemption from California state sales and use taxes for
up to $292 million of manufacturing equipment. To the extent all of this equipment is purchased and would otherwise be subject to California
state sales and use tax, we believe this incentive would result in tax savings by us of up to approximately $24 million over the period starting in
December 2011 and ending in March 2015. The equipment purchases may be used only for two purposes: (i) to develop the Model X crossover
vehicle and its production capacity in California and, (ii) to further upgrade our powertrain production facilities in California.
Regulatory Credits
In connection with the delivery and placement into service of our zero emission vehicles in the United Sates, we have earned and will
continue to earn various tradable regulatory credits that can be sold to other manufacturers.
Under California’s Low-Emission Vehicle Regulations and those of states that have adopted the California standards, vehicle
manufacturers are required to ensure that a portion of the vehicles delivered for sale in those states during each model year are zero emission
vehicles. Currently, the states of Arizona, California, Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York,
Oregon, Rhode Island and Vermont have such laws in effect. These laws provide that a manufacturer of may earn credits, referred to as ZEV
credits, if they produce more zero emission vehicles than the minimum quantity required by those laws. Those manufacturers with a surplus of
credits may sell those excess credits to other manufacturers who can then apply such credits to comply with the regulatory requirements,
including making up for deficits. As a manufacturer of solely of zero emission vehicles, we have no minimum requirement, and as a result, we
earn ZEV credits on each vehicle sold in such states. We have entered into agreements with other automobile manufacturers to sell the ZEV
credits that we earn. Recently, California passed amendments to the ZEV mandate that would require all large volume manufacturers (those
manufacturers selling 20,000 or more vehicles in California in 2018) to increase the number of zero emission vehicles sold starting in
2018. Under the new requirements, by 2025 up to 15.4% of each large volume manufacturers’ fleet must be made of zero emission vehicles. All
states that have adopted the California program will amend their programs to conform to the new California standards.
Additionally, under the Environmental Protection Agency’s (EPA) national greenhouse gas (GHG) emission standards, vehicle
manufacturers are required to meet fleet-wide average carbon dioxide emissions standards for cars and trucks at increasingly lower levels
annually from 2012 – 2025. Those manufacturers whose fleet wide average fails to meet such standards have a deficit in their emission
profile. Those manufacturers whose fleet wide average performs better than such standards may earn credits. Manufacturers may sell excess
credits to other manufacturers who can apply such credits to comply with these regulatory requirements. As a manufacturer solely of zero
emission vehicles, we earn the full amount of GHG credits established by the standards on each vehicle sold. We have entered into agreements
with another automobile manufacturer to sell the credits that we earn.
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We have entered into contracts for the sale of ZEV and GHG credits with several automotive manufacturers. For the years ended
December 31, 2012, 2011 and 2010, we earned revenue from the sale of ZEV and GHG credits of $40.5 million, $2.7 million and $2.8 million,
respectively. Our current agreements provide for the sale of a portion of the total ZEV credits that we will earn from the sale of vehicles that we
plan to manufacture in 2013. Our current agreements also provide for sale of substantially all of the GHG credits we will earn from the sale of
vehicles that we manufacture in 2013 and 2014.
Regulation—Vehicle Safety and Testing
Our vehicles are subject to, and the Tesla Roadster complies with, or is exempt from, numerous regulatory requirements established by the
National Highway Traffic Safety Administration (NHTSA), including all applicable United States federal motor vehicle safety standards
(FMVSS). The Model S fully complies with all FMVSSs without the need for any exemptions. As a manufacturer, we must self-certify that a
vehicle meets or otherwise obtain an exemption from all applicable FMVSSs, as well as the NHTSA bumper standard, before the vehicle can be
imported into or sold in the United States. There are numerous FMVSSs that apply to our vehicles. Examples of these requirements include:
•
Crash-worthiness requirements —including applicable and appropriate level of vehicle structure and occupant protection in frontal,
side and interior impacts including through use of equipment such as seat belts and airbags which must satisfy applicable
requirements;
•
Crash avoidance requirements —including appropriate steering, braking and equipment requirements, such as, headlamps, tail
lamps, and other required lamps, all of which must conform to various photometric and performance requirements;
•
Electric vehicle requirements —limitations on electrolyte spillage, battery retention, and avoidance of electric shock following
specified crash tests;
•
Windshield defrosting and defogging —defined zones of the windshield must be cleared within a specified timeframe; and
•
Rearview mirror requirements —rearward areas that must be visible to the driver via the mirrors.
Due to the limited number of Roadsters originally produced, we applied for, and were granted, exemptions from certain advanced air bag
and electronic stability control requirements, which applied to Tesla Roadsters manufactured through November 7, 2011. For Model S, we have
certified the vehicle as compliant with all U.S. safety standards without exemptions. Under U.S. law, we are required to certify compliance with,
or obtain exemption from all applicable federal motor vehicle safety standards and we have done so with respect to each vehicle we have offered
for sale in the United States. Based on testing, engineering analysis, and other information, we have certified that the Tesla Roadster complies
with, or is exempt from all applicable NHTSA standards in effect at the time of manufacture by affixing a certification label to each Tesla
Roadster sold. Based on testing, engineering analysis and other information we have certified the Tesla Model S as complying with all applicable
NHTSA standards in effect at the time of manufacture by affixing a certification label to each Model S sold.
We are also required to comply with other requirements of federal laws administered by NHTSA, including the Corporate Average Fuel
Economy standards, Theft Prevention Act requirements, consumer information labeling requirements, early warning reporting requirements
regarding warranty claims, field reports, death and injury reports and foreign recalls, and owner’s manual requirements.
Our vehicles sold in Europe are subject to European Union safety testing regulations. Many of those regulations, referred to as European
Union Whole Vehicle Type Approval (WVTA), are different from the federal motor vehicle safety standards applicable in the United States and
may require redesign and/or retesting. Our Tesla Roadsters are currently approved for sale on a limited basis in the European Union via the
Small
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Series WVTA, which permits the manufacture and sale in the European Union of no more than 1,000 vehicles per year. Since we have fewer
than 1,000 Tesla Roadsters left to sell, we have no plans to commence testing our Tesla Roadsters for the WVTA to assure compliance with the
European Union requirements to permit unlimited sales. Similarly, Australia and Japan have additional testing regulations applicable to high
volume manufacturers. We also plan to keep Australian and Japanese sales of our Tesla Roadsters at a low volume, and have no plans to comply
with the Australian and Japanese requirements to permit high volume sales in these jurisdictions. For Model S, we plan to conduct full EU
WVTA homologation. Based on results from efforts currently underway, we believe Model S will be able to meet all applicable EU standards.
We also plan to introduce Model S vehicles in other markets such as China, Japan, and Australia. Plans are currently underway to modify our
vehicles to meet the homologation standards for those countries.
The Federal Trade Commission (FTC) requires us to calculate and display the range of our electric vehicles on a label we affix to the
vehicle’s window. The FTC specifies that we follow testing requirements set forth by the Society of Automotive Engineers (SAE) which further
requires that we test using the United States EPA’s combined city and highway testing cycles. In July 2011, the EPA announced new energy
efficiency testing methodologies and labeling requirements for electric vehicles. These new requirements, when applied to our vehicles, resulted
in a rated range of 265 miles for the 85 kWh battery pack equipped Model S and a rated range of 208 miles for the 60 kWh battery pack
equipped Model S. This was a reduction from the advertised 300 mile and 230 mile range of these vehicles, respectively, utilizing methodologies
that estimated the range of the vehicles at a steady speed of 55 miles per hour. We expect the FTC to issue amended rules to conform to the EPA
standards, which will result in FTC labels mirroring the current EPA label.
The Automobile Information and Disclosure Act requires manufacturers of motor vehicles to disclose certain information regarding the
manufacturer’s suggested retail price, optional equipment and pricing. In addition, the Act allows inclusion of city and highway fuel economy
ratings, as determined by EPA, as well as crash test ratings as determined by NHTSA if such tests are conducted.
Regulation—EPA Emissions & Certificate of Conformity
The Clean Air Act requires that we obtain a Certificate of Conformity issued by the EPA and a California Executive Order issued by the
California Air Resources Board (CARB) with respect to emissions for our vehicles, including Model S. The Certificate of Conformity is required
for vehicles sold in states covered by the Clean Air Act’s standards and both the Certificate of Conformity and the Executive Order is required
for vehicles sold in states that have sought and received a waiver from the EPA to utilize California standards. The California standards for
emissions control for certain regulated pollutants for new vehicles and engines sold in California are set by CARB. States that have adopted the
California standards as approved by EPA also recognize the Executive Order for sales of vehicles.
Regulation—Battery Safety and Testing
Our battery pack conforms with mandatory regulations that govern transport of “dangerous goods” that may present a risk in
transportation, which includes lithium-ion batteries. The governing regulations, which are issued by the Pipeline and Hazardous Materials Safety
Administration (PHMSA) are based on the UN Recommendations on the Safe Transport of Dangerous Goods Model Regulations, and related
UN Manual Tests and Criteria. The regulations vary by mode of transportation when these items are shipped such as by ocean vessel, rail, truck,
or by air.
We have completed the applicable transportation tests for our prototype and production battery packs demonstrating our compliance with
the UN Manual of Tests and Criteria, including:
•
Altitude simulation —simulating air transport;
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•
Thermal cycling —assessing cell and battery seal integrity;
•
Vibration —simulating vibration during transport;
•
Shock —simulating possible impacts during transport; and
•
External short circuit —simulating an external short circuit.
We also subject our battery packs to the appropriate tests specified in the Society of Automotive Engineers (SAE) J2464 and J2929 which
include further tests such as immersion, humidity, and exposure to fire.
We use lithium metal oxide cells in our battery packs. The cells do not contain any lead, mercury, cadmium, or other hazardous materials,
heavy metals, or any toxic materials. Our battery packs include certain packaging materials which contain trace amounts of various hazardous
chemicals whose use, storage and disposal is regulated under federal law. We currently have an agreement with a third party battery recycling
company to recycle our battery packs. If a customer wishes to dispose of a battery pack from one of our vehicles, we anticipate accepting the
depleted battery from the customer without any additional charge.
Automobile Manufacturer and Dealer Regulation
State law regulates the manufacture, distribution and sale of automobiles, and generally requires motor vehicle manufacturers and dealers
to be licensed. To the extent possible, we plan to secure dealer licenses (or the equivalent of a dealer license) and engage in activities as a motor
vehicle dealer in so far as we are permitted to do so as we open additional Tesla stores and service centers. Some states do not permit automobile
manufacturers to be licensed as dealers or to act in the capacity of a dealer. To sell vehicles to residents of states where we are not licensed as a
dealer, to the extent permitted by local law, both the actual sale would generally have to occur out of state. In this scenario, it is possible that
activities related to marketing, advertising, taking orders, taking reservations and reservation payments, and delivering vehicles could be viewed
by a state as conducting unlicensed activities in the state or otherwise violating the state’s motor vehicle industry laws. Regulators in these states
may require us to hold and meet the requirements of appropriate dealer or other licenses and, in states in which manufacturers are prohibited
from acting as dealers, may otherwise prohibit or impact our planned activities.
In jurisdictions where we do not have a Tesla store, a customer may try to purchase our vehicles over the internet. However, some states
have laws providing that a manufacturer cannot deliver a vehicle to a resident of such state except through a dealer licensed to do business in that
state which may be interpreted to require us to open a store in such state in order to sell vehicles to its residents. In some states where we have
opened a viewing “gallery” that is not a full retail location, it is possible that a state regulator could take the position that activities at our gallery
constitute an unlicensed motor vehicle dealership and thereby violates applicable manufacturer-dealer laws. Although we would prefer that a
state regulator address any concerns by discussing such concerns with us and requesting voluntary compliance, a state could also take action
against us, including levying fines or requiring that we refrain from certain activities. In addition, some states have requirements that service
facilities be available with respect to vehicles sold in the state, which may be interpreted to also require that service facilities be available with
respect to vehicles sold over the internet to residents of the state thereby limiting our ability to sell vehicles in states where we do not maintain
service facilities.
The foregoing examples of state laws governing the sale of motor vehicles are just some of the regulations we face as we sell our vehicles.
In many states, the application of state motor vehicle laws to our specific sales model is largely without precedent, particularly with respect to
sales over the internet, and would be determined by a fact specific analysis of numerous factors, including whether we have a physical presence
or employees in the applicable state, whether we advertise or conduct other activities in the applicable state, how the sale transaction is
structured, the volume of sales into the state, and whether the state in question prohibits manufacturers from acting as dealers. As a result of the
fact specific and untested nature of these issues, and the fact that applying these laws intended for the traditional automobile distribution model
to our sales model allows
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for some interpretation and discretion by the regulators, state legal prohibitions may prevent us from selling to consumers in such state.
California laws, and potentially the laws of other states, restrict the ability of licensed dealers to advertise or take deposits for vehicles
before they are available. In November 2007, we became aware that the New Motor Vehicle Board of the California Department of
Transportation has considered whether our reservation and advertising policies comply with these laws. To date, we have not received any
communications on this topic from the New Motor Vehicle Board or the Department of Motor Vehicles (DMV) which has the power to enforce
these laws. There can be no assurance that the DMV will not take the position that our vehicle reservation or advertising practices violate the
law. We expect that if the DMV determines that we may have violated the law, it would initially discuss its concerns with us and request
voluntary compliance. If we are ultimately found to be in violation of California law, we might be precluded from taking reservation payments,
and the DMV could take other actions against us, including levying fines and requiring us to refund reservation payments. Resolution of any
inquiry may also involve restructuring certain aspects of the reservation program. The DMV also has the power to suspend licenses to
manufacture and sell vehicles in California, following a hearing on the merits, which it has typically exercised only in cases of significant or
repeat violations and/or a refusal to comply with DMV directions.
Certain states may have specific laws which apply to dealers, or manufacturers selling directly to consumers, or both. For example, the
state of Washington requires that reservation payments or other payment received from residents in the state of Washington must be placed in a
segregated account until delivery of the vehicle, which account must be unencumbered by any liens from creditors of the dealer and may not be
used by the dealer. Consequently, we established a segregated account for reservation payments in the state of Washington in January 2010.
There can be no assurance that other state or foreign jurisdictions will not require similar segregation of reservation payment received from
customers. Our inability to access these funds for working capital purposes could harm our liquidity.
Furthermore, while we have performed an analysis of the principal laws in the European Union relating to our distribution model and
believe we comply with such laws, we have not performed a complete analysis in all foreign jurisdictions in which we may sell vehicles.
Accordingly, there may be laws in jurisdictions we have not yet entered or laws we are unaware of in jurisdictions we have entered that may
restrict our vehicle reservation practices or other business practices. Even for those jurisdictions we have analyzed, the laws in this area can be
complex, difficult to interpret and may change over time.
In addition to licensing laws, specific laws and regulations in each of the states (and their interpretation by regulators) may limit or
determine how we sell, market, advertise, and otherwise solicit sales, take orders, take reservations and reservation payments, deliver, and
service vehicles for consumers and engage in other activities in that state. While we have performed an analysis of laws in certain jurisdictions in
which we have Tesla stores, we have not performed a complete analysis in all jurisdictions in which we may sell vehicles. Accordingly, there
may be laws in jurisdictions we have not yet entered that may restrict our vehicle reservation practices or other business practices.
Competition
Competition in the automotive industry is intense and evolving. We believe the impact of new regulatory requirements for occupant safety
and vehicle emissions, technological advances in powertrain and consumer electronics components, and shifting customer needs and
expectations are causing the industry to evolve in the direction of electric-based vehicles. We believe the primary competitive factors in our
markets include but are not limited to:
•
technological innovation;
•
product quality and safety;
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•
service options;
•
product performance;
•
design and styling;
•
product price; and
•
manufacturing efficiency.
We believe that our vehicles compete in the market both based on their traditional segment classification as well as based on their
propulsion technology. Within the electric-based vehicle segment, there are three primary means of powertrain electrification which will
differentiate various competitors in this market:
•
Electric Vehicles are vehicles powered completely by a single on-board energy storage system (battery pack or fuel cell) which is
refueled directly from an electricity source. Both the Tesla Roadster and Model S are examples of electric vehicles.
•
Plug-in Hybrid Vehicles are vehicles powered by both a battery pack with an electric motor and an internal combustion engine which
can be refueled both with traditional petroleum fuels for the engine and electricity for the battery pack. The internal combustion
engine can either work in parallel with the electric motor to power the wheels, such as in a parallel plug-in hybrid vehicle, or be used
only to recharge the battery, such as in a series plug-in hybrid vehicle like the Chevrolet Volt.
•
Hybrid Electric Vehicles are vehicles powered by both a battery pack with an electric motor and an internal combustion engine but
which can only be refueled with traditional petroleum fuels as the battery pack is charged via regenerative braking, such as used in a
hybrid electric vehicle like the Toyota Prius.
The worldwide automotive market, particularly for alternative fuel vehicles, is highly competitive today and we expect it will become even
more so in the future. Prior to the introduction of the Nissan Leaf in December 2010, no mass produced performance highway-capable electric
vehicles were being sold in the United States. In Japan, Mitsubishi has been selling its electric iMiEV since April 2010. We expect additional
competitors to enter the United States and Europe within the next several years, and as they do so, we expect that we will experience significant
competition. With respect to our Tesla Roadster, we currently face strong competition from established automobile manufacturers, including
manufacturers of high-performance vehicles, such as Porsche and Ferrari. In addition, upon the launch of our Model S sedan, we will face
competition from existing and future automobile manufacturers in the extremely competitive premium sedan market, including Audi, BMW,
Lexus and Mercedes.
Many established and new automobile manufacturers have entered or have announced plans to enter the alternative fuel vehicle market.
For example, Nissan introduced the Nissan Leaf, a fully electric vehicle in December 2010 and Ford introduced the pure electric Ford Focus and
plug-in hybrid Ford C-Max Energi and Ford Fusion Energi in 2012. In addition, several manufacturers, including General Motors, Toyota, Ford,
and Honda, are each selling hybrid vehicles, and certain of these manufacturers have announced plug-in versions of their hybrid vehicles. For
example, in December 2010, General Motors introduced the Chevrolet Volt, which is a plug-in hybrid vehicle that operates purely on electric
power for a limited number of miles, at which time an internal combustion engine engages to recharge the battery.
Moreover, it has been reported that BMW, Daimler, Lexus, Audi, Fiat, Renault and Volkswagen are also developing electric vehicles.
Several new start-ups have also announced plans to enter the market for performance electric vehicles, although none of these have yet come to
market. Finally, electric vehicles have already been brought to market in China and other foreign countries and we expect a number of those
manufacturers to enter the United States market as well.
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Most of our current and potential competitors have significantly greater financial, technical, manufacturing, marketing and other resources
than we do and may be able to devote greater resources to the design, development, manufacturing, distribution, promotion, sale and support of
their products. Virtually all of our competitors have more extensive customer bases and broader customer and industry relationships than we do.
In addition, almost all of these companies have longer operating histories and greater name recognition than we do. Our competitors may be in a
stronger position to respond quickly to new technologies and may be able to design, develop, market and sell their products more effectively. We
believe our exclusive focus on electric vehicles and electric vehicle components, as well as our history of vehicle development and production,
are the basis on which we can compete in the global automotive market in spite of the challenges posed by our competition; however, we have a
limited history of operations.
Intellectual Property
Our success depends, at least in part, on our ability to protect our core technology and intellectual property. To accomplish this, we rely on
a combination of patents, patent applications, trade secrets, including know-how, employee and third party nondisclosure agreements, copyright
laws, trademarks, intellectual property licenses and other contractual rights to establish and protect our proprietary rights in our technology. As
of December 31, 2012, we had 117 issued patents and more than 258 pending patent applications with the United States Patent and Trademark
Office and internationally in a broad range of areas. Our issued patents start expiring in 2026. We intend to continue to file additional patent
applications with respect to our technology. We do not know whether any of our pending patent applications will result in the issuance of patents
or whether the examination process will require us to narrow our claims. Even if granted, there can be no assurance that these pending patent
applications will provide us with protection.
Seasonality
Sales of the Tesla Roadster have fluctuated on a seasonal basis with increased sales during the spring and summer months in our second
and third fiscal quarters relative to our fourth and first fiscal quarters. We note that, in general, automotive sales tend to decline over the winter
season and we anticipate that our sales of Model S, Model X and other electric vehicles we introduce in the future may have similar seasonality.
However, our limited operating history makes it difficult for us to judge the exact nature or extent of the seasonality of our business. We do not
expect our powertrain component sales and development services revenue to be impacted to a significant extent by seasonality.
Segment Information
We have determined that we operate as one reporting segment, which is the design, development, manufacturing and sales of electric
vehicles and electric powertrain components. For information regarding financial data by geographic areas, see Note 12 to our Consolidated
Financial Statements included in this Annual Report on Form 10-K under Item 8. Financial Statements and Supplementary Data.
Employees
As of December 31, 2012, we had approximately 2,964 full-time employees. None of our employees are currently represented by labor
unions or are covered by a collective bargaining agreement with respect to their employment. To date, we have not experienced any work
stoppages, and we consider our relationship with our employees to be good.
Available Information
We file or furnish periodic reports and amendments thereto, including our Annual Reports on Form 10-K, our Quarterly Reports on Form
10-Q and Current Reports on Form 8-K; proxy statements and other information
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with the Securities and Exchange Commission (SEC). Such reports, amendments, proxy statements and other information may be obtained by
visiting the Public Reference Room of the SEC at 100 F Street, NE, Washington, D.C. 20549. Information on the operation of the Public
Reference Room can be obtained by calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains a website ( www.sec.gov ) that contains
reports, proxy and information statements, and other information regarding issuers that file electronically. Our reports, amendments thereto,
proxy statements and other information are also made available, free of charge, on our investor relations website at ir.teslamotors.com as soon as
reasonably practicable after we electronically file or furnish such information with the SEC. The information posted on our website is not
incorporated by reference into this Annual Report on Form 10-K.
ITEM 1A.
RISK FACTORS
You should carefully consider the risks described below together with the other information set forth in this report, which could materially
affect our business, financial condition and future results. The risks described below are not the only risks facing our company. Risks and
uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial
condition and operating results.
Risks Related to Our Business and Industry
We may be unable to sustain our current level of production or deliveries of Model S, both of which could harm our business and
prospects.
We began manufacturing and delivering Model S in June 2012. We have very limited experience to date in high volume manufacturing of
our electric vehicles as we only recently reached full production of Model S. Our ability to maintain high volume Model S production will
depend upon a number of factors, including our suppliers’ ability to deliver quality parts to us in a timely manner, our ability to use our
manufacturing processes as planned for volume production while maintaining our desired quality levels and efficiently making design changes to
ensure consistently high quality. The Model S is an all new vehicle which we are producing with new employees using new equipment and
therefore our production processes are still maturing. To produce a vehicle that meets our quality standards requires us to carefully analyze each
step of our production plan, improve the efficiency of our manufacturing processes and continue to train our employees. Our suppliers also must
produce new products in sufficient quantities and quality levels to meet our demand. Certain suppliers have experienced delays in meeting our
demand and we continue to focus on supplier capabilities and constraints. Any disruption in maintaining our production level of Model S could
materially damage our brand, business, prospects, financial condition and operating results.
We have only recently increased our Model S delivery rates in the United States to match our current and anticipated Model S production
capacity. We have very limited experience in the high volume delivery of our Model S vehicles as we have recently reached our steady state
production rate of 400 vehicles produced per week. Furthermore, we plan to start European deliveries of the Model S this summer and Asian
deliveries later in 2013, but have limited experience delivering vehicles outside of the United States and thus may face difficulties meeting our
delivery plans in both Europe and Asia. If we are unable to maintain our weekly delivery rate to match our steady state production rate of Model
S, ramp up deliveries in Europe and Asia and sustain a high level of weekly Model S deliveries throughout the year, this could result in negative
publicity, damage our brand and have a material adverse effect on our business, prospects, financial condition and operating results.”
In addition, for Model S we are introducing a number of new manufacturing technologies and techniques, such as aluminum spot welding
systems, which have not been widely adopted in the automotive industry, and Model S has a number of new and unique design features, such as
a 17 inch display screen, newly designed retractable exterior door handles and a panoramic roof, each of which poses unique manufacturing
challenges.
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Model S production and deliveries will continue to require significant resources and we may experience unexpected delays or difficulties that
could harm our ability to maintain full manufacturing capacity for Model S, or cause us to miss planned production targets, any of which could
have a material adverse effect on our business, prospects, operating results and financial condition. Additionally, sustaining high volume
production and doing so in a manner that avoids significant cost overruns, including as a result of factors beyond our control such as problems
with suppliers and vendors, may be difficult.
Our ability to sustain volume production and deliveries for Model S is subject to certain risks and uncertainties, including:
•
that our suppliers will be able to deliver components on a timely basis and in the necessary quantities, quality and at acceptable prices
to produce Model S in volume and reach our financial targets;
•
that we will be able to complete any necessary adjustments to the vehicle design or manufacturing processes of Model S in a timely
manner that meets our production plan and allows for high quality vehicles;
•
that we will not encounter parts quality issues before, during or after production of Model S;
•
that we will be able to schedule and complete deliveries at our planned volume production;
•
that the equipment or tooling which we have purchased or which we select will be able to accurately manufacture the vehicle within
specified design tolerances and will not suffer from unexpected breakdowns or damage which could negatively affect the rate needed
to produce vehicles in volume;
•
that we will be able to comply with environmental, workplace safety and similar regulations to operate our manufacturing facilities
and our business on our projected timeline;
•
that we will be able to maintain high quality controls as we transition to a higher level of in-house manufacturing process; and
•
that the information technology systems that we are currently expanding and improving upon will be effective to manage high
volume production.
Finally, detailed long-term testing of systems integration, performance and safety as well as long-term quality, reliability and durability
testing are ongoing and any negative results from such testing could cause production delays in Model S, cost increases or lower quality Model S
vehicles.
We are dependent on our suppliers, the vast majority of which are single source suppliers, and the inability of these suppliers to continue
to deliver, or their refusal to deliver, necessary components of our vehicles in a timely manner at prices, quality levels, and volumes
acceptable to us would have a material adverse effect on our business, prospects and operating results.
Model S contains numerous purchased parts which we source globally from over 200 direct suppliers, the vast majority of whom are
currently single source suppliers for these components. While we obtain components from multiple sources whenever possible, similar to other
automobile manufacturers, the vast majority of the components used in our vehicles are purchased by us from single sources. To date we have
not qualified alternative sources for most of the single sourced components used in our vehicles and we generally do not maintain long-term
agreements with our suppliers.
While we believe that we may be able to establish alternate supply relationships and can obtain or engineer replacement components for
our single source components, we may be unable to do so in the short term, or at all, at prices or costs that are favorable to us. In particular,
while we believe that we will be able to secure alternate sources of supply for most of our single sourced components in a relatively short time
frame, qualifying alternate suppliers or developing our own replacements for certain highly customized components of our vehicles may be time
consuming, costly and may force us to make additional modifications to a vehicle’s design.
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This supply chain exposes us to multiple potential sources of delivery failure or component shortages for Model S, as well as for our
powertrain component sales activities. For example, earthquakes similar to the one that occurred in Japan in March 2011 could negatively impact
our supply chain. We have in the past experienced source disruptions in our supply chains, including those relating to our slower-thananticipated ramp in our Model S production goals for 2012. We may experience additional delays in the future with respect to Model S and any
other future vehicle we may produce. In addition, because we do not have written agreements in place with all our suppliers, this may create
uncertainty regarding certain suppliers’ obligations to us, including but not limited to, those regarding warranty and product liability. Changes in
business conditions, wars, governmental changes and other factors beyond our control or which we do not presently anticipate, could also affect
our suppliers’ ability to deliver components to us on a timely basis. Furthermore, if we experience significant increased demand, or need to
replace certain existing suppliers, there can be no assurance that additional supplies of component parts will be available when required on terms
that are favorable to us, at all, or that any supplier would allocate sufficient supplies to us in order to meet our requirements or fill our orders in a
timely manner. In the past, we have replaced certain suppliers because of their failure to provide components that met our quality control
standards. The loss of any single or limited source supplier or the disruption in the supply of components from these suppliers could lead to
delays in vehicle deliveries to our customers, which could hurt our relationships with our customers and also materially adversely affect our
business, prospects and operating results.
Changes in our supply chain have resulted in the past, and may result in the future, in increased cost and delay. We have also experienced
cost increases from certain of our suppliers in order to meet our quality targets and development timelines as well as due to design changes that
we made, and we may experience similar cost increases in the future. Additionally, we are negotiating with existing suppliers for cost reductions,
seeking new and less expensive suppliers for certain parts, and attempting to redesign certain parts to make them cheaper to produce. If we are
unsuccessful in our efforts to control and reduce supplier costs, our operating results will suffer. Additionally, cost reduction efforts may
interrupt or harm our normal production processes, thereby harming Model S quality or reducing Model S production output.
Furthermore, a failure by our suppliers to provide the components in a timely manner or at the level of quality necessary to manufacture
our performance electric vehicles such as Model S could prevent us from fulfilling customer orders in a timely fashion which could result in
negative publicity, damage our brand and have a material adverse effect on our business, prospects, financial condition and operating results.
If we are unable to adequately reduce the manufacturing costs of Model S or otherwise control the costs associated with operating our
business, our business, financial condition, operating results and prospects will suffer.
Our production costs for Model S have been high due to start-up costs at the Tesla Factory, manufacturing inefficiencies including low
absorption of fixed manufacturing costs, higher logistics costs due to the immaturity of our supply chain, and higher initial prices for component
parts during the initial period after the launch and ramp of Model S. As we are now producing cars at our steady state production volume of 400
vehicles per week, manufacturing costs have started to fall. While we expect further cost reduction efforts undertaken by both us and our
suppliers will continue to reduce costs during 2013, there is no guarantee that we will be able to achieve planned cost reductions from our
various cost savings initiatives, and the failure to achieve such savings would negatively affect our ability to reach our gross margin and
profitability goals.
We incur significant costs related to procuring the raw materials required to manufacture our high-performance electric cars, assembling
vehicles and compensating our personnel. We may also incur substantial costs in increasing the production capability of Model S and powertrain
manufacturing facilities, each of which could potentially face cost overruns. If Model S tooling, production equipment and parts are insufficient
for use in Model X, perhaps as a result of a lower level of commonality between the two vehicles than we currently anticipate, our costs related
to the production of Model X may exceed expectations.
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Additionally, in the future we may be required to incur substantial marketing costs and expenses to promote our vehicles, including
through the use of traditional media such as television, radio and print, even though our marketing expenses to date have been relatively limited
as we have to date relied upon unconventional marketing efforts. If we are unable to keep our operating costs aligned with the level of revenues
we generate, our operating results, business and prospects will be harmed. Furthermore, many of the factors that impact our operating costs are
beyond our control. For example, the costs of our raw materials and components, such as lithium-ion battery cells or aluminum used to produce
body panels, could increase due to shortages as global demand for these products increases. Indeed, if the popularity of electric vehicles exceeds
current expectations without significant expansion in battery cell production capacity and advancements in battery cell technology, shortages
could occur which would result in increased materials costs to us.
Our long-term success will be dependent upon our ability to design and achieve market acceptance of new vehicle models, specifically
Model S and new vehicle models such as Model X.
Our long-term success is dependent on market acceptance of two new vehicles: the Model S sedan and the Model X crossover. While
initial reviews of Model S from both the press and customers have been positive, there is no guarantee that Model S will be successfully
accepted by the general public in the long-term.
Additionally, there can be no assurance that we will be able to design future electric vehicles that will meet the expectations of our
customers or that our future models, including Model X, will become commercially viable. We only recently publicly revealed an early
prototype of the Model X. To the extent that we are not able to build Model X to the expectations created by the early prototype and our
announced specifications, customers may cancel their reservations, our future sales could be harmed and investors may lose confidence in us.
Furthermore, historically, automobile customers have come to expect new and improved vehicle models to be introduced frequently. In order to
meet these expectations, we may in the future be required to introduce on a regular basis new vehicle models as well as enhanced versions of
existing vehicle models. As technologies change in the future for automobiles in general and performance electric vehicles specifically, we will
be expected to upgrade or adapt our vehicles and introduce new models in order to continue to provide vehicles with the latest technology and
meet customer expectations. To date, we have limited experience simultaneously designing, testing, manufacturing, upgrading, adapting and
selling our electric vehicles.
Our future growth is dependent upon consumers’ willingness to adopt electric vehicles.
Our growth is highly dependent upon the adoption by consumers of, and we are subject to an elevated risk of any reduced demand for,
alternative fuel vehicles in general and electric vehicles in particular. If the market for electric vehicles does not develop as we expect or
develops more slowly than we expect, our business, prospects, financial condition and operating results will be harmed. The market for
alternative fuel vehicles is relatively new, rapidly evolving, characterized by rapidly changing technologies, price competition, additional
competitors, evolving government regulation and industry standards, frequent new vehicle announcements and changing consumer demands and
behaviors.
Other factors that may influence the adoption of alternative fuel vehicles, and specifically electric vehicles, include:
•
perceptions about electric vehicle quality, safety (in particular with respect to lithium-ion battery packs), design, performance and
cost, especially if adverse events or accidents occur that are linked to the quality or safety of electric vehicles, such as those related to
the Chevrolet Volt battery pack fires;
•
perceptions about vehicle safety in general, in particular safety issues that may be attributed to the use of advanced technology,
including vehicle electronics and regenerative braking systems;
•
negative perceptions of electric vehicles, such as that they are more expensive than non-electric vehicles and are only affordable with
government subsidies;
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•
the limited range over which electric vehicles may be driven on a single battery charge and the effects of weather on this range;
•
the decline of an electric vehicle’s range resulting from deterioration over time in the battery’s ability to hold a charge;
•
varied calculations for driving ranges achievable by EVs,
•
our capability to rapidly swap out the Model S battery pack and the development of specialized public facilities to perform such
swapping, which do not currently exist but which we may introduce sometime in 2013;
•
concerns about electric grid capacity and reliability, which could derail our past and present efforts to promote electric vehicles as a
practical solution to vehicles which require gasoline;
•
concerns by potential customers that if their battery pack is not charged properly, it may become unusable and may need to be
replaced;
•
the availability of alternative fuel vehicles, including plug-in hybrid electric vehicles;
•
improvements in the fuel economy of the internal combustion engine;
•
the availability of service for electric vehicles;
•
consumers’ desire and ability to purchase a luxury automobile or one that is perceived as exclusive;
•
the environmental consciousness of consumers;
•
volatility in the cost of oil and gasoline;
•
consumers’ perceptions of the dependency of the United States on oil from unstable or hostile countries;
•
government regulations and economic incentives promoting fuel efficiency and alternate forms of energy;
•
access to charging stations, standardization of electric vehicle charging systems and consumers’ perceptions about convenience and
cost to charge an electric vehicle;
•
the availability of tax and other governmental incentives to purchase and operate electric vehicles or future regulation requiring
increased use of nonpolluting vehicles;
•
perceptions about and the actual cost of alternative fuel; and
•
macroeconomic factors.
In addition, reports have suggested the potential for extreme temperatures to affect the range or performance of electric vehicles. Based on
internal testing, we estimate that our Tesla Roadster, for example, would have a 5-10% reduction in range when operated in -20°C temperatures.
To the extent customers have concerns about such reductions or third party reports which suggest reductions in range greater than our estimates
gain widespread acceptance, our ability to market and sell our vehicles, particularly in colder climates, may be adversely impacted.
Additionally, we will become subject to regulations that require us to alter the design of our vehicles, which could negatively impact
consumer interest in our vehicles. For example, our electric vehicles make less noise than internal combustion vehicles. Due to concerns about
overly quiet vehicles and vision impaired pedestrians, in January 2011, Congress passed and the President signed the Pedestrian Safety
Enhancement Act of 2010. The new law requires NHTSA to establish minimum sounds for electric vehicles and hybrid electric vehicles when
travelling at low speeds. NHTSA plans to finalize a rule early next year with an effective date by September 1, 2014. This will begin a three year
phase-in schedule for establishing these minimum sounds in all electric and hybrid electric
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vehicles. Adding this artificial noise may cause current or potential customers not to purchase our electric vehicles, which would materially
adversely affect our business, operating results, financial condition and prospects.
Our limited operating history makes evaluating our business and future prospects difficult, and may increase the risk of your investment.
You must consider the risks and difficulties we face as an early stage company with a limited operating history. If we do not successfully
address these risks, our business, prospects, operating results and financial condition will be materially and adversely harmed. We were formed
in July 2003 and began delivering our first vehicle, the Tesla Roadster, in early 2008. We only began producing our second electric vehicle,
Model S, in June 2012 and our production processes continue to mature.
We have historically derived our revenues principally from sales of the Tesla Roadster and from electric powertrain development services
and sales. Model S has become the primary contributor to our revenue starting in the fourth quarter of 2012. We intend in the longer term to
derive substantial revenues from the sales of Model S, Model X and future electric vehicles. We have only a very limited operating history with
respect to Model S. While we expect Model S cost reduction efforts undertaken by both us and our suppliers will continue to reduce the costs of
manufacturing Model S during 2013, the success and timing of such efforts is difficult to predict, which limits our ability to precisely forecast
the cost of producing Model S. Further, we have only recently produced an early prototype of the Model X crossover. Our vehicle design and
our engineering, manufacturing and component supply plans for Model S may continue to be adjusted. In addition, our powertrain component
sales, development services revenue and powertrain research and development compensation have been almost entirely generated under
arrangements with Daimler AG (Daimler) and Toyota Motor Corporation (Toyota). It is difficult to predict our future revenues and appropriately
budget for our expenses, and we have limited insight into trends that may emerge and affect our business. In the event that actual results differ
from our estimates or we adjust our estimates in future periods, our operating results and financial position could be materially affected.
We may fail to meet our publicly announced guidance or other expectations about our business, which would cause our stock price to
decline.
We provide guidance regarding our expected financial and business performance including our projections regarding the number of
vehicles we hope to sell in future periods and our anticipated future revenues and gross margins. Correctly identifying the key factors affecting
business conditions and predicting future events is inherently an uncertain process. Our guidance is based in part on assumptions which include,
but are not limited to, assumptions regarding:
•
our ability to achieve anticipated production and sales volumes and projected average sales prices for Model S;
•
supplier and commodity-related costs;
•
planned cost reductions; and
•
our ability to recognize revenue from Daimler and from selling regulatory credits to other automobile manufacturers.
Such guidance may not always be accurate or may vary from actual results due to our inability to meet our assumptions and the impact on
our financial performance that could occur as a result of the various risks and uncertainties to our business as set forth in these risk factors. We
offer no assurance that such guidance will ultimately be accurate, and investors should treat any such guidance with appropriate caution. If we
fail to meet our guidance or if we find it necessary to revise such guidance, even if such failure or revision is seemingly insignificant, investors
and analysts may lose confidence in us and the market value of our common stock could be materially adversely affected.
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We may be unable to sell additional regulatory credits, such as zero emission vehicle (ZEV) and greenhouse gas emission (GHG) credits,
to other automobile manufacturers, which would negatively impact our revenues, margins and our ability to reach profitability.
Our revenues to date have included amounts we receive from selling certain regulatory credits such as ZEV and GHG credits to other
automobile manufacturers. While we continue our efforts to sign agreements with a limited pool of automakers to sell them ZEV, GHG and
other regulatory credits, we may not be able to enter into new agreements to sell any or all our available regulatory credits related to Model S,
Model X or our other future vehicles, which would negatively impact our revenues and margins. Additionally, any inability to sell additional
regulatory credits may negatively impact our ability to reach or maintain profitability in the short term.
Our vehicles make use of lithium-ion battery cells, which have been observed to catch fire or vent smoke and flame, and such events have
raised concerns, and future events may lead to additional concerns, about the batteries used in automotive applications.
The battery pack in the Tesla Roadster and Model S makes use of lithium-ion cells. We also currently intend to make use of lithium-ion
cells in battery packs that we sell to Toyota and Daimler as well as any future vehicles we may produce. On rare occasions, lithium-ion cells can
rapidly release the energy they contain by venting smoke and flames in a manner that can ignite nearby materials as well as other lithium-ion
cells. Highly publicized incidents of laptop computers and cell phones bursting into flames have focused consumer attention on the safety of
these cells. More recently, multiple Chevrolet Volt battery pack fires, followed by a government investigation into the cause of such fires
focused considerable public attention, as well as the attention of NHTSA, on the safety of electric vehicles.
These events have raised concerns about the batteries used in automotive applications. To address these questions and concerns, a number
of cell manufacturers are pursuing alternative lithium-ion battery cell chemistries to improve safety. We have designed the battery pack to
passively contain any single cell’s release of energy without spreading to neighboring cells and we are not aware of any such incident in our
customers’ vehicles. However, we have delivered only a limited number of Tesla Roadsters and Model S sedans to customers and have limited
field experience with our vehicles, especially Model S. We have also only delivered a limited number of battery packs to Toyota and Daimler.
Accordingly, there can be no assurance that a field or testing failure of our Model S or other battery packs that we produce will not occur, which
could damage the vehicle or lead to personal injury or death and may subject us to lawsuits. We may have to recall our vehicles or participate in
a recall of a vehicle that contains our battery packs, and redesign our battery packs, which would be time consuming and expensive. Also,
negative public perceptions regarding the suitability of lithium-ion cells for automotive applications or any future incident involving lithium-ion
cells such as a vehicle or other fire, even if such incident does not involve us, could seriously harm our business.
In addition, we store a significant number of lithium-ion cells at our manufacturing facility. Any mishandling of battery cells may cause
disruption to the operation of our facilities. While we have implemented safety procedures related to the handling of the cells, there can be no
assurance that a safety issue or fire related to the cells would not disrupt our operations. Such damage or injury would likely lead to adverse
publicity and potentially a safety recall. Moreover, any failure of a competitor’s electric vehicle, especially those that use a high volume of
commodity cells similar to the Tesla Roadster or Model S, may cause indirect adverse publicity for us and our electric vehicles. Such adverse
publicity would negatively affect our brand and harm our business, prospects, financial condition and operating results.
If our vehicles or vehicles that contain our powertrains fail to perform as expected, or if we suffer product recalls for Model S, our ability
to develop, market and sell our electric vehicles could be harmed.
Our vehicles, or vehicles that contain our powertrains such as the Toyota RAV4 EV or future Daimler vehicles, may contain defects in
design and manufacture that may cause them not to perform as expected or that
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may require repair. For example, our vehicles use a substantial amount of software code to operate. Software products are inherently complex
and often contain defects and errors when first introduced, and changes to software may have unexpected effects. Recent Model S issues
experienced by customers include those related to the software for the 17 inch display screen and the retractable exterior door handles and the
12V battery.
While we have performed extensive internal testing, we currently have a limited frame of reference by which to evaluate the long-term
performance of our battery packs, powertrains and vehicles. Specifically, we have only a limited amount of data by which to evaluate Model S,
upon which our business prospects depend, due to the fact that we only recently began production in June 2012 in limited quantities. There can
be no assurance that we will be able to detect and fix any defects in the vehicles prior to their sale to consumers.
We experienced product recalls in May 2009 and October 2010, both of which were unrelated to our electric powertrain. In May 2009, we
initiated a product recall after we determined that a condition caused by insufficient torquing of the rear inner hub flange bolt existed in some of
our Tesla Roadsters, as a result of a missed process during the manufacture of the Tesla Roadster glider, which is the partially assembled Tesla
Roadster that does not contain our electric powertrain. In October 2010, we initiated a product recall after the 12 volt, low voltage auxiliary cable
in a single vehicle chafed against the edge of a carbon fiber panel in the vehicle causing a short, smoke and possible fire behind the right front
headlamp of the vehicle. Although the cost of this recall was not material, we may experience additional recalls in the future, which could
adversely affect our brand in our target markets and could adversely affect our business, prospects and results of operations.
Our electric vehicles may not perform consistent with customers’ expectations or consistent with other vehicles currently available. For
example, our electric vehicles may not have the durability or longevity of current vehicles, and may not be as easy to repair as other vehicles
currently on the market. Additionally, while we have designed Model S with the intent to achieve an overall five star safety rating, NHTSA
testing of these vehicles is not scheduled until later this year and may not produce the anticipated results. Any product defects or any other
failure of our performance electric vehicles to perform as expected could harm our reputation and result in adverse publicity, lost revenue,
delivery delays, product recalls, product liability claims, harm to our brand and reputation, and significant warranty and other expenses, and
could have a material adverse impact on our business, financial condition, operating results and prospects.
We have a history of losses and have to deliver significant cost reductions to achieve profitability in 2013 and long-term commercial
success.
We incurred a net loss of $396.2 million for the year ended December 31, 2012. In addition, we have accumulated net losses of $1,065.6
million from our inception through December 31, 2012. We have had net losses in each quarter since our inception. Even if we are able to
successfully maintain our current Model S production levels, there can be no assurance that it will be commercially successful. In order to
achieve profitability in 2013 as well as long-term commercial success, we must continue to achieve our planned cost reductions and control our
operational costs while producing quality Model S vehicles at volume, maintain our Model S delivery rates to match our current and anticipated
Model S production capacity, maintain strong demand for Model S, and achieve our planned cost reductions and control our operational costs.
Failure to do one or more of these things could prevent us from reaching profitability.
Increases in costs, disruption of supply or shortage of raw materials, in particular lithium-ion cells, could harm our business.
We may experience increases in the cost or a sustained interruption in the supply or shortage of raw materials. Any such increase or supply
interruption could materially negatively impact our business, prospects, financial condition and operating results. We use various raw materials
in our business including aluminum, steel, nickel and copper. The prices for these raw materials fluctuate depending on market conditions and
global
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demand for these materials and could adversely affect our business and operating results. For instance, we are exposed to multiple risks relating
to price fluctuations for lithium-ion cells. These risks include:
•
the inability or unwillingness of current battery manufacturers to build or operate battery cell manufacturing plants to supply the
numbers of lithium-ion cells required to support the growth of the electric or plug-in hybrid vehicle industry as demand for such cells
increases;
•
disruption in the supply of cells due to quality issues or recalls by battery cell manufacturers;
•
an increase in the cost of raw materials, such as nickel used in lithium-ion cells, or aluminum used in the body of Model S; and
•
fluctuations in the value of the Japanese yen against the U.S. dollar as our battery cell purchases are currently denominated in yen.
Our business is dependent on the continued supply of battery cells for our vehicles’ battery packs as well as for the battery packs we
produce for other automobile manufacturers. While we believe several sources of the battery cells are available for such battery packs, we have
fully qualified only a limited number of suppliers for the cells used in such battery packs and have very limited flexibility in changing cell
suppliers. Any disruption in the supply of battery cells from such vendor could temporarily disrupt production of Model S and of the battery
packs we produce for other automobile manufacturers until such time as a different supplier is fully qualified. Furthermore, fluctuations or
shortages in petroleum and other economic conditions may cause us to experience significant increases in freight charges and raw material costs.
Substantial increases in the prices for our raw materials or prices charged to us, such as those charged by our battery cell manufacturers, would
increase our operating costs, and could reduce our margins if we cannot recoup the increased costs through increased electric vehicle prices.
There can be no assurance that we will be able to recoup increasing costs of raw materials by increasing vehicle prices. We have also recently
announced pricing in the U.S. for Model S. Any attempts to increase the announced prices in response to increased raw material costs could be
viewed negatively by our customers, result in cancellations of Model S reservations and could materially adversely affect our brand, image,
business, prospects and operating results.
The new labeling requirements for electric vehicles established by the United States Environmental Protection Agency require us to affix
a label to the vehicle’s window regarding vehicle range capabilities which differ from our previously announced range capabilities could
negatively impact our sales or harm our business.
In July 2011, the EPA amended the requirements for the fuel economy stickers that appear on new alternative fueled cars offered for sale
starting with model year 2013 (i.e., the Monroney label). Prior to these amended requirements, we advertised that we planned to offer Model S
with a variety of battery pack options, which we estimated would offer a range on a single charge of 160 miles, 230 miles, and 300 miles,
respectively, while traveling at a steady speed of 55 miles per hour. The EPA’s amended fuel economy sticker requirements, however, require us
to label Model S utilizing different energy efficiency testing methodologies based on five different test cycles (i.e., the 5-cycle test). Based on
these energy efficiency testing methodologies, the range of the Model S vehicle equipped with the largest 85 kWh battery pack has an EPA
certified range of 265 miles on a single charge. The Model S vehicle equipped with a 60 kWh battery pack has an EPA certified range of 208
miles on a single charge. Regardless of the range testing method, actual driving ranges will vary for many reasons, including driving conditions,
how customers drive and maintain their vehicles and external factors such as wind and elevation change. Variations in actual driving range
experienced by customers and not accurately reflected by EPA’s certified range could negatively impact customer perceptions and negatively
impact our vehicle sales.
Our success could be harmed by negative publicity regarding our company or our products, particularly Model S.
From time to time, our vehicles are evaluated by third parties. For example, the show Top Gear which airs on the British Broadcasting
Corporation did a review of the Tesla Roadster in 2008. Top Gear is one of the most
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watched automotive shows in the world with an estimated 350 million viewers worldwide and is broadcast in over 100 countries. Since
originally airing in the fall of 2008, the episode about the Tesla Roadster has been rebroadcast repeatedly around the world. The review of the
Tesla Roadster included a number of significant falsehoods regarding the car’s performance, range and safety. Such criticisms create a negative
public perception about the Tesla Roadster, and to the extent that these comments are believed by the public, may cause current or potential
customers not to purchase our electric vehicles such as Model S or Model X, which would materially adversely affect our business, operating
results, financial condition and prospects.
The range of our electric vehicles on a single charge declines over time which may negatively influence potential customers’ decisions
whether to purchase our vehicles.
The range of our electric vehicles on a single charge declines principally as a function of usage, time and charging patterns as well as other
factors. For example, a customer’s use of their Tesla vehicle as well as the frequency with which they charge the battery pack of their Tesla
vehicle can result in additional deterioration of the battery pack’s ability to hold a charge. For example, we currently expect that our battery pack
for the Tesla Roadster will retain approximately 60-65% of its ability to hold its initial charge after approximately 100,000 miles or seven years,
which will result in a decrease to the vehicle’s initial range. Such battery pack deterioration and the related decrease in range and power may
negatively influence potential customer decisions whether to purchase our vehicles, which may harm our ability to market and sell our vehicles.
We are dependent upon our loan facility from the United States Department of Energy.
We have relied on our DOE Loan Facility to develop and produce Model S and develop the Tesla Factory. Our DOE Loan Facility
provided for a $465.0 million loan facility under the DOE’s ATVM Program to help finance the development of Model S, including the increase
in production capacity and operation of our manufacturing facility, and to finance the build out and operation of our electric powertrain
manufacturing facility. All advanced funds, as of the most recent amendment to the DOE Loan Facility in March 2013, are repayable on a
quarterly basis through December 15, 2017.
Our DOE Loan Facility documents contain customary covenants that include, among others, a requirement that the project be conducted in
accordance with the business plan for such project, compliance with all requirements of the ATVM Program, and limitations on our and our
subsidiaries’ ability to incur indebtedness, incur liens, make investments or loans, enter into mergers or acquisitions, dispose of assets, pay
dividends or make distributions on capital stock, prepay indebtedness, pay management, advisory or similar fees to affiliates, enter into certain
affiliate transactions, enter into new lines of business and enter into certain restrictive agreements. These restrictions may limit our ability to
operate our business and may cause us to take actions or prevent us from taking actions we believe are necessary from a competitive standpoint
or that we otherwise believe are necessary to grow our business. In addition, our DOE Loan Facility also contains a variety of customary
financial covenants, including covenants related to current ratio, leverage ratio, interest coverage ratio and fixed charge coverage ratio. We
modified certain of these covenants in February 2012, September 2012, and again in March 2013.
If we do not comply with the requirements of the DOE Loan Facility, such failure, if not waived by the DOE, could cause a default under
the DOE Loan Facility. In the event of a default, the DOE could declare the existing outstanding loan amounts to be due immediately. Any
acceleration of the repayment of outstanding loan amounts would materially and adversely affect our business and prospects. If, in the future, we
are not able to comply with our covenants, including as set forth above, we may need to seek additional waivers, and there can be no assurance
the DOE will be willing to grant such waivers at that time. We also have cross-default provisions in contracts with certain equipment lessors and
suppliers, pursuant to which an event of default under the DOE Loan Facility may result in a default under such contract, which could lead to
termination of such contract, an acceleration of obligations, payment of liquidated damages and/or repossession of leased property by an
equipment lessor.
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In addition, our DOE Loan Facility requires Mr. Musk and certain of his affiliates, until one year after we complete the project relating to
the Model S Facility, to own at least 65% of the Tesla capital stock held by them as of the date of the DOE Loan Facility, and a failure to comply
would be an event of default that could result in an acceleration of all obligations under the DOE Loan Facility documents and the exercise of
other remedies by the DOE.
We are currently expanding and improving our information technology systems. If these implementations are not successful, our business
and operations could be disrupted and our operating results could be harmed.
We are currently expanding and improving our information technology systems, including implementing new internally developed
systems, to assist us in the management of our business. In particular, our volume production of Model S will necessitate the development,
maintenance and improvement of our information technology systems which include product data management, procurement, inventory
management, production planning and execution, sales and logistics, dealer management, financial and regulatory compliance systems. These
systems support our operations and enable us to produce Model S in volume. The implementation, maintenance and improvement of these
systems require significant management time, support and cost. Moreover, there are inherent risks associated with developing, improving and
expanding our core systems as well as implementing new systems, including the disruption of our data management, procurement processes,
manufacturing execution, finance, supply chain and sales processes that may affect our ability to manage our data and inventory, procure parts or
supplies or manufacture, sell and deliver vehicles to our Tesla stores and customers. We cannot be sure that these expanded systems or their
required functionality will be fully or effectively implemented on a timely basis, if at all, or maintained. If we do not successfully implement,
improve or maintain these systems, our operations may be disrupted and our operating results could be harmed. In addition, these systems or
their functionality may not operate as we expect them to, and we may be required to expend significant resources to correct problems or find
alternative sources for performing these functions.
Our distribution model is different from the predominant current distribution model for automobile manufacturers, which makes
evaluating our business, operating results and future prospects difficult.
Our distribution model is not common in the automobile industry today, particularly in the United States. We plan to continue to sell our
performance electric vehicles in company-owned Tesla stores and over the internet. This model of vehicle distribution is relatively new and
unproven, especially in the United States, and subjects us to substantial risk as it requires, in the aggregate, a significant expenditure and
provides for slower expansion of our distribution and sales systems than may be possible by utilizing a more traditional dealer franchise system.
For example, we will not be able to utilize long-established sales channels developed through a franchise system to increase our sales volume,
which may harm our business, prospects, financial condition and operating results. Moreover, we will be competing with companies with wellestablished distribution channels.
We have opened Tesla stores in the United States, Europe and Japan, many of which have been open for only a short period of time. We
have only limited experience distributing and selling our performance vehicles through our Tesla stores. Our success will depend in large part on
our ability to effectively develop our own sales channels and marketing strategies. Implementing our business model is subject to numerous
significant challenges, including obtaining permits and approvals from local and state authorities, and we may not be successful in addressing
these challenges. In April 2011, we began the roll out of our new interactive store strategy. The concept and layout of these new stores, which
are located in high profile retail centers, is different than what has previously been used in automotive sales. We do not know whether our new
store strategy will be successful, if consumers will be willing to purchase vehicles in this manner or if these locations will be deemed to comply
with applicable zoning restrictions as well as approval and acceptance from the specific high profile retail centers in which we seek to locate our
stores. As a result, we may incur additional costs in order to improve or change our retail strategy.
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Other aspects of our distribution model also differ from those used by traditional automobile manufacturers. For example, all of our sales
of Model S to date have been made to individuals on our Model S reservations list who have to wait for their Model S vehicles to be built to take
delivery. Moreover, we do not anticipate that we will ever carry a significant amount of Model S inventory at our stores and even after we work
through the current reservations list, we expect that there will be sufficient ongoing reservations such that customers will usually need to wait a
few months from the time they place an order until the time they receive their vehicle. This type of custom manufacturing is unusual in the
premium sedan market in the United States and it is unproven whether the average customer will be willing to wait this amount of time for such
a vehicle. If customers do not embrace this ordering and retail experience, our business will be harmed.
You must consider our business and prospects in light of the risks, uncertainties and difficulties we encounter as we implement our
business model. For instance, we will need to persuade customers, suppliers and regulators of the validity and sustainability of our business
model. We cannot be certain that we will be able to do so, or to successfully address the risks, uncertainties and difficulties that our business
strategy faces. Any failure to successfully address any of the risks, uncertainties and difficulties related to our business model would have a
material adverse effect on our business and prospects.
We may face regulatory limitations on our ability to sell vehicles directly or over the internet which could materially and adversely affect
our ability to sell our electric vehicles.
We sell our vehicles from our Tesla stores as well as over the internet. We may not be able to sell our vehicles through this sales model in
each state in the United States as many states have laws that may be interpreted to prohibit internet sales by manufacturers to residents of the
state or to impose other limitations on this sales model, including laws that prohibit manufacturers from selling vehicles directly to consumers
without the use of an independent dealership or without a physical presence in the state. For example, some states provide that a manufacturer
cannot deliver a vehicle to a resident of their state except through a dealer licensed to do business in such state, which may be interpreted to
require us to open a store in that state in order to sell vehicles to their residents. In some states where we have opened a gallery, which is a
location where potential customers can view our vehicles but is not a full retail location, it is possible that a state regulator could take the
position that activities at our gallery constitute an unlicensed motor vehicle dealership and thereby violates applicable manufacturer-dealer laws.
In addition, some states have requirements that service facilities be available with respect to vehicles sold in the state, which may be interpreted
to also require that service facilities be available with respect to vehicles sold over the internet to residents of the state thereby limiting our
ability to sell vehicles in states where we do not maintain service facilities.
The foregoing examples of state laws governing the sale of motor vehicles are just some of the regulations we will face as we sell our
vehicles. In many states, the application of state motor vehicle laws to our specific sales model is largely untested under state motor vehicle
industry laws, particularly with respect to sales over the internet, and would be determined by a fact specific analysis of numerous factors,
including whether we have a physical presence or employees in the applicable state, whether we advertise or conduct other activities in the
applicable state, how the sale transaction is structured, the volume of sales into the state, and whether the state in question prohibits
manufacturers from acting as dealers. As a result of the fact specific and untested nature of these issues, and the fact that applying these laws
intended for the traditional automobile distribution model to our sales model allows for some interpretation and discretion by the regulators, the
manner in which the applicable authorities will apply their state laws to our distribution model is difficult to predict. Such laws, as well as other
laws governing the motor vehicle industry, may subject us to potential inquiries and investigations from state motor vehicle regulators who may
question whether our sales model complies with applicable state motor vehicle industry laws and who may require us to change our sales model
or may prohibit our ability to sell our vehicles to residents in such states. In addition, decisions by regulators permitting us to sell vehicles may
be subject to challenges as to whether such decisions comply with applicable state motor vehicle industry laws. In October 2012, vehicle dealer
associations in New York and Massachusetts filed lawsuits to revoke the dealer license issued to Tesla Motors New York in New York and to
limit the business activity of Tesla Motors MA,
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Inc. in Massachusetts. The Massachusetts lawsuit has was dismissed by the court in our favor in December 2012 and is currently being appealed
by the plaintiffs. Although we believe that Massachusetts and New York laws were not designed to prevent our distribution model, such
challenges in these states, and possible similar challenges in other states, if successful, could restrict or prohibit our ability to sell our vehicles to
residents in such states. In some states, such as Massachusetts and Minnesota, there are also legislative efforts by vehicle dealer associations to
propose bills that, if enacted, would prevent us from obtaining dealer licenses in their states given our current sales model.
We are also registered as both a motor vehicle manufacturer and dealer in Canada, Australia, and Japan, and have obtained licenses to sell
vehicles in other places such as Hong Kong and Singapore. Furthermore, while we have performed an analysis of the principal laws in the
European Union relating to our distribution model and believe we comply with such laws, we have not performed a complete analysis in all
foreign jurisdictions in which we may sell vehicles. Accordingly, there may be laws in jurisdictions we have not yet entered or laws we are
unaware of in jurisdictions we have entered that may restrict our vehicle reservation practices or other business practices. Even for those
jurisdictions we have analyzed, the laws in this area can be complex, difficult to interpret and may change over time.
Regulatory limitations on our ability to sell vehicles could materially and adversely affect our ability to sell our electric vehicles.
Reservations for Model S and Model X are fully refundable to customers, and significant cancellations could harm our financial
condition, business, prospects and operating results.
As of December 31, 2012, we had $138.8 million in reservation payments, primarily for Model S and Model X, all of which are subject to
cancellation by the customer up until such time that the customer enters into a purchase agreement. We have experienced ongoing cancellations
for our vehicles and have had to refund the related reservation payments, and cancellations may continue.
Given the long lead times that we have historically experienced between customer reservation and delivery on the Tesla Roadster and on
Model S and that we expect to experience on Model X, there is a heightened risk that customers that have made reservations may not ultimately
take delivery on vehicles due to potential changes in customer preferences, competitive developments and other factors. For example, when we
delayed the introduction of the original Tesla Roadster in the fall of 2007, we experienced a significant number of customers that cancelled their
reservations and requested the return of their reservation payment. Cancellations on Model S have recently increased as we have asked numerous
customers on the reservation list to configure their cars for delivery or risk losing their production slot and/or their 2012 pricing. Some of our
customers are also electing to defer configuring their cars or have not responded to our invitations to them to configure their cars for delivery. It
is possible that a portion of these customers will ultimately cancel their reservations, thereby resulting in higher cancellation rates than we have
experienced thus far. Furthermore, if we encounter additional delays in the planned ramp of Model S production or the introduction of Model X,
we believe that a significant number of our customers could similarly cancel their reservations and demand refunds of their reservation
payments. As a result, no assurance can be made that reservations will not be cancelled and will ultimately result in the final purchase, delivery,
and sale of the vehicle. Given the high level of reservations, significant cancellations could harm our financial condition, business, prospects and
operating results.
We may not realize the benefits of our Supercharger network which could harm our business, brand and operating results.
We only recently announced plans for the initial deployment in the United States and Canada of the Tesla Supercharger network, a
network of charging stations designed to provide fast-charge capability to owners of Model S vehicles equipped with Supercharger
hardware. We intend to expand the Tesla Supercharger network throughout the U.S., Canada and Europe, but we may be unable to do so due to a
number of factors, including the
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inability to secure, or delays in securing, suitable locations and permits, difficulties in interfacing with the infrastructures of various utility
companies and greater than expected costs and difficulties of installing, maintaining and operating the network. We may also be unable to
expand the Supercharger network as fast as we intend or as the public expects, or to place the charging stations in places our customers believe
to be optimal. In addition, as we have announced that we will not be charging our customers to access this network, any significant unexpected
costs that we encounter may harm our operating results. Although our Supercharger network is intended to address customer concerns regarding
long-distance travel, this network may not result in increased reservations or sales of Model S or future vehicles. If our Supercharger network is
not expanded as currently planned or as fast as planned, we may not realize the benefits of our Supercharger network and our business and
operating results could be materially affected.
If we are unable to design, develop, market and sell new electric vehicles and services that address additional market opportunities, our
business, prospects and operating results will suffer.
We may not be able to successfully develop new electric vehicles and services, address new market segments or develop a significantly
broader customer base. To date, we have focused our business on the sale of high-performance electric vehicles and have targeted relatively
affluent consumers. We will need to address additional markets and expand our customer demographic in order to further grow our business. In
particular, we intend Model S to appeal to the customers of premium vehicles, which is a much larger and different demographic from that of the
Tesla Roadster. Successfully offering a vehicle in this vehicle class requires delivering a vehicle with a higher standard of fit and finish in the
interior and exterior than currently exists in the Tesla Roadster, at a price that is competitive with other premium vehicles. Therefore, there can
be no assurance that we will be able to deliver a vehicle that is ultimately competitive in the premium vehicle market. In 2012, we publicly
revealed an early prototype of the Model X crossover as the first vehicle we intend to develop by leveraging the Model S platform. We have also
previously announced our intent to develop a third generation electric vehicle which we expect to produce at the Tesla Factory after the
introduction of Model S and Model X. However, we have not yet finalized the design, engineering or component sourcing plans for these
vehicles and there are no assurances that we will be able to bring these vehicles to market at the price points and in the volumes as we currently
intend, if at all. Our failure to address additional market opportunities would harm our business, prospects, financial condition and operating
results.
If we are unable to effectively leverage the benefits of using an adaptable common platform architecture in the design and manufacture of
future vehicles such as Model X, our business prospects, operating results and financial condition would be adversely affected.
We have designed Model S with an adaptable platform architecture and common electric powertrain so that we can use the platform of
Model S to create future electric vehicles, including, as an example, our Model X crossover vehicle. However, we have no experience with using
common platforms in the design and manufacture of our vehicles. The Model X design is not yet finalized and we may be unable to use the
adaptable Model S platform to the extent we currently intend. Additionally, we intend to use some of our Model S manufacturing equipment and
parts tooling for the production of Model X. If such tooling, production equipment and parts are insufficient for use in Model X, perhaps as a
result of a lower level of commonality between the two vehicles than we anticipate, our costs related to the production of Model X may exceed
expectations. There are no assurances that we will be able to use the Model S platform to bring future vehicle models, including the Model X
crossover, to market faster or more inexpensively by leveraging use of this common platform or that there will be sufficient customer demand for
any vehicles built on the Model S platform.
We may experience significant delays in the design, manufacture and launch of Model X which could harm our business and prospects.
We plan to start Model X production in late 2014. Any significant delay in the design, manufacture and launch of Model X could
materially damage our brand, business, prospects, financial condition and operating
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results. Automobile manufacturers often experience delays in the design, manufacture and commercial release of new vehicle models. We
experienced significant delays in launching the Tesla Roadster, which resulted in additional costs and adverse publicity for our business. In 2012,
we also experienced delays in the ramp of Model S. We may experience similar delays, cost overruns and adverse publicity in launching Model
X, any of which could be significant. We are in the initial design and development stages of Model X. Furthermore, we have not yet evaluated,
qualified or selected all of our suppliers for the planned production of Model X. We may not be able to engage suppliers for the components in a
timely manner, at an acceptable price or in the necessary quantities. We will also need to do extensive testing to ensure that Model X is in
compliance with applicable NHTSA safety regulations and obtain EPA and CARB certification to emission regulations prior to beginning
volume production and delivery of the vehicles. In addition, we have limited resources and, to the extent that such engineering and
manufacturing resources are devoted to the design and production of Model S or are otherwise engaged such as in development services
activities, we may have difficulty designing and delivering Model X in a timely manner. If we are not able to manufacture and deliver Model X
in a timely manner and consistent with our production timeline, budget and cost projections, our business, prospects, operating results and
financial condition will be negatively impacted and our ability to grow our business will be harmed.
The automotive market is highly competitive, and we may not be successful in competing in this industry. We currently face competition
from new and established competitors and expect to face competition from others in the future.
The worldwide automotive market, particularly for alternative fuel vehicles, is highly competitive today and we expect it will become even
more so in the future. Other automobile manufacturers entered the electric vehicle market at the end of 2010 and we expect additional
competitors to enter this market. With respect to Model S, we face competition from existing and future automobile manufacturers in the
extremely competitive premium sedan market, including Audi, BMW, Lexus and Mercedes.
Many established and new automobile manufacturers have entered or have announced plans to enter the alternative fuel vehicle market. In
Japan, Mitsubishi has been selling its electric iMiEV since April 2010. In December 2010, Nissan introduced in the United States the Nissan
Leaf, a fully electric vehicle and Ford introduced the pure electric Ford Focus and plug-in hybrid Ford C-Max Energi and Ford Fusion Energi in
2012 and plans to introduce a plug-in hybrid Ford CMax in 2012. In addition, several manufacturers, including General Motors, Toyota, Ford,
and Honda, are each selling hybrid vehicles, and certain of these manufacturers have announced plug-in versions of their hybrid vehicles. For
example, in December 2010, General Motors introduced the Chevrolet Volt, which is a plug-in hybrid vehicle that operates purely on electric
power for a limited number of miles, at which time an internal combustion engine engages to recharge the battery pack.
Moreover, it has been reported that many of the large OEMs such as BMW, Daimler, Lexus, Audi, Renault and Volkswagen are also
developing electric vehicles. Several new start-ups have also entered or announced plans to enter the market for performance electric vehicles.
Finally, electric vehicles have already been brought to market in China and other foreign countries and we expect a number of those
manufacturers to enter the United States market as well.
Most of our current and potential competitors have significantly greater financial, technical, manufacturing, marketing and other resources
than we do and may be able to devote greater resources to the design, development, manufacturing, distribution, promotion, sale and support of
their products. Virtually all of our competitors have more extensive customer bases and broader customer and industry relationships than we do.
In addition, almost all of these companies have longer operating histories and greater name recognition than we do. Our competitors may be in a
stronger position to respond quickly to new technologies and may be able to design, develop, market and sell their products more effectively.
Furthermore, certain large automobile manufacturers offer financing and leasing options on their vehicles and also have the ability to
market vehicles at a substantial discount, provided that the vehicles are financed through their affiliated financing company. While we have
entered into a preliminary agreement with Athlon Car
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Lease for the leasing of Model S in selected European and Nordic countries, we do not currently offer any lease financing on Model S, which
may put us at a competitive disadvantage compared to large automobile manufacturers.
We have not in the past, and do not currently, offer customary discounts on our vehicles. Additionally, the lack of lease financing and the
absence of customary vehicle discounts could put us at a competitive disadvantage.
We expect competition in our industry to intensify in the future in light of increased demand for alternative fuel vehicles, continuing
globalization and consolidation in the worldwide automotive industry. Factors affecting competition include product quality and features,
innovation and development time, pricing, reliability, safety, fuel economy, customer service and financing terms. Increased competition may
lead to lower vehicle unit sales and increased inventory, which may result in a further downward price pressure and adversely affect our
business, financial condition, operating results and prospects. Our ability to successfully compete in our industry will be fundamental to our
future success in existing and new markets and our market share. There can be no assurances that we will be able to compete successfully in our
markets. If our competitors introduce new cars or services that compete with or surpass the quality, price or performance of our cars or services,
we may be unable to satisfy existing customers or attract new customers at the prices and levels that would allow us to generate attractive rates
of return on our investment. Increased competition could result in price reductions and revenue shortfalls, loss of customers and loss of market
share, which could harm our business, prospects, financial condition and operating results.
Demand in the automobile industry is highly volatile, which may lead to lower vehicle unit sales and adversely affect our operating
results.
Volatility of demand in the automobile industry may materially and adversely affect our business, prospects, operating results and financial
condition. The markets in which we currently compete and plan to compete in the future have been subject to considerable volatility in demand
in recent periods. For example, according to automotive industry sources, sales of passenger vehicles in North America during the fourth quarter
of 2008 were over 30% lower than those during the same period in the prior year. Demand for automobile sales depends to a large extent on
general, economic, political and social conditions in a given market and the introduction of new vehicles and technologies. As a new automobile
manufacturer and low volume producer, we have less financial resources than more established automobile manufacturers to withstand changes
in the market and disruptions in demand. As our business grows, economic conditions and trends in other countries and regions where we sell
our electric vehicles will impact our business, prospects and operating results as well. Demand for our electric vehicles may also be affected by
factors directly impacting automobile price or the cost of purchasing and operating automobiles such as sales and financing incentives, prices of
raw materials and parts and components, cost of fuel and governmental regulations, including tariffs, import regulation and other taxes.
Volatility in demand may lead to lower vehicle unit sales and increased inventory, which may result in further downward price pressure and
adversely affect our business, prospects, financial condition and operating results. These effects may have a more pronounced impact on our
business given our relatively smaller scale and financial resources as compared to many incumbent automobile manufacturers.
Difficult economic conditions may negatively affect consumer purchases of luxury items, such as our performance electric vehicles.
Over the last few years, the deterioration in the global financial markets and continued challenging condition of the macroeconomic
environment has negatively impacted consumer spending and we believe has adversely affected the sales of our Tesla Roadster. The automobile
industry in particular was severely impacted by the poor economic conditions and several vehicle manufacturing companies, including General
Motors and Chrysler, were forced to file for bankruptcy. Sales of new automobiles generally have dropped during this recessionary period. Sales
of high-end and luxury consumer products, such as our performance electric vehicles, depend in part on discretionary consumer spending and are
even more exposed to adverse changes in general
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economic conditions. Difficult economic conditions could therefore temporarily reduce the market for vehicles in our price range. Discretionary
consumer spending also is affected by other factors, including changes in tax rates and tax credits, interest rates and the availability and terms of
consumer credit.
If the current difficult economic conditions continue or worsen, we may experience a decline in the demand for reservations for Model S or
future vehicles such as Model X, any of which could materially harm our business, prospects, financial condition and operating results.
Accordingly, any events that have a negative effect on the United States economy or on foreign economies or that negatively affect consumer
confidence in the economy, including disruptions in credit and stock markets, and actual or perceived economic slowdowns, may harm our
business, prospects, financial condition and operating results. We plan to grow our sales in Europe and Asia in 2013 and beyond. If there is a
significant slowdown and continued downturn in the European economy, our prospects of growth in Europe could be severally constrained.
Our financial results may vary significantly from period-to-period due to the seasonality of our business and fluctuations in our operating
costs.
Our operating results may vary significantly from period-to-period due to many factors, including seasonal factors that may have an effect
on the demand for our electric vehicles. Demand for new cars in the automobile industry in general, typically decline over the winter season,
while sales are generally higher during the spring and summer months. Sales of the Tesla Roadster have fluctuated on a seasonal basis with
increased sales during the spring and summer months in our second and third fiscal quarters relative to our fourth and first fiscal quarters. We
note that, in general, automotive sales tend to decline over the winter season and we anticipate that our sales of Model S, Model X and other
models we introduce may have similar seasonality. However, our limited operating history makes it difficult for us to judge the exact nature or
extent of the seasonality of our business. Also, any unusually severe weather conditions in some markets may impact demand for our vehicles.
Our operating results could also suffer if we do not achieve revenue consistent with our expectations for this seasonal demand because many of
our expenses are based on anticipated levels of annual revenue.
In addition, we expect our period-to-period operating results to vary based on our operating costs which we anticipate will increase
significantly in future periods as we, among other things, design, develop and manufacture Model X and electric powertrain components,
increase the production capacity at our manufacturing facilities to produce Model S and electric powertrain components, open new Tesla service
centers with maintenance and repair capabilities, incur costs for warranty repairs or product recalls, if any, increase our sales and marketing
activities, and increase our general and administrative functions to support our growing operations. As a result of these factors, we believe that
quarter-to-quarter comparisons of our operating results, especially in the short-term, are not necessarily meaningful and that these comparisons
cannot be relied upon as indicators of future performance. Moreover, our operating results may not meet expectations of equity research analysts
or investors. If any of this occurs, the trading price of our common stock could fall substantially, either suddenly or over time.
If we are unable to establish and maintain confidence in our long-term business prospects among consumers, analysts and within our
industry, then our financial condition, operating results, business prospects and stock price may suffer materially.
Our vehicles are highly technical products that require maintenance and support. If we were to cease or cut back operations, even years
from now, buyers of our vehicles from years earlier might have much more difficulty in maintaining their vehicles and obtaining satisfactory
support. As a result, consumers may be less likely to purchase our vehicles now if they are not convinced that our business will succeed or that
our operations will continue for many years. Similarly, suppliers and other third parties will be less likely to invest time and resources in
developing business relationships with us if they are not convinced that our business will succeed. For example, during the economic downturn
of 2008, we had difficulty raising the necessary funding for our operations, and, as a result, in the fourth quarter of 2008 we had to lay off
approximately 60 employees and curtail our expansion plans. In addition, during this period a number of customers canceled their previously
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placed reservations. If we are required to take similar actions in the future, such actions may result in negative perceptions regarding our longterm business prospects and may lead to cancellations of Model S or Model X reservations.
Accordingly, in order to build and maintain our business, we must maintain confidence among customers, suppliers, analysts and other
parties in our liquidity and long-term business prospects. In contrast to some more established automakers, we believe that, in our case, the task
of maintaining such confidence may be particularly complicated by factors such as the following:
•
our limited operating history;
•
our limited revenues and lack of profitability to date;
•
unfamiliarity with or uncertainty about Model S and Model X;
•
uncertainty about the long-term marketplace acceptance of alternative fuel vehicles generally, or electric vehicles specifically;
•
the prospect that we will need ongoing infusions of external capital to fund our planned operations;
•
the size of our expansion plans in comparison to our existing capital base and scope and history of operations; and
•
the prospect or actual emergence of direct, sustained competitive pressure from more established automakers, which may be more
likely if our initial efforts are perceived to be commercially successful.
Many of these factors are largely outside our control, and any negative perceptions about our long-term business prospects, even if
exaggerated or unfounded, would likely harm our business and make it more difficult to raise additional funds when needed.
We may need or want to raise additional funds and these funds may not be available to us when we need them. If we cannot raise
additional funds when we need or want them, our operations and prospects could be negatively affected.
The design, manufacture, sale and servicing of automobiles is a capital intensive business. As of December 31, 2012, we had
approximately $226.1 million in principal sources of liquidity from our cash and cash equivalents and restricted cash. This includes our cash and
cash equivalents in the amount of approximately $201.9 million which includes our investments in money market funds, as well as restricted
cash of $24.3 million.
We expect that our principal sources of liquidity will provide us adequate liquidity until we reach expected profitability in 2013, based on
our current plans. However, if the costs for developing and manufacturing Model S variants or Model X exceed our expectations or if we incur
any significant unplanned expenses or embark on or accelerate new significant strategic investments, we may need to raise additional funds
through the issuance of equity, equity-related or debt securities or through obtaining credit from government or financial institutions. This capital
will be necessary to fund our ongoing operations, continue research and development projects, including those for our planned Model X
crossover, establish sales and service centers and to make the investments in tooling and manufacturing capital required to introduce Model X.
We cannot be certain that additional funds will be available to us on favorable terms when required, or at all. If we cannot raise additional funds
when we need them, our financial condition, results of operations, business and prospects could be materially adversely affected. Additionally,
under our DOE Loan Facility, we face restrictions on our ability to incur additional indebtedness, and in the future may need to obtain a waiver
from the DOE in order to do so. We may not be able to obtain such waiver from the DOE which may harm our business. Future issuance of
equity or equity-related securities will dilute the ownership interest of existing stockholders and our issuance of debt securities could increase the
risk or perceived risk of our company.
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We have relied on our DOE Loan Facility to develop and produce Model S and develop the Tesla Factory. We do not currently have any
similar type of loan facility in place for our Model X or any future vehicles. In addition, we have only recently begun to accept customer
reservation payments on Model X, can provide no assurance that customers will be willing to make such payments and accordingly may be
reliant on other sources to fund the development of this vehicle.
We have very limited experience servicing our vehicles and we are using a different service model from the one typically used in the
industry. If we are unable to address the service requirements of our existing and future customers our business will be materially and
adversely affected.
If we are unable to successfully address the service requirements of our existing and future customers and meet customer expectations
regarding service, our business and prospects will be materially and adversely affected. We have only produced and delivered a limited number
of Roadsters and Model S vehicles. We have very limited experience servicing our vehicles, particularly our Model S vehicle. Servicing electric
vehicles is different than servicing vehicles with internal combustion engines and requires specialized skills, including high voltage training and
servicing techniques. If we are unable to satisfactorily service our customers and the various service related issues that they are facing and may
face in the future, our ability to generate customer loyalty, grow our business and sell additional Model S vehicles could be impaired.
We service our performance electric vehicles through our company-owned Tesla service centers, certain of our stores, and through our
mobile service technicians known as the Tesla Rangers. However, certain service centers have been open for short periods, and to date we have
only limited experience servicing our performance vehicles at these locations We will need to open new standalone service centers and hire and
train significant numbers of new employees to staff these service centers and act as Tesla Rangers, in order to successfully maintain our fleet of
delivered performance electric vehicles. We only implemented our Tesla Rangers program in October 2009 and have limited experience in
deploying them to service our customers’ vehicles. There can be no assurance that these service arrangements or our limited experience servicing
our vehicles will adequately address the service requirements of our customers to their satisfaction, or that we will have sufficient resources to
meet these service requirement in a timely manner as the volume of vehicles we are able to deliver annually increases.
We do not expect to be able to open Tesla service centers in all the geographic areas in which our existing and potential customers may
reside. In order to address the service needs of customers that are not in geographical proximity to our service centers, we plan to either transport
those vehicles to the nearest Tesla store or service center for servicing or deploy our mobile Tesla Rangers to service the vehicles at the
customer’s location. These special arrangements may be expensive and we may not be able to recoup the costs of providing these services to our
customers. In addition, a number of potential customers may choose not to purchase our vehicles because of the lack of a more widespread
service network. If we do not adequately address our customers’ service needs, our brand and reputation will be adversely affected, which in
turn, could have a material and adverse impact on our business, financial condition, operating results and prospects.
Traditional automobile manufacturers in the United States do not provide maintenance and repair services directly. Consumers must rather
service their vehicles through franchised dealerships or through third party maintenance service providers. We do not have any such
arrangements with third party service providers and it is unclear when or even whether such third party service providers will be able to acquire
the expertise to service our vehicles. At this point, we anticipate that we will be providing substantially all of the service for our vehicles for the
foreseeable future. As our vehicles are placed in more locations, we may encounter negative reactions from our consumers who are frustrated
that they cannot use local service stations to the same extent as they have with their conventional automobiles and this frustration may result in
negative publicity and reduced sales, thereby harming our business and prospects.
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In addition, the motor vehicle industry laws in many states require that service facilities be available with respect to vehicles physically
sold from locations in the state. Whether these laws would also require that service facilities be available with respect to vehicles sold over the
internet to consumers in a state in which we have no physical presence is uncertain. While we believe our Tesla Ranger program and our practice
of shipping customers’ vehicles to our nearest Tesla store for service would satisfy regulators in these circumstances, without seeking formal
regulatory guidance, there are no assurances that regulators will not attempt to require that we provide physical service facilities in their states.
Further, certain state franchise laws which prohibit manufacturers from being licensed as a dealer or acting in the capacity of dealer also restrict
manufacturers from providing vehicle service. If issues arise in connection with these laws, certain aspects of Tesla’s service program would
need to be restructured to comply with state law, which may harm our business.
We may not succeed in maintaining and strengthening the Tesla brand, which would materially and adversely affect customer acceptance
of our vehicles and components and our business, revenues and prospects.
Our business and prospects are heavily dependent on our ability to develop, maintain and strengthen the Tesla brand. Any failure to
develop, maintain and strengthen our brand may materially and adversely affect our ability to sell the Tesla Roadster, Model S, Model X and
future planned electric vehicles, and sell our electric powertrain components. If we do not continue to establish, maintain and strengthen our
brand, we may lose the opportunity to build a critical mass of customers. Promoting and positioning our brand will likely depend significantly on
our ability to provide high quality electric cars and maintenance and repair services, and we have very limited experience in these areas. Any
problems associated with the launch of the Toyota RAV4 EV which uses a Tesla powertrain, future Daimler vehicles that use Tesla powertrains
or the Model X may hurt the Tesla brand.
In addition, we expect that our ability to develop, maintain and strengthen the Tesla brand will also depend heavily on the success of our
marketing efforts. To date, we have limited experience with marketing activities as we have relied primarily on the internet, word of mouth and
attendance at industry trade shows to promote our brand. To further promote our brand, we may be required to change our marketing practices,
which could result in substantially increased advertising expenses, including the need to use traditional media such as television, radio and print.
The automobile industry is intensely competitive, and we may not be successful in building, maintaining and strengthening our brand. Many of
our current and potential competitors, particularly automobile manufacturers headquartered in Detroit, Japan and the European Union, have
greater name recognition, broader customer relationships and substantially greater marketing resources than we do. If we do not develop and
maintain a strong brand, our business, prospects, financial condition and operating results will be materially and adversely impacted.
If our vehicle owners customize our vehicles or change the charging infrastructure with aftermarket products, the vehicle may not operate
properly, which could harm our business.
Automobile enthusiasts may seek to “hack” our vehicles to modify its performance which could compromise vehicle safety systems. Also,
we are aware of customers who have customized their vehicles with after-market parts that may compromise driver safety. For example, some
customers have installed seats that elevate the driver such that airbag and other safety systems could be compromised. Other customers have
changed wheels and tires, while others have installed large speaker systems that may impact the electrical systems of the vehicle. We have not
tested, nor do we endorse, such changes or products. In addition, customer use of improper external cabling or unsafe charging outlets can
expose our customers to injury from high voltage electricity. Such unauthorized modifications could reduce the safety of our vehicles and any
injuries resulting from such modifications could result in adverse publicity which would negatively affect our brand and harm our business,
prospects, financial condition and operating results.
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Regulators could review our practice of taking reservation payments and, if the practice is deemed to violate applicable law, we could be
required to pay penalties, refund the reservation payments stop accepting additional reservation payments, and restructure certain aspects
of our reservation program.
For customers interested in making a reservation for Model S or Model X, we require an initial fully refundable reservation payment of at
least $5,000. As of December 31, 2012, we had collected reservation payments, primarily for Model S and Model X, in an aggregate amount of
$138.8 million. We generally use these funds for working capital and other general corporate purposes. California laws, and potentially the laws
of other states, restrict the ability of licensed auto dealers to advertise or take deposits for vehicles before the vehicles are available to the dealer
from the manufacturer. In November 2007, we became aware that the New Motor Vehicle Board of the California Department of Transportation
has considered whether our reservation policies and advertising comply with the California Vehicle Code. To date, we have not received any
communications on this topic from the New Motor Vehicle Board or the Department of Motor Vehicles (DMV), which has the power to enforce
these laws. There can be no assurance that the DMV will not take the position that our vehicle reservation or advertising practices violate the
law. In addition, California is currently the only jurisdiction in which we have licenses to both manufacture and sell our vehicles so any
limitation imposed on our operations in California may be particularly damaging to our business. The DMV also has the power to suspend
licenses to manufacture and sell vehicles in California, following a hearing on the merits, which it has typically exercised in cases of significant
or repeat violations and/or a refusal to comply with DMV directions.
Certain states may have specific laws which apply to reservation payments accepted by dealers, or manufacturers selling directly to
consumers, or both. For example, the state of Washington requires that reservation payments or other payments received from residents in the
state of Washington must be placed in a segregated account until delivery of the vehicle, which account must be unencumbered by any liens
from creditors of the dealer and may not be used by the dealer. Consequently, we established a segregated account for reservation payments in
the state of Washington in January 2010. There can be no assurance that other state or foreign jurisdictions will not require similar segregation of
reservation payments received from customers. Our inability to access these funds for working capital purposes could harm our liquidity.
Furthermore, while we have performed an analysis of the principal laws in the European Union relating to our distribution model and believe we
comply with such laws, we have not performed a complete analysis in all foreign jurisdictions in which we may sell vehicles. Accordingly, there
may be laws in jurisdictions we have not yet entered or laws we are unaware of in jurisdictions we have entered that may restrict our vehicle
reservation practices or other business practices. Reductions in our cash as a result of redemptions or an inability to take reservation payments
could make it necessary to raise additional funds and also make it more difficult for us to obtain additional financing. The prospect of reductions
in cash, even if unrealized, may also make it more difficult to obtain financing.
Our plan to expand our network of Tesla stores will require significant cash investments and management resources and may not meet
our expectations with respect to additional sales of our electric vehicles. In addition, we may not be able to open stores in certain states.
Our plan to expand our network of Tesla stores will require significant cash investments and management resources and may not meet our
expectations with respect to additional sales of our electric vehicles. This planned global expansion of Tesla stores may not have the desired
effect of increasing sales and expanding our brand presence to the degree we are anticipating. Furthermore there can be no assurances that we
will be able to construct additional storefronts on the budget or timeline we have established. We will also need to ensure we are in compliance
with any regulatory requirements applicable to the sale of our vehicles in those jurisdictions, which could take considerable time and expense. If
we experience any delays in expanding our network of Tesla stores, this could lead to a decrease in sales of our vehicles and could negatively
impact our business, prospects, financial condition and operating results. We have opened Tesla stores in major metropolitan areas throughout
North America, Europe and Asia. We plan to open additional stores, with a goal of establishing approximately 50 stores globally within the next
several years in connection with the Model S rollout. However, we may not be able to expand our network at such rate and our planned
expansion of our network of Tesla stores will require significant cash investment and management resources, as well as efficiency in the
execution of establishing these storefronts and in hiring and training the necessary employees to effectively sell our vehicles.
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Furthermore, certain states and foreign jurisdictions may have permit requirements, franchise dealer laws or similar laws or regulations that
may preclude or restrict our ability to open stores or sell vehicles out of such states and jurisdictions. Any such prohibition or restriction may
lead to decreased sales in such jurisdictions, which could harm our business, prospects and operating results. See Risk Factor “ We may face
regulatory limitations on our ability to sell vehicles directly or over the internet which could materially and adversely affect our ability to sell
our electric vehicles.”
We face risks associated with our international operations, including unfavorable regulatory, political, tax and labor conditions, which
could harm our business.
We face risks associated with our international operations, including possible unfavorable regulatory, political, tax and labor conditions,
which could harm our business. We currently have international operations and subsidiaries in various countries and jurisdictions that are subject
to the legal, political, regulatory and social requirements and economic conditions in these jurisdictions. Additionally, as part of our growth
strategy, we intend to expand our sales, maintenance and repair services internationally. However, we have limited experience to date selling and
servicing our vehicles internationally and such expansion would require us to make significant expenditures, including the hiring of local
employees and establishing facilities, in advance of generating any revenue. We are subject to a number of risks associated with international
business activities that may increase our costs, impact our ability to sell our electric vehicles and require significant management attention. These
risks include:
•
conforming our vehicles to various international regulatory and safety requirements where our vehicles are sold, or homologation;
•
difficulty in staffing and managing foreign operations;
•
difficulties attracting customers in new jurisdictions;
•
foreign government taxes, regulations and permit requirements, including foreign taxes that we may not be able to offset against
taxes imposed upon us in the United States, and foreign tax and other laws limiting our ability to repatriate funds to the United
States;
•
fluctuations in foreign currency exchange rates and interest rates, including risks related to any interest rate swap or other hedging
activities we undertake;
•
our ability to enforce our contractual and intellectual property rights, especially in those foreign countries that do not respect and
protect intellectual property rights to the same extent as do the United States, Japan and European countries, which increases the risk
of unauthorized, and uncompensated, use of our technology;
•
United States and foreign government trade restrictions, tariffs and price or exchange controls;
•
foreign labor laws, regulations and restrictions;
•
preferences of foreign nations for domestically produced vehicles;
•
changes in diplomatic and trade relationships;
•
political instability, natural disasters, war or events of terrorism; and
•
the strength of international economies.
If we fail to successfully address these risks, our business, prospects, operating results and financial condition could be materially harmed.
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Foreign currency movements relative to the U.S. dollar could harm our financial results.
Our revenues and costs denominated in foreign currencies are not completely matched. For example, a portion of our costs and expenses
for the year ended December 31, 2012 was denominated in foreign currencies, including the Japanese yen, the euro and the British pound
Conversely for this period and for the remainder of 2012, and until such time as we begin shipping significant quantities of Model S vehicles to
foreign jurisdictions, we expect that a significant majority of our revenue will be denominated in U.S. dollars. Accordingly, if the value of the
U.S. dollar depreciates significantly against these currencies, our costs as measured in U.S. dollars as a percent of our revenues will
correspondingly increase and our margins will suffer. As a result, our operating results could be adversely affected. In the future, and as we
begin selling Model S overseas, as well as delivering powertrain units to Daimler, we may have greater revenues than costs denominated in other
currencies, in which case a strengthening of the dollar would tend to reduce our revenues as measured in U.S. dollars.
Developments in alternative technologies or improvements in the internal combustion engine may materially adversely affect the demand
for our electric vehicles.
Significant developments in alternative technologies, such as advanced diesel, ethanol, fuel cells or compressed natural gas, or
improvements in the fuel economy of the internal combustion engine, may materially and adversely affect our business and prospects in ways we
do not currently anticipate. Any failure by us to develop new or enhanced technologies or processes, or to react to changes in existing
technologies, could materially delay our development and introduction of new and enhanced electric vehicles, which could result in the loss of
competitiveness of our vehicles, decreased revenue and a loss of market share to competitors.
The unavailability, reduction or elimination of government and economic incentives could have a material adverse effect on our business,
financial condition, operating results and prospects.
Any reduction, elimination or discriminatory application of government subsidies and economic incentives because of policy changes, the
reduced need for such subsidies and incentives due to the perceived success of the electric vehicle, fiscal tightening or other reasons may result
in the diminished competitiveness of the alternative fuel vehicle industry generally or our electric vehicles in particular. This could materially
and adversely affect the growth of the alternative fuel automobile markets and our business, prospects, financial condition and operating results.
Our growth depends in part on the availability and amounts of government subsidies and economic incentives for alternative fuel vehicles
generally and performance electric vehicles specifically. For example, we currently benefit from exemptions from California state sales and use
taxes for purchases of up to $612 million of manufacturing equipment from our arrangements with the California Alternative Energy and
Advanced Transportation Financing Authority. To the extent all of this equipment is purchased and would otherwise be subject to California
state sales and use tax, we believe this incentive would result in tax savings by us through January 2015. This exemption is only available for
equipment that would otherwise be subject to California sales and use taxes and that would be used only for specified purposes. If we fail to
meet these conditions, we would be unable to take full advantage of this tax incentive and our financial position could be harmed.
In addition, certain regulations and laws that encourage sales of electric cars through tax credits or other subsidies could be reduced,
eliminated or applied in a way that creates an adverse effect against our vehicles, either currently or at any time in the future. For example, while
the federal and state governments have from time to time enacted tax credits and other incentives for the purchase of alternative fuel cars,
funding for these programs is limited and there is no guarantee that our vehicles will be eligible for tax credits or other incentives provided to
alternative fuel vehicles in the future. This would put our vehicles at a competitive disadvantage. As an example at the state level, California
renewed the Clean Vehicle Rebate Program for 2012 – a rebate program for the purchase of qualified alternative technology vehicles. California
reduced the rebate amount from $5,000 per vehicle to $2,500 per vehicle due to fewer funds available and increased demand, but such funds may
run out.
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Subsequent purchasers could face a delay in receiving rebates since they would have to wait until the next fiscal year’s funding became available
or be unable to obtain a rebate at all. As an additional example, there is considerable discussion at the federal level over tax reform. Discussions
have included reducing or even eliminating the current $7,500 tax credit available to purchasers of qualified alternative fuel vehicles, including
Model S. Also, government disincentives have been enacted in Europe for gas-powered vehicles, which discourage the use of such vehicles and
allow us to set a higher sales price for the Tesla Roadster in Europe. In the event that such disincentives are reduced or eliminated, sales of
electric vehicles, including our Tesla Roadster and Model S, could be adversely affected. Furthermore, low volume manufacturers are exempt
from certain regulatory requirements in the United States and the European Union. This provides us with an advantage over high volume
manufacturers that must comply with such regulations. Once we reach a certain threshold number of sales in each of the United States and the
European Union, we will no longer be able to take advantage of such exemptions in the respective jurisdictions, which could lead us to incur
additional design and manufacturing expense. We do not anticipate that we will be able to take advantage of these exemptions with respect to
Model S which we plan to produce at significantly higher volumes than the Tesla Roadster.
If we are unable to grow our sales of electric vehicle components to original equipment manufacturers our financial results may suffer.
We may have trouble attracting and retaining powertrain customers which could adversely affect our business prospects and results.
Daimler and its affiliates and Toyota and its affiliates are currently the only customers of our electric powertrain sales and development services.
In 2012, we entered into a development agreement for the development of a full electric powertrain for a Daimler Mercedes-Benz B-class EV by
the end of 2013. We have not, however, yet completed our development activities or entered into an agreement to supply Daimler with
production electric powertrain systems. Should this not occur, our future sales growth and financial results would be adversely affected.
In July 2011, we entered into a supply and services agreement with Toyota for the supply of a validated electric powertrain system,
including a battery pack, charging system, inverter, motor, gearbox and associated software which will be integrated into an electric vehicle
version of the Toyota RAV4. Pursuant to this agreement, we expect that Toyota will pay us approximately $100 million between 2012 and 2014
based on our delivery of electric powertrain systems.
The payments to us under the Toyota agreement are not guaranteed and will only occur upon the delivery of powertrain systems that meet
Toyota’s specifications. Toyota is not obligated to buy any systems from us, and if Toyota does not order the anticipated systems from us, we
will not receive the revenues we anticipate from this agreement. This agreement further requires that we meet customary obligations such as
timely deliveries, warranty and product quality obligations. Our failure to meet these obligations could have a materially adverse impact on our
operating results. Additionally, although we have discussed new business opportunities with each of Daimler and Toyota, there is no guarantee
that we will be able to reach agreement with Daimler, Toyota or their respective affiliates regarding such opportunities at all or on terms and
conditions that are favorable to us. Even if we can attract and retain additional powertrain customers other than Daimler and Toyota, there is no
assurance that we can adequately pursue such opportunities simultaneously with the execution of our plans for our vehicles.
Our relationship with Daimler is subject to various risks which could adversely affect our business and future prospects.
Our relationship with Daimler poses various risks to us including:
•
potential loss of access to parts that Daimler is providing for Model S; and
•
potential loss of business and adverse publicity to our brand image if there are defects or other problems discovered with our electric
powertrain components that Daimler has incorporated into their vehicles.
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The occurrence of any of the foregoing could adversely affect our business, prospects, financial condition and operating results.
In addition, our exclusivity and intellectual property agreement with Daimler North America Corporation (DNAC), an affiliate of Daimler,
provides that, if a Daimler competitor offers to enter into a competitive strategic transaction with us, we are required to give DNAC notice of
such offer and DNAC will have a specified period of time in which to notify us whether it wishes to enter into such transaction with us on the
same terms as offered by the third party. Because we will be able to enter into such a transaction with a third party only if DNAC declines to do
so, this may decrease the likelihood that we will receive offers from third parties to enter into strategic arrangements in the future.
We may not be able to identify adequate strategic relationship opportunities, or form strategic relationships, in the future.
Strategic business relationships will be an important factor in the growth and success of our business. For example, our strategic
relationship with Daimler has provided us with various benefits and we have entered into an agreement for the supply of a validated electric
powertrain for the Toyota RAV4 with Toyota. However, there are no assurances that we will be able to identify or secure suitable business
relationship opportunities in the future or our competitors may capitalize on such opportunities before we do. Our strategic relationship with
Daimler involved Blackstar, an affiliate of Daimler, making a significant equity investment in us as well as a representative from Daimler,
joining our Board. In addition, Toyota made a significant equity investment in us concurrent with the closing of our IPO in July 2010. We may
not be able to offer similar benefits to other companies that we would like to establish and maintain strategic relationships with which could
impair our ability to establish such relationships. Moreover, identifying such opportunities could demand substantial management time and
resources, and negotiating and financing relationships involves significant costs and uncertainties. If we are unable to successfully source and
execute on strategic relationship opportunities in the future, our overall growth could be impaired, and our business, prospects and operating
results could be materially adversely affected.
The operation of our vehicles is different from internal combustion engine vehicles and our customers may experience difficulty operating
them properly, including difficulty transitioning between different methods of braking.
We have designed our vehicles to minimize inconvenience and inadvertent driver damage to the powertrain. In certain instances, these
protections may cause the vehicle to behave in ways that are unfamiliar to drivers of internal combustion vehicles. For example, we employ
regenerative braking to recharge the battery pack in most modes of vehicle operation. Our customers may become accustomed to using this
regenerative braking instead of the wheel brakes to slow the vehicle. However, when the vehicle is at maximum charge, the regenerative braking
is not needed and is not employed. Accordingly, our customers may have difficulty shifting between different methods of braking. In addition,
we use safety mechanisms to limit motor torque when the powertrain system reaches elevated temperatures. In such instances, the vehicle’s
acceleration and speed will decrease. Finally, if the driver permits the battery pack to substantially deplete its charge, the vehicle will
progressively limit motor torque and speed to preserve the charge that remains. The vehicle will lose speed and ultimately coast to a stop.
Despite several warnings about an imminent loss of charge, the ultimate loss of speed may be unexpected. There can be no assurance that our
customers will operate the vehicles properly, especially in these situations. Any accidents resulting from such failure to operate our vehicles
properly could harm our brand and reputation, result in adverse publicity and product liability claims, and have a material adverse affect on our
business, prospects, financial condition and operating results. In addition, if consumers dislike these features, they may choose not to buy
additional cars from us which could also harm our business and prospects.
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If we are unable to keep up with advances in electric vehicle technology, we may suffer a decline in our competitive position.
We may be unable to keep up with changes in electric vehicle technology and, as a result, may suffer a decline in our competitive position.
Any failure to keep up with advances in electric vehicle technology would result in a decline in our competitive position which would materially
and adversely affect our business, prospects, operating results and financial condition. Our research and development efforts may not be
sufficient to adapt to changes in electric vehicle technology. As technologies change, we plan to upgrade or adapt our vehicles and introduce new
models in order to continue to provide vehicles with the latest technology, in particular battery cell technology. However, our vehicles may not
compete effectively with alternative vehicles if we are not able to source and integrate the latest technology into our vehicles. For example, we
do not manufacture battery cells, which makes us dependent upon other suppliers of battery cell technology for our battery packs.
If we fail to manage future growth effectively as we rapidly grow our company, we may not be able to produce, market, sell and service
our vehicles successfully.
Any failure to manage our growth effectively could materially and adversely affect our business, prospects, operating results and financial
condition. We continue to expand our operations significantly, and additional significant expansion will be required, especially in connection
with the expansion of our network of Tesla stores, service centers and our mobile Tesla Rangers program across the United States as well as in
Europe and Asia. Our future operating results depend to a large extent on our ability to manage this expansion and growth successfully. Risks
that we face in undertaking this expansion include:
•
finding and training new personnel;
•
forecasting production and revenue;
•
controlling expenses and investments in anticipation of expanded operations;
•
establishing or expanding design, manufacturing, sales and service facilities;
•
implementing and enhancing manufacturing and administrative infrastructure, systems and processes;
•
addressing new markets; and
•
expanding international operations.
We intend to continue to hire a significant number of additional personnel, including manufacturing personnel, design personnel, engineers
and service technicians for our performance electric vehicles. Because our high-performance vehicles are based on a different technology
platform than traditional internal combustion engines, individuals with sufficient training in performance electric vehicles may not be available
to hire, and we will need to expend significant time and expense training the employees we do hire. Competition for individuals with experience
designing, manufacturing and servicing electric vehicles is intense, and we may not be able to attract, assimilate, train or retain additional highly
qualified personnel in the future. The failure to attract, integrate, train, motivate and retain these additional employees could seriously harm our
business and prospects.
If we are unable to attract and/or retain key employees and hire qualified management, technical vehicle engineering, and manufacturing
personnel, our ability to compete could be harmed and our stock price may decline.
The loss of the services of any of our key employees could disrupt our operations, delay the development and introduction of our vehicles
and services, and negatively impact our business, prospects and operating results as well as cause our stock price to decline. In particular, we are
highly dependent on the services of Elon Musk, our Chief Executive Officer, Product Architect and Chairman of our Board of Directors, and JB
Straubel, our Chief Technical Officer. None of our key employees is bound by an employment agreement for any specific
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term. There can be no assurance that we will be able to successfully attract and retain senior leadership necessary to grow our business. Our
future success depends upon our ability to attract and retain our executive officers and other key technology, sales, marketing, engineering,
manufacturing and support personnel and any failure to do so could adversely impact our business, prospects, financial condition and operating
results. We have in the past and may in the future experience difficulty in retaining members of our senior management team as well as
technical, vehicle engineering and manufacturing personnel due to various factors, such as a very competitive labor market for talented
individuals with automotive experience. In addition, we do not have “key person” life insurance policies covering any of our officers or other
key employees. Currently in Northern California, there is increasing competition for talented individuals with the specialized knowledge of
electric vehicles, software engineers and other skilled employees and this competition affects both our ability to retain key employees and hire
new ones. Our continued success depends upon our continued ability to hire and retain employees. Additionally, we compete with many mature
and prosperous companies in Northern California that have far greater financial resources than we do and thus can offer current or perspective
employees more lucrative incentive packages than we can. Any difficulties in retaining current employees or recruiting news ones would have an
adverse effect on our performance.
We are highly dependent on the services of Elon Musk, our Chief Executive Officer.
We are highly dependent on the services of Elon Musk, our Chief Executive Officer, Product Architect, Chairman of our Board of
Directors and largest stockholder. Although Mr. Musk spends significant time with Tesla and is highly active in our management, he does not
devote his full time and attention to Tesla. Mr. Musk also currently serves as Chief Executive Officer and Chief Technical Officer of Space
Exploration Technologies, a developer and manufacturer of space launch vehicles, and Chairman of SolarCity, a solar equipment installation
company.
Furthermore, our DOE Loan Facility provides that we will be in default under the facility in the event Mr. Musk and certain of his affiliates
fail to own, at any time prior to one year after we complete the project relating to Model S, at least 65% of the capital stock held by Mr. Musk
and such affiliates as of the date of the DOE Loan Facility. Mr. Musk’s shares of our capital stock are held directly by his personal trust.
Many members of our management team are new to the company or to the automobile industry, and execution of our business plan and
development strategy could be seriously harmed if integration of our management team into our company is not successful.
Our business could be seriously harmed if integration of our management team into our company is not successful. We expect that it will
take time for our new management team to integrate into our company and it is too early to predict whether this integration will be successful.
We have recently experienced significant changes in our management team and expect to continue to experience significant growth in our
management team. Our senior management team has only limited experience working together as a group. Specifically, three of the six members
of our senior management team have joined us within the last few years. This lack of long-term experience working together may impact the
team’s ability to collectively quickly and efficiently respond to problems and effectively manage our business. Although we are taking steps to
add senior management personnel that have significant automotive experience, many of the members of our current senior management team
have limited or no prior experience in the automobile or electric vehicle industries.
We are subject to various environmental and safety laws and regulations that could impose substantial costs upon us and negatively
impact our ability to operate our manufacturing facilities.
As an automobile manufacturer, we and our operations, both in the United States and abroad, are subject to national, state, provincial
and/or local environmental, health and safety laws and regulations, including laws relating to the use, handling, storage, disposal and human
exposure to hazardous materials. Environmental and health and safety laws and regulations can be complex, and we expect that our business and
operations will be
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affected by future amendments to such laws or other new environmental and health and safety laws which may require us to change our
operations, potentially resulting in a material adverse effect on our business. These laws can give rise to liability for administrative oversight
costs, cleanup costs, property damage, bodily injury and fines and penalties. Capital and operating expenses needed to comply with
environmental, health and safety laws and regulations can be significant, and violations may result in substantial fines and penalties, third party
damages, suspension of production or a cessation of our operations.
Contamination at properties formerly owned or operated by us, as well as at properties we will own and operate, and properties to which
hazardous substances were sent by us, may result in liability for us under environmental laws and regulations, including, but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which can impose liability for the full amount of
remediation-related costs without regard to fault, for the investigation and cleanup of contaminated soil and ground water, for building
contamination and impacts to human health and for damages to natural resources. The costs of complying with environmental laws and
regulations and any claims concerning noncompliance, or liability with respect to contamination in the future, could have a material adverse
effect on our financial condition or operating results. We may face unexpected delays in obtaining the necessary permits and approvals required
by environmental laws in connection with our manufacturing facilities that could require significant time and financial resources and negatively
impact our ability to operate these facilities, which would adversely impact our business prospects and operating results.
New United Motor Manufacturing, Inc. (NUMMI) has previously identified environmental conditions at the Tesla Factory which affect
soil and groundwater, and has undertaken efforts to address these conditions. Although we have been advised by NUMMI that it has documented
and managed the environmental issues at the Fremont site, we cannot currently determine with certainty the total potential costs to remediate
pre-existing contamination, and we may be exposed to material liability as a result of the existence of any environmental contamination at the
Fremont site.
As the owner of the Fremont site, we may be responsible under federal and state laws and regulations for the entire investigation and
remediation of any environmental contamination at the Fremont site, whether it occurred before or after the date we purchase the property. We
have reached an agreement with NUMMI under which, over a ten year period, we will pay the first $15.0 million of any costs of any
governmentally-required remediation activities for contamination that existed prior to the closing of the purchase for any known or unknown
environmental conditions (Remediation Activities), and NUMMI has agreed to pay the next $15.0 million for such Remediation Activities. Our
agreement provides, in part, that NUMMI will pay up to the first $15.0 million on our behalf if such expenses are incurred in the first four years
of our agreement, subject to our reimbursement of such costs on the fourth anniversary date of the closing.
On the ten-year anniversary of the closing or whenever $30.0 million has been spent on the Remediation Activities, whichever comes first,
NUMMI’s liability to us with respect to Remediation Activities ceases, and we are responsible for any and all environmental conditions at the
Fremont site. At that point in time, we have agreed to indemnify, defend, and hold harmless NUMMI from all liability, including attorney fees,
or any costs or penalties it may incur arising out of or in connection with any claim relating to environmental conditions and we have released
NUMMI for any known or unknown claims except for NUMMI’s obligations for representations and warranties under the agreement. As of
December 31, 2012, we have accrued $5.3 million related to these environmental liabilities.
There are no assurances that NUMMI will perform its obligations under our agreement and NUMMI’s failure to perform would require us
to undertake these obligations at a potentially significant cost and risk to our ability to increase the production capacity of, and operate, our Tesla
Factory. Any Remediation Activities or other environmental conditions at the Fremont site could harm our operations and the future use and
value of the Fremont site and could delay our production plans for Model S.
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Our business may be adversely affected by union activities.
Although none of our employees are currently represented by a labor union, it is common throughout the automobile industry generally for
many employees at automobile companies to belong to a union, which can result in higher employee costs and increased risk of work stoppages.
Our employees may join or seek recognition to form a labor union, or we may be required to become a union signatory. Additionally, disgruntled
ex-employees may actively encourage unionization of Tesla employees. Our automobile production facility in Fremont, California was
purchased from NUMMI. Prior employees of NUMMI were union members and our future work force at this facility may be inclined to vote in
favor of forming a labor union. We are also directly or indirectly dependent upon companies with unionized work forces, such as parts suppliers
and trucking and freight companies, and work stoppages or strikes organized by such unions could have a material adverse impact on our
business, financial condition or operating results. If a work stoppage occurs, it could delay the manufacture and sale of our performance electric
vehicles and have a material adverse effect on our business, prospects, operating results or financial condition. The mere fact that our labor force
could be unionized may harm our reputation in the eyes of some investors and thereby negatively affect our stock price. Additionally, the
unionization of our labor force could increase our employee costs and decrease our profitability, both of which could adversely affect our
business, prospects, financial condition and results of operations.
We are subject to substantial regulation, which is evolving, and unfavorable changes or failure by us to comply with these regulations
could substantially harm our business and operating results.
Our performance electric vehicles, the sale of motor vehicles in general and the electronic components used in our vehicles are subject to
substantial regulation under international, federal, state, and local laws. We have incurred, and expect to incur in the future, significant costs in
complying with these regulations. For example, the Clean Air Act requires that we obtain a Certificate of Conformity issued by the EPA and a
California Executive Order issued by the CARB with respect to emissions for our vehicles. We received a Certificate of Conformity for sales of
our Tesla Roadsters in 2008 and 2010, but did not receive a Certificate of Conformity for sales of the Tesla Roadster in 2009 until December 21,
2009. In January 2010, we and the EPA entered into an Administrative Settlement Agreement and Audit Policy Determination in which we
agreed to pay a civil administrative penalty in the sum of $275,000 for failing to obtain a Certificate of Conformity for sales of our vehicles in
2009 prior to December 21, 2009.
Regulations related to the electric vehicle industry and alternative energy are currently evolving and we face risks associated with changes
to these regulations such as:
•
the imposition of a carbon tax or the introduction of a cap-and-trade system on electric utilities could increase the cost of electricity;
•
increasingly stringent Clean Air Act emission regulations affecting power plants used to generate electricity could increase the cost
of electricity;
•
changes to the regulations governing the assembly and transportation of lithium-ion battery packs, such as the UN Recommendations
of the Safe Transport of Dangerous Goods Model Regulations or regulations adopted by the U.S. Pipeline and Hazardous Materials
Safety Administration (PHMSA) could increase the cost of lithium-ion battery packs or restrict their transport;
•
the amendment or rescission of the federal law and regulations mandating increased fuel economy in the United States, referred to as
the Corporate Average Fuel Economy (CAFE) standards could reduce new business opportunities for our powertrain sales and
development activities;
•
the amendment or rescission of federal greenhouse gas tailpipe emission regulations administered by EPA under the authority of the
Clean Air Act could reduce new business opportunities for our powertrain sales and development activities;
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•
increased sensitivity by regulators to the needs of established automobile manufacturers with large employment bases, high fixed
costs and business models based on the internal combustion engine could lead them to pass regulations that could reduce the
compliance costs of such established manufacturers or mitigate the effects of government efforts to promote alternative fuel vehicles;
and
•
changes to regulations governing the export of our products could increase our costs incurred to deliver products outside the United
States or force us to charge a higher price for our vehicles in such jurisdictions.
In addition, as the automotive industry moves towards greater use of electronics for vehicle systems, NHTSA and other regulatory bodies
may in the future increase regulation for these electronic systems as concerns about distracted driving increase. Such concerns could affect
electronic systems in Model S, including those used with the 17 inch display screen in Model S which could reduce the appeal of Model S or
require adjustments to the display screen’s functionality.
To the extent the laws change, some or all of our vehicles may not comply with applicable international, federal, state or local laws, which
would have an adverse effect on our business. Compliance with changing regulations could be burdensome, time consuming, and expensive. To
the extent compliance with new regulations is cost prohibitive, our business, prospects, financial condition and operating results will be
adversely affected.
We retain certain personal information about our customers and may be subject to various privacy and consumer protection laws.
We use our vehicles’ electronic systems to log information about each vehicle’s condition, performance and use in order to aid us in
providing customer service, including vehicle diagnostics, repair and maintenance, as well as to help us collect data regarding our customers’
charge time, battery usage, mileage and efficiency habits and to improve our vehicles. Our customers may object to the processing of this data,
which may negatively impact our ability to provide effective customer service and develop new vehicles and products. Collection and use of our
customers’ personal information in conducting our business may be subject to federal and/or state laws and regulations in the United States and
foreign jurisdictions, and such laws and regulations may restrict our processing of such personal information and hinder our ability to acquire
new customers or market to existing customers. We may incur significant expenses to comply with privacy, consumer protection and security
standards and protocols imposed by law, regulation, industry standards or contractual obligations. Although we take steps to protect the security
of our customers’ personal information, we may be required to expend significant resources to comply with data breach requirements if third
parties improperly obtain and use the personal information of our customers or we otherwise experience a data loss with respect to customers’
personal information. A major breach of our network security and systems could have serious negative consequences for our businesses and
future prospects, including possible fines, penalties and damages, reduced customer demand for our vehicles, and harm to our reputation and
brand.
We may become subject to product liability claims, which could harm our financial condition and liquidity if we are not able to
successfully defend or insure against such claims.
We may become subject to product liability claims, which could harm our business, prospects, operating results and financial condition.
The automobile industry experiences significant product liability claims and we face inherent risk of exposure to claims in the event our vehicles
do not perform as expected or malfunction resulting in personal injury or death. Our risks in this area are particularly pronounced given the
limited number of vehicles delivered to date and limited field experience of those vehicles, including Model S. A successful product liability
claim against us could require us to pay a substantial monetary award. Moreover, a product liability claim could generate substantial negative
publicity about our vehicles and business and inhibit or prevent commercialization of other future vehicle candidates which would have material
adverse effect on our brand, business, prospects and operating results. We self insure against the risk of product liability claims. Any lawsuit
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seeking significant monetary damages may have a material adverse effect on our reputation, business and financial condition. We may not be
able to secure additional product liability insurance coverage on commercially acceptable terms or at reasonable costs when needed, particularly
if we do face liability for our products and are forced to make a claim under our policy.
We may have difficulty satisfying safety requirements in different countries around the world where we plan to sell our vehicles.
In connection with the development and sale of Model S, Model X, and our future electric vehicles, we will need to comply with various
additional safety regulations and requirements that were not applicable to the sales of our Tesla Roadsters, with which it may be expensive or
difficult to comply. For example, we will need to pass a range of impact tests for our current and future vehicles. We performed similar tests on
the Tesla Roadster based on European Union testing standards in connection with sales exceeding certain volume thresholds in Australia and
Japan, and two criteria were not met in the test. We may experience difficulties in meeting all the criteria for these or similar tests for Model S
and Model X, which may delay our ability to sell Model S and Model X in high volumes in certain jurisdictions.
We may be compelled to undertake product recalls, which could adversely affect our brand image and financial performance.
Any product recall in the future may result in adverse publicity, damage our brand and adversely affect our business, prospects, operating
results and financial condition. We previously experienced product recalls in May 2009 and October 2010, both of which were unrelated to our
electric powertrain. In April 2009, we determined that a condition caused by insufficient torquing of the rear inner hub flange bolt existed in
some of our Tesla Roadsters, as a result of a missed process during the manufacture of the Tesla Roadster glider. In October 2010, we initiated a
product recall after the 12 volt, low voltage auxiliary cable in a single vehicle chafed against the edge of a carbon fiber panel in the vehicle
causing a short, smoke and possible fire behind the right front headlamp of the vehicle. In the future, we may at various times, voluntarily or
involuntarily, initiate a recall if any of our vehicles, including Model S, or electric powertrain components prove to be defective or noncompliant
with applicable federal motor vehicle safety standards. Such recalls, voluntary or involuntary, involve significant expense and diversion of
management attention and other resources, which could adversely affect our brand image in our target markets and could adversely affect our
business, prospects, financial condition and results of operations.
Our current and future warranty reserves may be insufficient to cover future warranty claims which could adversely affect our financial
performance.
If our warranty reserves are inadequate to cover future warranty claims on our vehicles, our business, prospects, financial condition and
operating results could be materially and adversely affected. We provide a three year or 36,000 mile New Vehicle Limited Warranty with every
Tesla Roadster, which we extended to four years or 50,000 miles for the purchasers of our 2008 Tesla Roadster. In addition, customers have the
opportunity to purchase Extended Service plans for the period after the end of the New Vehicle Limited Warranty for the Tesla Roadster to cover
additional services for up to an additional three years or 36,000 miles, provided they are purchased within a specified period of time. Subject to
separate limited warranties for the supplemental restraint system and battery, we provide a four year or 50,000 mile New Vehicle Limited
Warranty for the purchasers of Model S. The New Vehicle Limited Warranty for Model S covers the battery for a period of eight years or
100,000 miles, 125,000 miles or unlimited miles, depending on the size of the vehicle’s battery, although the battery’s charging capacity is not
covered under the New Vehicle Limited Warranty or any Extended Service plan. In addition, customers have the opportunity to purchase an
Extended Service plan for the period after the end of the New Vehicle Limited Warranty for Model S to cover additional services for an
additional four years or 50,000 miles, provided it is purchased within a specified period of time. The New Vehicle Limited Warranty and
Extended Service plans for each of the Tesla Roadster and Model S are subject to certain limitations, exclusions or separate warranties, including
certain wear items, such as tires, brake pads, paint and general appearance, and
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battery performance, and is intended to cover parts and labor to repair defects in material or workmanship in the vehicle including the body,
chassis, suspension, interior, electronic systems, powertrain and brake system. We have previously provided our Tesla Roadster customers with a
battery replacement option to replace the battery in their vehicles at any time after the expiration of the New Vehicle Limited Warranty but
before the tenth anniversary of the purchase date of their vehicles and also recently announced a battery replacement option for all three battery
variants of our Model S in which customers may purchase, within a specified period of time, a one-time option (subject to certain limitations and
exclusions) to replace the battery at any time before the twelfth anniversary of such purchase date, with certain price adjustments depending
upon the year the battery is replaced.
We record and adjust warranty reserves based on changes in estimated costs and actual warranty costs. However, we have limited
operating experience with our vehicles, and therefore little experience with warranty claims for these vehicles or with estimating warranty
reserves. Furthermore, reserves that we recorded for Model S may be insufficient to cover all future warranty claims.
Since we began initiating sales of our vehicles, we have continued to increase our warranty reserves based on our actual warranty claim
experience and we may be required to undertake further such increases in the future. As of December 31, 2012, we had warranty reserves of
$13.0 million, and such reserve amount will increase in the future as Model S is sold. We could in the future become subject to a significant and
unexpected warranty expense. There can be no assurances that our currently existing or future warranty reserves will be sufficient to cover all
claims or that our limited experience with warranty claims will adequately address the needs of our customers to their satisfaction.
We may need to defend ourselves against patent or trademark infringement claims, which may be time-consuming and would cause us to
incur substantial costs.
Companies, organizations or individuals, including our competitors, may hold or obtain patents, trademarks or other proprietary rights that
would prevent, limit or interfere with our ability to make, use, develop or sell our vehicles or components, which could make it more difficult for
us to operate our business. From time to time, we may receive inquiries from holders of patents or trademarks inquiring whether we infringe
their proprietary rights. Companies holding patents or other intellectual property rights relating to battery packs, electric motors or electronic
power management systems may bring suits alleging infringement of such rights or otherwise asserting their rights and seeking licenses. In
addition, if we are determined to have infringed upon a third party’s intellectual property rights, we may be required to do one or more of the
following:
•
cease selling, incorporating or using vehicles that incorporate the challenged intellectual property;
•
pay substantial damages;
•
obtain a license from the holder of the infringed intellectual property right, which license may not be available on reasonable terms or
at all; or
•
redesign our vehicles.
In the event of a successful claim of infringement against us and our failure or inability to obtain a license to the infringed technology, our
business, prospects, operating results and financial condition could be materially adversely affected. In addition, any litigation or claims, whether
or not valid, could result in substantial costs and diversion of resources and management attention.
We also license patents and other intellectual property from third parties, and we may face claims that our use of this in-licensed
technology infringes the rights of others. In that case, we may seek indemnification from our licensors under our license contracts with them.
However, our rights to indemnification may be unavailable or insufficient to cover our costs and losses, depending on our use of the technology,
whether we choose to retain control over conduct of the litigation, and other factors.
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Our business will be adversely affected if we are unable to protect our intellectual property rights from unauthorized use or infringement
by third parties.
Any failure to protect our proprietary rights adequately could result in our competitors offering similar products, potentially resulting in the
loss of some of our competitive advantage and a decrease in our revenue which would adversely affect our business, prospects, financial
condition and operating results. Our success depends, at least in part, on our ability to protect our core technology and intellectual property. To
accomplish this, we rely on a combination of patents, patent applications, trade secrets, including know-how, employee and third party
nondisclosure agreements, copyright laws, trademarks, intellectual property licenses and other contractual rights to establish and protect our
proprietary rights in our technology. We have also received from third parties patent licenses related to manufacturing our vehicles.
The protection provided by the patent laws is and will be important to our future opportunities. However, such patents and agreements and
various other measures we take to protect our intellectual property from use by others may not be effective for various reasons, including the
following:
•
our pending patent applications may not result in the issuance of patents;
•
our patents, if issued, may not be broad enough to protect our proprietary rights;
•
the patents we have been granted may be challenged, invalidated or circumvented because of the pre-existence of similar patented or
unpatented intellectual property rights or for other reasons;
•
the costs associated with enforcing patents, confidentiality and invention agreements or other intellectual property rights may make
aggressive enforcement impracticable;
•
current and future competitors may independently develop similar technology, duplicate our vehicles or design new vehicles in a way
that circumvents our patents; and
•
our in-licensed patents may be invalidated or the holders of these patents may seek to breach our license arrangements.
Existing trademark and trade secret laws and confidentiality agreements afford only limited protection. In addition, the laws of some
foreign countries do not protect our proprietary rights to the same extent as do the laws of the United States, and policing the unauthorized use of
our intellectual property is difficult.
Our patent applications may not result in issued patents, which may have a material adverse effect on our ability to prevent others from
commercially exploiting products similar to ours.
We cannot be certain that we are the first creator of inventions covered by pending patent applications or the first to file patent applications
on these inventions, nor can we be certain that our pending patent applications will result in issued patents or that any of our issued patents will
afford protection against a competitor. In addition, patent applications filed in foreign countries are subject to laws, rules and procedures that
differ from those of the United States, and thus we cannot be certain that foreign patent applications related to issued U.S. patents will result in
issued patents. Furthermore, even if these patent applications do result in issued patents, some foreign countries provide significantly less
effective patent enforcement than in the United States.
The status of patents involves complex legal and factual questions and the breadth of claims allowed is uncertain. As a result, we cannot be
certain that the patent applications that we file will result in patents being issued, or that our patents and any patents that may be issued to us in
the near future will afford protection against competitors with similar technology. In addition, patents issued to us may be infringed upon or
designed around by others and others may obtain patents that we need to license or design around, either of which would increase costs and may
adversely affect our business, prospects, financial condition and operating results.
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Our trademark applications in certain countries remain subject to outstanding opposition proceedings.
We currently sell and market our vehicles in various countries under our Tesla marks. We have filed trademark applications for our Tesla
marks and opposition proceedings to trademark applications of third parties in various countries in which we currently sell and plan to sell our
vehicles. Certain of our trademark applications are subject to outstanding opposition proceedings brought by owners or applicants alleging prior
use of similar marks. If we cannot resolve these oppositions and thereby secure registered rights in these countries, our ability to challenge third
party users of the Tesla marks will be reduced and the value of the marks representing our exclusive brand name in these countries will be
diluted. In addition, there is a risk that the prior rights owners could in the future take actions to challenge our use of the Tesla marks in these
countries. Such actions could have a severe impact on our position in these countries and may inhibit our ability to use the Tesla marks in these
countries. If we were prevented from using the Tesla marks in any or all of these countries, we would need to expend significant additional
financial and marketing resources on establishing an alternative brand identity in these markets.
We may be subject to claims arising from an airplane crash in which three of our employees died.
In February 2010, three of our employees died in a crash of an airplane owned and piloted by one of our employees. The plane crashed in a
neighborhood in East Palo Alto, California. The plane also clipped an electrical tower, causing a power loss and business interruption in parts of
Palo Alto, including Stanford University. The cause of the accident is under investigation by the National Transportation Safety Board.
In November 2010, a case was filed against us relating to the crash in California Superior Court. In that case, plaintiffs allege claims for
negligence, negligent infliction of emotional distress, trespass, and violations of federal and state aviation laws and regulations against all
defendants, and seek compensation for real property damage and loss of use, as well as personal property and emotional distress/bodily injury
claims. In December 2010, the plaintiffs settled claims for real property damage but retained their claims for emotional distress, bodily injury
and personal property damage. We believe that these remaining claims are covered by insurance.
As a result of the accident, other claims, including but not limited to those arising from loss of or damage to personal property, business
interruption losses or damage to the electrical tower and surrounding area, may be asserted against various parties including us. The time and
attention of our management may also be diverted in defending such claims. We may also incur costs both in defending against any claims and
for any judgments if such claims are adversely determined.
Our facilities or operations could be damaged or adversely affected as a result of disasters or unpredictable events.
Our corporate headquarters in Palo Alto and Tesla Factory in Fremont are located in Northern California, a region known for seismic
activity. If major disasters such as earthquakes, fires, floods, hurricanes, wars, terrorist attacks, computer viruses, pandemics or other events
occur, or our information system or communications network breaks down or operates improperly, our headquarters and production facilities
may be seriously damaged, or we may have to stop or delay production and shipment of our products. In addition, our lease for our Palo Alto
facility permits the landlord to terminate the lease following a casualty event if the needed repairs are in excess of certain thresholds and we do
not agree to pay for any uninsured amounts. We may incur expenses relating to such damages, which could have a material adverse impact on
our business, operating results and financial condition.
If our suppliers fail to use ethical business practices and comply with applicable laws and regulations, our brand image could be harmed
due to negative publicity.
Our core values, which include developing the highest quality electric vehicles while operating with integrity, are an important component
of our brand image, which makes our reputation particularly sensitive to
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allegations of unethical business practices. We do not control our independent suppliers or their business practices. Accordingly, we cannot
guarantee their compliance with ethical business practices, such as environmental responsibility, fair wage practices, appropriate sourcing of raw
materials, and compliance with child labor laws, among others. A lack of demonstrated compliance could lead us to seek alternative suppliers,
which could increase our costs and result in delayed delivery of our products, product shortages or other disruptions of our operations.
Violation of labor or other laws by our suppliers or the divergence of an independent supplier’s labor or other practices from those
generally accepted as ethical in the United States or other markets in which we do business could also attract negative publicity for us and our
brand. This could diminish the value of our brand image and reduce demand for our performance electric vehicles if, as a result of such violation,
we were to attract negative publicity. If we, or other manufacturers in our industry, encounter similar problems in the future, it could harm our
brand image, business, prospects, financial condition and operating results.
We are obligated to develop and maintain proper and effective internal control over financial reporting. We may not complete our analysis
of our internal control over financial reporting in a timely manner, or these internal controls may not be determined to be effective, which
may adversely affect investor confidence in our company and, as a result, the value of our common stock.
We are required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the
effectiveness of our internal control over financial reporting. This assessment includes disclosure of any material weaknesses identified by our
management in our internal control over financial reporting, as well as a statement that our independent registered public accounting firm has
issued an attestation report on the effectiveness of our internal control over financial reporting.
Complying with Section 404 requires a rigorous compliance program as well as adequate time and resources. As a result of developing,
improving and expanding our core information technology systems as well as implementing new systems to support our sales, engineering,
supply chain and manufacturing activities, all of which require significant management time and support, we may not be able to complete our
internal control evaluation, testing and any required remediation in a timely fashion. Additionally, if we identify one or more material
weaknesses in our internal control over financial reporting, we may be unable to assert that our internal controls are effective. For example, our
management concluded that our internal control over financial reporting was ineffective as of December 31, 2012 because a material weakness
existed in our internal control over financial reporting related to the presentation and disclosure of non-cash capital expenditures in our
consolidated statements of cash flows. If we are unable to assert that our internal control over financial reporting is effective, or if our
independent registered public accounting firm is unable to express an opinion on the effectiveness of our internal controls, we could lose investor
confidence in the accuracy and completeness of our financial reports, which would have a material adverse effect on the price of our common
stock.
Risks Related to the Ownership of our Common Stock
Concentration of ownership among our existing executive officers, directors and their affiliates may prevent new investors from
influencing significant corporate decisions.
As of December 31, 2012, our executive officers, directors and their affiliates beneficially owned, in the aggregate, approximately 35.0%
of our outstanding shares of common stock. In particular, Elon Musk, our Chief Executive Officer, Product Architect and Chairman of our Board
of Directors, beneficially owned approximately 27.5% of our outstanding shares of common stock as of December 31, 2012. As a result, these
stockholders will be able to exercise a significant level of control over all matters requiring stockholder approval, including the election of
directors, amendment of our certificate of incorporation and approval of significant corporate transactions. This control could have the effect of
delaying or preventing a change of control of our company or changes in management and will make the approval of certain transactions
difficult or impossible without the support of these stockholders.
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The trading price of our common stock is likely to continue to be volatile.
Our shares of common stock began trading on the Nasdaq Global Select Market on June 29, 2010 and therefore, the trading history for our
common stock has been limited. In addition, the trading price of our common stock has been highly volatile and could continue to be subject to
wide fluctuations in response to various factors, some of which are beyond our control. Our common stock has experienced an intra-day trading
high of $40.00 per share and a low of $25.52 per share over the last 52 weeks.
In addition, the stock market in general, and the market for technology companies in particular, has experienced extreme price and volume
fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Broad market and industry
factors may seriously affect the market price of companies’ stock, including ours, regardless of actual operating performance. These fluctuations
may be even more pronounced in the trading market for our stock during the period following a securities offering. In addition, in the past,
following periods of volatility in the overall market and the market price of a particular company’s securities, securities class action litigation has
often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our
management’s attention and resources.
A majority of our total outstanding shares are held by insiders and may be sold in the near future. The large number of shares eligible for
public sale or subject to rights requiring us to register them for public sale could depress the market price of our common stock.
The market price of our common stock could decline as a result of sales of a large number of shares of our common stock in the market in
the future, and the perception that these sales could occur may also depress the market price of our common stock. Stockholders owning a
majority of our total outstanding shares are entitled, under contracts providing for registration rights, to require us to register shares of our
common stock owned by them for public sale in the United States, subject to the restrictions of Rule 144. In addition, we have registered shares
previously issued or reserved for future issuance under our equity compensation plans and agreements, a portion of which are related to
outstanding option awards. Subject to the satisfaction of applicable exercise periods and, in certain cases, lock-up agreements, the shares of
common stock issued upon exercise of outstanding options will be available for immediate resale in the United States in the open market. Sales
of our common stock as restrictions end or pursuant to registration rights may make it more difficult for us to sell equity securities in the future
at a time and at a price that we deem appropriate. These sales also could cause our stock price to fall and make it more difficult for you to sell
shares of our common stock.
Mr. Musk borrowed funds from an affiliate of our underwriter in our public offering in 2011 and pledged shares of our common stock to
secure this borrowing. The forced sale of these shares pursuant to a margin call could cause our stock price to decline and negatively
impact our business.
In June 2011, Goldman Sachs Bank USA, an affiliate of Goldman, Sachs & Co., made a loan in the amount of $35 million to Elon Musk
and the Elon Musk Revocable Trust dated July 22, 2003, or the Trust. Interest on the loan accrues at market rates. Goldman Sachs Bank USA
received customary fees and expense reimbursements in connection with this loan. Goldman Sachs Bank USA made additional extensions of
credit in an aggregate amount of $50 million to Elon Musk and the Trust and Mr. Musk used a portion of the proceeds of such loans to purchase
shares in our June 2011 private placement. Interest on the loans will accrue at market rates. Goldman Sachs Bank USA received customary fees
and expense reimbursements in connection with these loans. As a regulated entity, Goldman Sachs Bank USA makes decisions regarding
making and managing its loans independent of Goldman, Sachs & Co. Mr. Musk and Goldman have a long-standing relationship of almost a
decade. We are not a party to these loans, which are full recourse against Mr. Musk and the Trust and are secured by a pledge of a portion of the
Tesla common stock currently owned by Mr. Musk and the Trust and other shares of capital stock of unrelated entities owned by Mr. Musk and
the Trust. The terms of these loans were negotiated directly between Mr. Musk and Goldman Sachs Bank USA.
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If the price of our common stock declines, Mr. Musk may be forced by Goldman Sachs Bank USA to provide additional collateral for the
loans or to sell shares of Tesla common stock in order to remain within the margin limitations imposed under the terms of his loans. The loans
between Goldman Sachs Bank USA and Mr. Musk and the Trust prohibit the non-pledged shares currently owned by Mr. Musk and the Trust
from being pledged to secure other loans. In addition, our DOE Loan Facility requires Mr. Musk and certain of his affiliates, until one year after
we complete the project relating to the Model S Facility, to own at least 65% of the Tesla capital stock held by them as of the date of the DOE
Loan Facility, and a failure to comply would be an event of default that could result in an acceleration of all obligations under the DOE Loan
Facility documents and the exercise of other remedies by the DOE. These factors may limit Mr. Musk’s ability to either pledge additional shares
of Tesla common stock or sell shares of Tesla common stock as a means to avoid or satisfy a margin call with respect to his pledged Tesla
common stock in the event of a decline in our stock price that is large enough to trigger a margin call. Any sales of common stock following a
margin call that is not satisfied may cause the price of our common stock to decline further.
Anti-takeover provisions contained in our certificate of incorporation and bylaws, as well as provisions of Delaware law, could impair a
takeover attempt.
Our certificate of incorporation, bylaws and Delaware law contain provisions which could have the effect of rendering more difficult,
delaying or preventing an acquisition deemed undesirable by our board of directors. Our corporate governance documents include provisions:
•
creating a classified board of directors whose members serve staggered three-year terms;
•
authorizing “blank check” preferred stock, which could be issued by the board without stockholder approval and may contain voting,
liquidation, dividend and other rights superior to our common stock;
•
limiting the liability of, and providing indemnification to, our directors and officers;
•
limiting the ability of our stockholders to call and bring business before special meetings;
•
requiring advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations
of candidates for election to our board of directors;
•
controlling the procedures for the conduct and scheduling of board and stockholder meetings; and
•
providing the board of directors with the express power to postpone previously scheduled annual meetings and to cancel previously
scheduled special meetings.
These provisions, alone or together, could delay or prevent hostile takeovers and changes in control or changes in our management.
As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation
law, which prevents some stockholders holding more than 15% of our outstanding common stock from engaging in certain business
combinations without approval of the holders of substantially all of our outstanding common stock.
Any provision of our certificate of incorporation or bylaws or Delaware law that has the effect of delaying or deterring a change in control
could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that
some investors are willing to pay for our common stock.
If securities or industry analysts publishing research or reports about us, our business or our market change their recommendations
regarding our stock adversely or cease to publish research or reports about us, our stock price and trading volume could decline.
The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish
about us, our business, our market or our competitors. If any of the analysts who may cover us change their recommendation regarding our stock
adversely, or provide more favorable relative
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recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our
company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or
trading volume to decline.
We do not expect to declare any dividends in the foreseeable future.
We do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. Consequently, investors may
need to rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their
investment. Investors seeking cash dividends should not purchase our common stock.
ITEM 1B.
UNRESOLVED STAFF COMMENTS
None.
ITEM 2.
PROPERTIES
Our corporate headquarters is based in Palo Alto, California. We have a lease with Stanford University for 350,000 square feet which
expires in January 2020 and houses our headquarters and powertrain activities. In May 2010, we entered into an agreement to purchase an
existing automobile production facility located in Fremont, California from NUMMI, which is a joint venture between Toyota, and Motors
Liquidation Company, the owner of selected assets of General Motors. In October 2010, we completed the purchase and received title to the
facility and land (Tesla Factory). The total cash paid was $42.0 million. The purchase totaled 210 acres, or approximately 55% of the land at the
site, and included all of the manufacturing facilities located thereon totaling approximately 5.4 million square feet. We are required to comply
with environmental regulations in connection with our Tesla Factory in Fremont, California. In October 2010, we and NUMMI amended the
May 2010 purchase agreement to include the transfer to us of certain operating permits, or emission credits, for additional consideration of $6.5
million. We completed the transfer of these permits in October 2010. We commenced the production of our Model S vehicle and powertrain
components and systems in June 2012 at Tesla Factory. We also intend to build our future vehicles at Tesla Factory.
Outside of our Tesla Factory, we do not currently own any of our facilities. The following table sets forth the location, approximate size
and primary use of our significant leased facilities:
Approximate
Size (Building)
Location (1)
in Square Feet
Palo Alto, California
350,000
Hawthorne, California
Maidenhead, United Kingdom
132,250
8,870
Tilburg, Netherlands
203,772
(1)
Lease
Expiration
Date
Primary Use
Administration, engineering services and
powertrain development services
Vehicle engineering and design services
Administration, sales, service and marketing
services
Administration, engineering services, powertrain
development services, parts warehousing, final
vehicle assembly and vehicle service
January 2020
December 2022
November 2015
November 2023
We also lease a number of facilities for our retail locations around the world, most of which are 5,000 square feet or smaller.
We currently intend to add new facilities or expand our existing facilities as we add employees and expand our network of stores and
galleries, service locations and Supercharger sites. We believe that suitable additional or alternative space will be available in the future on
commercially reasonable terms to accommodate our foreseeable future expansion.
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ITEM 3.
LEGAL PROCEEDINGS
From time to time, we are subject to various legal proceedings that arise from the normal course of business activities. In addition, from
time to time, third parties may assert intellectual property infringement claims against us in the form of letters and other forms of
communication. If an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on our results of operations,
prospects, cash flows, financial position and brand.
PART II
ITEM 5.
MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
Market Information
Our common stock has traded on The NASDAQ Global Select Market under the symbol “TSLA” since it began trading on June 29, 2010.
Our initial public offering was priced at $17.00 per share on June 28, 2010. The following table sets forth, for the time period indicated, the high
and low closing sales price of our common stock as reported on The NASDAQ Global Select Market.
2012
First Quarter
Second Quarter
Third Quarter
Fourth Quarter
2011
High
Low
High
Low
$37.94
38.01
35.96
35.28
$22.79
27.56
26.10
27.33
$28.71
31.50
30.44
35.00
$21.11
24.20
21.50
22.93
Holders
As of January 31, 2013, there were 534 holders of record of our common stock. A substantially greater number of holders of our common
stock are “street name” or beneficial holders, whose shares are held by banks, brokers and other financial institutions.
Dividend Policy
We have never declared or paid cash dividends on our common stock. We currently do not anticipate paying any cash dividends in the
foreseeable future. Any future determination to declare cash dividends will be made at the discretion of our board of directors, subject to
applicable laws and compliance with certain covenants under our loan facility with the United States Department of Energy, which restrict or
limit our ability to pay dividends, and will depend on our financial condition, results of operations, capital requirements, general business
conditions and other factors that our board of directors may deem relevant.
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Stock Performance Graph
This performance graph shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the
Exchange Act), or incorporated by reference into any filing of Tesla Motors, Inc. under the Securities Act of 1933, as amended, or the Exchange
Act, except as shall be expressly set forth by specific reference in such filing.
The following graph shows a comparison from June 29, 2010 through December 31, 2012, of the cumulative total return for our common
stock, the NASDAQ Composite Index, and a group of all public companies sharing the same SIC code as us which is SIC code 3711, “Motor
Vehicles and Passenger Car Bodies” (Motor Vehicles and Passenger Car Bodies Public Company Group). Such returns are based on historical
results and are not intended to suggest future performance. Data for The NASDAQ Composite Index and the Motor Vehicles and Passenger Car
Bodies Public Company Group assumes an investment of $100 on June 29, 2010 and reinvestment of dividends. We have never declared or paid
cash dividends on our capital stock nor do we anticipate paying any such cash dividends in the foreseeable future.
Unregistered Sales of Equity Securities
On July 2, 2010, we sold 2,941,176 shares of our common stock to Toyota Motor Corporation at a price of $17.00 per share, for aggregate
proceeds of $50.0 million.
On November 2, 2010, we sold 1,418,573 shares of our common stock to an entity affiliated with Panasonic Corporation at a price of
$21.148 per share, for aggregate proceeds of $30.0 million.
On June 2, 2011, we sold 1,416,000 shares of our common stock to Elon Musk, our Chief Executive Officer and cofounder, and 637,475
shares of our common stock to Blackstar InvestCo LLC, an affiliate of Daimler AG (Daimler) at a price of $28.76 per share, for aggregate
proceeds of $59.1 million.
The shares described above were issued in private transactions pursuant to Section 4(2) of the Securities Act of 1933, as amended.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
None.
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ITEM 6.
SELECTED FINANCIAL DATA
The following selected consolidated financial data should be read in conjunction with “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” and our consolidated financial statements and the related notes included elsewhere in this Annual
Report on Form 10-K.
The following selected consolidated financial data table also reflects the 1-for-3 reverse stock split of our outstanding common stock
effected in May 2010.
Year Ended December 31,
2011
2010
2009
(in thousands, except share and per share data)
2012
Consolidated Statements of Operations Data:
Revenues:
Automotive sales
Development services
Total revenues
Cost of revenues (1):
Automotive sales
Development services
Total cost of revenues
Gross profit (loss)
Operating expenses (1):
Research and development (net of
development compensation of $23,249 for
the year ended December 31, 2009)
Selling, general and administrative
Total operating expenses
Loss from operations
Interest income
Interest expense
Other expense, net (2)
Loss before income taxes
Provision for income taxes
Net loss
Net loss per share of common stock, basic
and diluted (3)
Weighted average shares used in computing
net loss per share of common stock, basic
and diluted (3)
(1)
$
385,699
27,557
413,256
$
148,568
55,674
204,242
371,658
11,531
383,189
30,067
115,482
27,165
142,647
61,595
$
273,978
150,372
424,350
(394,283)
288
(254)
(1,828)
(396,077)
136
(396,213)
$
208,981
104,102
313,083
(251,488)
255
(43)
(2,646)
(253,922)
489
(254,411)
$
(3.69)
$
(2.53)
107,349,188
100,388,815
$
97,078
19,666
116,744
$ 111,943
—
111,943
79,982
6,031
86,013
30,731
102,408
—
102,408
9,535
2008
$
14,742
—
14,742
15,883
—
15,883
(1,141)
92,996
84,573
177,569
(146,838)
258
(992)
(6,583)
(154,155)
173
$ (154,328)
19,282
42,150
61,432
(51,897)
159
(2,531)
(1,445)
(55,714)
26
$ (55,740)
53,714
23,649
77,363
(78,504)
529
(3,747)
(963)
(82,685)
97
$ (82,782)
$
$
$
(3.04)
50,718,302
(7.94)
7,021,963
(12.46)
6,646,387
Includes stock-based compensation expense as follows:
Year Ended December 31,
2011
2010
2012
Cost of revenues
Research and development
Selling, general and administrative
Total
$ 2,194
26,580
21,371
$50,145
64
$
670
13,377
15,372
$29,419
$
243
4,139
16,774
$21,156
2009
2008
61
376
997
$1,434
$ 26
125
286
$437
$
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(2)
(3)
In January 2010, we issued a warrant to the Department of Energy (DOE) in connection with the closing of our DOE loan facility to
purchase shares of our Series E convertible preferred stock. This convertible preferred stock warrant became a warrant to purchase shares
of our common stock upon the closing of our initial public offering (IPO) in July 2010. Beginning on December 15, 2018 and until
December 14, 2022, the shares subject to purchase under the warrant will become exercisable in quarterly amounts depending on the
average outstanding balance of our the DOE loan facility during the prior quarter. Since the number of shares of common stock ultimately
issuable under the warrant will vary, this warrant will be carried at its estimated fair value with changes in the fair value of this common
stock warrant liability reflected in other expense, net, until its expiration or vesting. Potential shares of common stock issuable upon
exercise of the DOE warrant will be excluded from the calculation of diluted net loss per share of common stock until at least such time as
we generate a net profit in a given period.
Diluted net loss per share of common stock is computed excluding common stock subject to repurchase, and, if dilutive, potential shares of
common stock outstanding during the period. Potential shares of common stock consist of stock options to purchase shares of our common
stock and warrants to purchase shares of our convertible preferred stock (using the treasury stock method) and the conversion of our
convertible preferred stock and convertible notes payable (using the if-converted method). For purposes of these calculations, potential
shares of common stock have been excluded from the calculation of diluted net loss per share of common stock as their effect is
antidilutive since we generated a net loss in each period.
Consolidated Balance Sheet Data:
Cash and cash equivalents
Short-term marketable securities
Restricted cash—current (1)
Property, plant and equipment, net (2)
Working capital (deficit)
Total assets
Convertible preferred stock warrant liability (3)
Common stock warrant liability (3)
Capital lease obligations, less current portion
Long-term debt, less current portion (4)
Convertible preferred stock
Total stockholders’ equity (deficit)
(1)
(2)
(3)
(4)
2012
2011
As of December 31,
2010
2009
$ 201,890
—
19,094
552,229
(14,340)
1,114,190
—
10,692
9,965
401,495
—
124,700
255,266
25,061
23,476
298,414
181,499
713,448
—
8,838
2,830
268,335
—
224,045
$ 99,558
—
73,597
114,636
150,321
386,082
—
6,088
496
71,828
—
207,048
$ 69,627
—
—
23,535
43,070
130,424
1,734
—
800
—
319,225
(253,523)
2008
$
9,277
—
—
18,793
(56,508)
51,699
2,074
—
888
—
101,178
(199,714)
Upon the completion of our IPO and concurrent Toyota private placement in July 2010, we set aside $100.0 million to fund a restricted
dedicated account as required under the provisions of our DOE loan facility. This dedicated account has been used by us to fund any cost
overruns for our projects and used as a mechanism to defer advances under the DOE loan facility. Depending on the timing and magnitude
of our draw-downs and the funding requirements of the dedicated account, the balance of the dedicated account has fluctuated throughout
the period in which we made draw-downs under the DOE loan facility. Upon completion of our final advance under the DOE loan facility
in August 2012, the balance in the dedicated account had been fully transferred out of the dedicated account. Currently, we utilize the
dedicated account to pre-fund our planned loan repayments as required by the DOE loan facility.
In October 2010, we completed the purchase of our Tesla Factory and certain of the manufacturing assets located thereon.
In January 2010, we issued a warrant to the DOE in connection with the closing of our DOE loan facility to purchase shares of our Series E
convertible preferred stock. This convertible preferred stock warrant became a warrant to purchase shares of our common stock upon the
closing of our IPO in July 2010.
In January 2010, we closed our DOE loan facility and began making draw downs under the loan facility As of August 31, 2012, we had
fully drawn down our $465.0 million DOE loan facility.
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ITEM 7.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with our consolidated financial statements and the related notes that
appear elsewhere in this Annual Report on Form 10-K.
Overview and 2012 Highlights
We design, develop, manufacture and sell high-performance fully electric vehicles and advanced electric vehicle powertrain components.
We introduced our first vehicle, the Tesla Roadster, in early 2008. The Roadster’s proprietary electric vehicle powertrain system is the
foundation of our powertrain technology and, with design enhancements, forms the basis for our Model S sedan, our Model X crossover and
other future vehicles. We are targeting our second vehicle, the Model S sedan, for a significantly broader customer base than the Tesla Roadster
and are manufacturing Model S in significantly higher volumes than those for the Tesla Roadster. We commenced deliveries of Model S in June
2012 and increased production to an annualized rate of 20,000 per year by the end of 2012. In February 2012, we revealed an early prototype of
the Model X crossover, a vehicle based on the Model S platform. We plan to start Model X production in late 2014. We sell our vehicles through
our own our sales and service network.
During the year ended December 31, 2012, we recognized total revenues of $413.3 million, an increase of 102% over total revenues of
$204.2 million for the year ended December 31, 2011. Automotive sales revenue of $385.7 million increased 160% from the year ended
December 31, 2011, driven by commencement of Model S deliveries in North America, regulatory credit sales and customer demand for our
remaining Tesla Roadsters internationally, partially offset by lower powertrain component sales. Lower powertrain component sales resulted
from the completion of the Daimler AG (Daimler) Smart fortwo and A-Class EV programs at the end of 2011, partially offset by powertrain
systems that we began to sell to Toyota for the Toyota RAV4 EV in 2012.
Development services revenue decreased to $27.6 million for the year ended December 31, 2012 from $55.7 million for the year ended
December 31, 2011, due primarily to the completion of our development activities for the Toyota RAV4 EV program during the first quarter of
2012. In 2012, we began work on a full electric powertrain under the Mercedes-Benz B-Class EV program. The majority of our 2012
development services revenue was from the achievement of milestones and deliveries of prototype samples to Daimler under this program.
In June 2012, we commenced deliveries of Model S to customers in the United States. Our timely launch of Model S represented an
important milestone, transitioning us from significant activities in Model S development and our preparation for vehicle manufacturing at the
Tesla Factory, to the process of ramping up for volume production in the months that followed. Gross margin for the year ended December 31,
2012 was 7.3%. Although we produced over 3,100 Model S vehicles during the year, we still experienced significant early-stage higher per unit
costs inefficiencies during the production ramp from June to December as a result of lower fixed cost absorption, manufacturing inefficiencies
associated with the initial production ramp and higher logistics costs as our supply chain processes continued to mature. We also had higher
component prices as many vendors were supplying parts at production prices later than planned due to their own manufacturing inefficiencies.
Research and development (R&D) expenses included expenses related to our Model S pre-production activities, including manufacturing
preparedness, process validation, prototype builds and extensive testing at both the vehicle and component levels; development of the Tesla
Factory; development and testing of Model S, including activities to homologate Model S for the rest of the world and to introduce the 60 kWh
and 40 kWh battery pack options; development, design and engineering activities related to Model X; and other research and development
activities. Research and development expenses for the year ended December 31, 2012 were $274.0 million, compared to $209.0 million for the
year ended December 31, 2011. As the Model S production in the Tesla Factory became fully operational in 2012, Model S related
manufacturing costs, including direct parts, material and labor costs, manufacturing overhead and amortized tooling, and logistics, were no
longer captured in R&D expenses but instead fully reflected in cost of automotive sales.
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Significant construction activity took place in 2012 as we readied the Tesla Factory to begin production of the Model S. During the first
half of the year, we completed the installation of Model S manufacturing equipment, tested and qualified our manufacturing equipment, and
continued to fine-tune our production processes while incorporating a higher percentage of production-intent components into Model S vehicles.
By mid-year, a significant portion of our Model S manufacturing-related assets were ready for their intended use and we began to depreciate
these assets. As a result of investments made in the Tesla Factory and related supplier tooling for Model S, capital expenditures increased to
$239.2 million for the year ended December 31, 2012, compared to $184.2 million for the year ended December 31, 2011.
During the year, we further expanded our company-owned retail network with the opening of several more stores and service centers,
primarily in the United States. At year end, we had 32 stores and galleries around the world. We also successfully launched our Supercharger
network in California as well as our first two Superchargers on the east coast. With the higher expenses associated with the expansion of our
store network and service infrastructure as well as the growth of our business in general, we incurred selling, general and administrative
expenses of $150.4 million for the year ended December 31, 2012, compared to $104.1 million for the year ended December 31, 2011.
We ended the year with $221.0 million in cash and cash equivalents, and current restricted cash. In addition to cash received from our
revenue generating and reservation-taking activities, we funded our operations in 2012 primarily from the proceeds of our follow-on offering,
fully drawing down our Department of Energy Loan Facility (DOE Loan Facility) as well as careful working capital management.
In October 2012, we completed a follow-on offering of 7,964,601 shares of our common stock and received cash proceeds of $222.1
million from this transaction, net of underwriting discounts (which included 35,398 shares sold to Elon Musk, our Chief Executive Officer and
cofounder, for an aggregate amount of $1.0 million).
During the year ended December 31, 2012, we received $188.8 million in draw-downs under the DOE Loan Facility, which completed our
draw down of the $465.0 million facility. During the fourth quarter, we made the first quarterly principal payment of $12.7 million to repay the
loans to the DOE on schedule. Additionally, we had set aside $14.6 million for our second quarterly DOE payment, which is due in March 2013
and is classified in current restricted cash. In March 2013, we entered into a fourth amendment of our DOE Loan Facility. For more information,
see Note 8 to our Consolidated Financial Statements included in this Annual Report on Form 10-K under Item 8. Financial Statements and
Supplemental Data.
We expect that our current sources of liquidity together with our current projections of cash flow from operating activities, will provide us
adequate liquidity as we attempt to reach profitability in 2013, based on our current plans. Additionally, we currently expect to be near breakeven on cash flow from operations during the first quarter of 2013.
Management Opportunities, Challenges and Risks
Our principal focus in 2012 was on completing the development of Model S, establishing our manufacturing capabilities at the Tesla
Factory, launching Model S and ramping up the production rate. While we successfully commenced deliveries of Model S to customers in the
United States in June 2012, our attention during the second half of 2012 switched to the continued refinement of our manufacturing and supply
chain processes to enable high volume production at the Tesla Factory while maintaining high quality standards. By year end, we had
successfully increased production volume to over 400 vehicles per week for three consecutive weeks in December. This established a production
level that will allow us to achieve our goal of 20,000 Model S deliveries in 2013, provided that we also ramp deliveries to the same rate.
Having achieved our steady-state production level in 2012, we expect automotive sales to increase significantly in 2013 as compared with
2012. We plan to start European deliveries of the Model S this summer
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and Asian deliveries later in 2013. In addition, we have now started delivering Model S with the 60 kWh battery pack and delivery of cars with
the 40 kWh battery pack is expected to begin this summer.
We offer a variety of methods by which customers can take delivery of their Model S, including delivery at home or at the Tesla Factory.
In order to ramp deliveries of Model S to meet our forecasted sales, we have made and will continue to make enhancements to the delivery
process. Should these delivery process enhancements not achieve our objectives, the timing of automotive sales recognition will be delayed and
will have a significant impact on the projected growth in our revenues.
In addition to sales of Model S, we will continue to recognize automotive sales from our supply of powertrain components and systems to
Toyota for the Toyota RAV4 EV, and to a lesser extent, sales of the Tesla Roadster. During the first quarter of 2012, we began shipping
powertrain systems to Toyota under a supply and services agreement for the Toyota RAV4 EV. Pursuant to the agreement, Toyota will pay us
approximately $100 million from 2012 through 2014 based on our delivery of the powertrain systems for the Toyota RAV4 EV. In January
2012, we concluded the production run of our current generation Tesla Roadster at 2,500 vehicles. As of December 31, 2012, we had sold most
of our remaining Roadsters.
In 2012, we began work on a full electric powertrain under the Mercedes-Benz B-Class EV program. Under this program, we will continue
to provide development services and deliver prototype samples in 2013. Similar to our previous development services agreements, due to timing
differences that may arise between the recognition of milestone revenues and the underlying costs of development services, the gross margin
from our development services activities may vary from period to period.
Although we produced over 3,100 Model S vehicles in 2012, we still experienced higher per unit costs during the latter part of the year as a
result of lower fixed cost absorption, manufacturing inefficiencies associated with the initial production ramp and higher logistics costs as our
supply chain processes continued to mature. We also had higher component prices as many vendors supplied parts at production prices later than
planned due to their own manufacturing inefficiencies.
As we enter 2013, production efficiency on a per vehicle basis is improving substantially as we continue to stabilize and improve our
production processes, as further cost reduction efforts are undertaken by both us and our suppliers and as we continue to sell regulatory credits.
We expect first quarter material, labor and overhead costs to be substantially lower than the fourth quarter of 2012, and for this trend to continue
throughout 2013.
We expect our gross margin in the first quarter of 2013 to exceed that in the fourth quarter of 2012 and to continue to rise to our target of
25% in the second half of 2013, despite an anticipated decrease in Model S average selling prices resulting from the introduction of lower priced
Model S battery variants and a much lower contribution from regulatory credit sales, partially offset by higher average selling prices on
international sales that begin in the second half and increase into the fourth quarter of 2013. There is no guarantee that we will be able to achieve
the planned cost reductions from our various cost savings initiatives, which would negatively affect our ability to reach our gross margin goals.
Longer term, regulatory credit revenue should decline relative to our automotive sales as we grow our sales outside the United States and
earn fewer credits on the lower priced Model S battery variants While we will pursue opportunities to monetize the credits we earn from the
sales of our vehicles, we do not plan to rely on such sales to be a significant contributor to gross margin, and our business model is not
predicated on such regulatory credits. However, if we are unable to sell regulatory credits in the short term, our revenues, gross margin and
profitability would be negatively impacted.
In February 2012, we revealed an early prototype of the Model X crossover as the first vehicle we intend to develop by leveraging the
Model S platform. We currently plan to start production of Model X in late 2014. Our ability to develop and introduce the Model X in this
timeframe is based partially on our expectations of
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leveraging the Model S platform. If there is a lower level of commonality between Model S and Model X than anticipated, our future
development and tooling costs may exceed expectations.
At year end, we had 32 stores and galleries around the world. We plan to open 15 to 20 more stores and galleries in 2013 with about half
the openings in Europe and Asia to support our expansion into these regions during the second half of 2013. Notably, we have already started
construction of our first store in Beijing, China in preparation for its planned opening this spring. At the end of 2012, we also had 29 service
locations around the world. We plan to double this number by the end of 2013 to keep pace with the growing fleet of customer cars.
In 2012, we invited a large number of reservation holders to configure their cars. Converting these reservations to firm, non-refundable
orders increased cancellations, as expected. After deliveries and cancellations, our net reservations as of December 31, 2012, were over 15,000.
New reservations continue at a steady, although slower pace in the first quarter of 2013, as compared to December 2012, due in part to the pull
ahead of reservations into 2012 by customers seeking to avoid our announced 2013 price increase. First quarter 2013 cancellations are likely to
remain elevated as the remaining older reservation holders are invited to configure their vehicles within a set timeframe or pay the higher price
just like new reservation holders.
In 2012, we successfully launched Superchargers in California, and on the east coast of the United States. Construction planning is
underway to install additional Superchargers in 2013. Our plan is to expand coverage on the U.S. west and east coasts, and around the rest of the
country.
Through the combination of improved gross margin, lower research and development expenses, as well as measured spending to support
the expansion of our sales and service infrastructure and the general growth of the business, we expect to be profitable in the first quarter of 2013
and experience breakeven cash flow from operations. The achievement of operational and manufacturing efficiencies will drive some
adjustments in our personnel, primarily affecting contractor and temporary employees. At the same time, we are continuing to hire and convert
to full-time key talent where required.
In 2013, we plan to spend significantly less on capital expenditures than we did in 2012, as we have concluded the majority of our
investment in the Tesla Factory and Model S tooling. This reduction will be partially offset by expenditures related to expanding our service and
store network, investing in new capital equipment and tooling to reduce variable costs and new product development.
Critical Accounting Policies and Estimates
Our consolidated financial statements are prepared in accordance with accounting principles generally accepted in the United States. The
preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets,
liabilities, revenues, costs and expenses and related disclosures. We base our estimates on historical experience, as appropriate, and on various
other assumptions that we believe to be reasonable under the circumstances. Changes in the accounting estimates are reasonably likely to occur
from period to period. Accordingly, actual results could differ significantly from the estimates made by our management. We evaluate our
estimates and assumptions on an ongoing basis. To the extent that there are material differences between these estimates and actual results, our
future financial statement presentation, financial condition, results of operations and cash flows will be affected. We believe that the following
critical accounting policies involve a greater degree of judgment and complexity than our other accounting policies. Accordingly, these are the
policies we believe are the most critical to understanding and evaluating our consolidated financial condition and results of operations.
Revenue Recognition
Automotive Sales
We recognize automotive sales revenue from sales of Model S and the Tesla Roadster, including vehicle options, accessories and
destination charges, vehicle service and sales of regulatory credits, such as zero emission vehicle(ZEV) and greenhouse gas emission (GHG)
credits. We also recognize automotive sales revenue from the sales of electric vehicle powertrain components and systems, such as battery packs
and drive units, to other manufacturers. We recognize revenue when (i) persuasive evidence of an arrangement exists; (ii) delivery has occurred
and there are no uncertainties regarding customer acceptance; (iii) fees are fixed or determinable; and (iv) collection is reasonably assured.
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Automotive sales consist primarily of revenue earned from the sale of vehicles. Sales or other amounts collected in advance of meeting all
of the revenue recognition criteria are not recognized in the consolidated statements of operations and are instead recorded as deferred revenue
on our consolidated balance sheets. Prior to February 2010, we did not provide direct financing for the purchase of the Tesla Roadster although a
third-party lender has provided financing arrangements to our customers in the United States. Under these arrangements we have been paid in
full by the customer at the time of purchase. Starting in February 2010, we began offering a Tesla Roadster leasing program to qualified
customers in the United States.
Automotive sales also consist of revenue earned from the sales of vehicle options, accessories and destination charges. While these sales
may take place separately from a vehicle sale, they are often part of one vehicle sale agreement resulting in multiple element arrangements. To
determine the appropriate accounting for recognition of our revenue, we consider whether the deliverables specified in the multiple element
arrangement should be treated as separate units of accounting, and, if so, how the price should be allocated among the elements, when to
recognize revenue for each element, and the period over which revenue should be recognized. We also evaluate whether a delivered item has
value on a stand-alone basis prior to delivery of the remaining items by determining whether we have made separate sales of such items or
whether the undelivered items are essential to the functionality of the delivered items. Further, we assess whether we know the fair value of the
undelivered items, determined by reference to stand-alone sales of such items.
To date, we have been able to establish the fair value for each of the deliverables within these multiple element arrangements because we
sell each of the vehicles, vehicle accessories and options separately, outside of any multiple element arrangements. As each of these items has
stand alone value to the customer, revenue from sales of vehicle accessories and options are recognized when those specific items are delivered
to the customer. Increased complexity to our sales agreements or changes in our judgments and estimates regarding application of these revenue
recognition guidelines could result in a change in the timing or amount of revenue recognized in future periods.
For multiple deliverable revenue arrangements, we allocate revenue to each element based on a selling price hierarchy. The selling price
for a deliverable is based on its vendor specific objective evidence (VSOE) if available, third party evidence (TPE) if VSOE is not available, or
estimated selling price if neither VSOE nor TPE is available. To date, we have been able to establish the fair value for each of the deliverables
within the multiple element arrangements because we sell each of the vehicles, vehicles accessories and options separately, outside of any
multiple element arrangements. Therefore, there were no material differences between total revenue reported and pro forma total revenues that
would have been reported during the year ended December 31, 2011, if the transactions entered into or materially modified after January 1, 2011
were subject to previous accounting guidance.
Regulatory Credit Sales
California and certain other states have laws in place requiring vehicle manufacturers to ensure that a portion of the vehicles delivered for
sale in that state during each model year are zero emission vehicles. These laws and regulations provide that a manufacturer of zero emission
vehicles may earn regulatory credits, and may sell excess credits to other manufacturers who apply such credits to comply with these regulatory
requirements. Similar regulations exist at the federal level which require compliance related to greenhouse gas (GHG) emissions and also allow
for the sale of excess credits by one manufacturer to other manufacturers. As a manufacturer solely of zero emission vehicles, we have earned
regulatory credits, such as ZEV and GHG credits on vehicles, and we expect to continue to earn these credits in the future. Since our commercial
vehicles are electric, we do not receive any compliance benefit from the generation of these credits, and accordingly look to sell them to other
vehicle manufacturers. In order to facilitate the sale of these credits, we enter into contractual agreements with third parties requiring them to
purchase our regulatory credits at pre-determined prices. We recognize revenue on the sale of these credits at the time legal title to the credits are
transferred to the purchasing party by the governmental agency issuing these credits.
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Development Services
Revenue from development services arrangements consist of revenue earned from the development of electric vehicle powertrain
components and systems for other automobile manufacturers, including the design and development of battery packs, drive units and sample
vehicles to meet a customer’s specifications. Revenue is recognized as a development arrangement is finalized, the performance requirements of
each development arrangement are met and collection is reasonably assured. Where development arrangements include substantive at-risk
milestones, revenue is recognized based upon the achievement of the contractually-defined milestones. Amounts collected in advance of meeting
all of the revenue recognition criteria are not recognized in the consolidated statement of operations and are instead recorded as deferred revenue
on the consolidated balance sheet. Increased complexity to our development agreements or changes in our judgments and estimates regarding
application of these revenue recognition guidelines could result in a change in the timing or amount of revenue recognized in future periods.
Costs of development services are expensed as incurred. Costs of development services incurred in periods prior to the finalization of an
agreement are recorded as research and development expenses; once an agreement is finalized, these costs are recorded in cost of development
services.
Marketable Securities
Marketable securities consist of commercial paper and corporate debt and are designated as available-for-sale and reported at estimated fair
value, with unrealized gains and losses recorded in accumulated other comprehensive loss which is included within stockholders’ equity.
Realized gains and losses on the sale of available-for-sale marketable securities are recorded in other expense, net. The cost of available-for-sale
marketable securities sold is based on the specific identification method. Interest, dividends, amortization and accretion of purchase premiums
and discounts on our marketable securities are included in other expense, net. Available-for-sale marketable securities with maturities greater
than three months at the date of purchase and remaining maturities of one year or less are classified as short-term marketable securities. Where
temporary declines in fair value exist, we have the ability and the intent to hold these securities for a period of time sufficient to allow for any
anticipated recovery in fair value.
We regularly review all of our marketable securities for other-than-temporary declines in fair value. The review includes but is not limited
to (i) the consideration of the cause of the impairment, (ii) the creditworthiness of the security issuers, (iii) the length of time a security is in an
unrealized loss position, and (iv) our ability to hold the security for a period of time sufficient to allow for any anticipated recovery in fair value.
Inventory Valuation
We value our inventories at the lower of cost or market. Cost is computed using standard cost, which approximates actual cost on a first-in,
first-out basis. We record inventory write-downs for estimated obsolescence or unmarketable inventories based upon assumptions about future
demand forecasts. If our inventory on hand is in excess of our future demand forecast, the excess amounts are written off.
We also review inventory to determine whether its carrying value exceeds the net amount realizable upon the ultimate sale of the
inventory. This requires us to determine the estimated selling price of our vehicles less the estimated cost to convert inventory on hand into a
finished product.
Once inventory is written-down, a new, lower-cost basis for that inventory is established and subsequent changes in facts and
circumstances do not result in the restoration or increase in that newly established cost basis. During the years ended December 31, 2012, 2011
and 2010, we recorded write-downs of $5.0 million, $1.8 million and $1.0 million, in cost of automotive sales, respectively.
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The inventory amounts are based on our current estimates of demand, selling prices and production costs. Should our estimates of future
selling prices or production costs change, material changes to these reserves may be required. Further, a small change in our estimates may result
in a material charge to our reported financial results.
Warranties
We accrue warranty reserves at the time a vehicle or powertrain component has associated revenue recognized. Warranty reserves include
management’s best estimate of the projected costs to repair or to replace any items under warranty, based on actual warranty experience as it
becomes available and other known factors that may impact our evaluation of historical data. We review our reserves at least quarterly to ensure
that our accruals are adequate in meeting expected future warranty obligations, and we will adjust our estimates as needed. Initial warranty data
can be limited early in the launch of a new vehicle or powertrain component and accordingly, the adjustments that we record may be material.
As of December 31, 2012, 2011 and 2010, we had $13.0 million, $6.3 million and $5.4 million in warranty reserves, respectively. Adjustments
to warranty reserves are recorded in cost of automotive sales.
It is likely that as we sell additional vehicles and powertrain components and as we repair or replace items under warranty, we will acquire
additional information on the projected costs to service work under warranty and may need to make additional adjustments. Further, a small
change in our warranty estimates may result in a material charge to our reported financial results.
Valuation of Stock-Based Awards, Common Stock and Warrants
Stock-Based Compensation
We use the fair value method of accounting for our stock options granted to employees and Employee Stock Purchase Plan (ESPP) which
require us to measure the cost of employee services received in exchange for the stock-based awards, based on the grant date fair value of the
awards. The fair value of the awards is estimated using the Black-Scholes option-pricing model. The resulting cost is recognized over the period
during which an employee is required to provide service in exchange for the awards, usually the vesting period which is generally four years for
stock options and six months for the ESPP. Stock-based compensation expense is recognized on a straight-line basis, net of forfeitures.
The fair value of each stock-based award was estimated on the grant date for the periods below using the Black-Scholes option-pricing
model.
2012
Risk-free interest rate:
Stock options
ESPP
Expected term (in years):
Stock options
ESPP
Expected volatility:
Stock options
ESPP
Dividend yield:
Stock options
ESPP
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Year Ended December 31,
2011
2010
1.0%
2.0%
0.2%
0.2%
5.9
6.0
0.5
0.5
63%
70%
51%
59%
0.0%
0.0%
0.0%
0.0%
2.0%
—
5.3
—
71%
—
0.0%
—
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If in the future we determine that another method for calculating the fair value of our stock-based awards is more reasonable, or if another
method for calculating the above input assumptions is prescribed by authoritative guidance, the fair value calculated for our stock-based awards
could change significantly.
The Black-Scholes option-pricing model requires inputs such as the risk-free interest rate, expected term and expected volatility. Further,
the forfeiture rate also affects the amount of aggregate compensation. These inputs are subjective and generally require significant judgment.
The risk-free interest rate that we use is based on the United States Treasury yield in effect at the time of grant for zero coupon United
States Treasury notes with maturities approximating each grant’s expected life. Given our limited history with employee grants, we use the
“simplified” method in estimating the expected term for our employee grants. The “simplified” method, as permitted by the SEC, is calculated as
the average of the time-to-vesting and the contractual life of the options.
Our expected volatility is derived from our implied volatility and the historical volatilities of several unrelated public companies within
industries related to our business, including the automotive OEM, automotive retail, automotive parts and battery technology industries, because
we have limited trading history on our common stock. When making the selections of our peer companies within industries related to our
business to be used in the volatility calculation, we also considered the stage of development, size and financial leverage of potential comparable
companies. Our historical volatility and implied volatility are weighted based on certain qualitative factors and combined to produce a single
volatility factor.
We estimate our forfeiture rate based on an analysis of our actual forfeitures and will continue to evaluate the appropriateness of the
forfeiture rate based on actual forfeiture experience, analysis of employee turnover behavior and other factors. Quarterly changes in the
estimated forfeiture rate can have a significant effect on reported stock-based compensation expense, as the cumulative effect of adjusting the
rate for all expense amortization is recognized in the period the forfeiture estimate is changed. If a revised forfeiture rate is higher than the
previously estimated forfeiture rate, an adjustment is made that will result in a decrease to the stock-based compensation expense recognized in
the consolidated financial statements. If a revised forfeiture rate is lower than the previously estimated forfeiture rate, an adjustment is made that
will result in an increase to the stock-based compensation expense recognized in the consolidated financial statements.
As we accumulate additional employee stock-based awards data over time and as we incorporate market data related to our common stock,
we may calculate significantly different volatilities, expected lives and forfeiture rates, which could materially impact the valuation of our stockbased awards and the stock-based compensation expense that we will recognize in future periods. Stock-based compensation expense is recorded
in our cost of revenues, research and development expenses, and selling, general and administrative expenses.
In August 2012, to create incentives for continued long term success beyond the Model S program and to closely align executive pay with
increases in stockholder value, our Board of Directors granted 5,274,901 stock options to our CEO (CEO Grant). The CEO Grant consists of ten
vesting tranches with a vesting schedule based entirely on the attainment of both performance conditions and market conditions, assuming
continued employment and service to us through each vesting date.
Each of the following ten vesting tranches requires a combination of one of the performance achievements outlined below and an
incremental increase in our market capitalization of $4.0 billion, as compared to the initial market capitalization of $3.2 billion.
•
Successful completion of the Model X Engineering Prototype (Alpha);
•
Successful completion of the Model X Vehicle Prototype (Beta);
•
Completion of the first Model X Production Vehicle;
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•
Successful completion of the Gen III Engineering Prototype (Alpha);
•
Successful completion of the Gen III Vehicle Prototype (Beta);
•
Completion of the first Gen III Production Vehicle;
•
Gross margin of 30% or more for four consecutive quarters;
•
Aggregate vehicle production of 100,000 vehicles;
•
Aggregate vehicle production of 200,000 vehicles; and
•
Aggregate vehicle production of 300,000 vehicles.
The term of the CEO Grant will be ten years, so that if any vesting tranches remain unvested after expiration of the CEO Grant, they will
be forfeited. In addition, our CEO will forfeit any unvested options if he is terminated as CEO of the Company, whether for cause or otherwise.
Stock-based compensation expense associated with the CEO Grant is recognized for each performance condition over the vesting period
beginning at the point in time that the relevant performance condition is considered probable of being met, regardless as to whether the related
market condition is ever met (though meeting the market condition would also be required in order for the related options to ultimately vest).
We measured the fair value of the CEO Grant using a Monte Carlo simulation approach with the following assumptions: risk-free interest
rate of 1.65%, expected term of ten years, expected volatility of 55% and dividend yield of 0%.
Unadjusted Error in 2009
In June 2010, we identified an error related to the understatement in stock-based compensation expense subsequent to the issuance of the
consolidated financial statements for the year ended December 31, 2009.
In the fourth quarter of 2009, we granted certain stock options for which a portion of the grant was immediately vested. We erroneously
accounted for the expense on a straight-line basis over the term of the award, while expense recognition should always be at least commensurate
with the number of awards vesting during the period. As a result, selling, general and administrative expenses and net loss for the year ended
December 31, 2009 were understated by $2.7 million. The error did not have an effect on the valuation of the stock options. As stock-based
compensation expense is a non-cash item, there was no impact on net cash used in operating activities for the year ended December 31, 2009.
To correct this error, we recorded additional stock-based compensation of $2.4 million during the three months ended June 30, 2010. We
considered the impact of the error on reported operating expenses and trends in operating results and determined that the impact of the error was
not material to previously reported financial information as well as those related to the three months ended June 30, 2010.
Common Stock Valuation
Since the completion of our IPO on July 2, 2010, for purposes of option pricing and valuations, our common stock has been valued by
reference to its publicly traded price. Prior to the IPO, we historically granted stock options with exercise prices equal to the fair value of our
common stock as determined at the date of grant by our Board of Directors. Because there was no public market for our common stock, our
Board of Directors determined the fair value of our common stock by considering a number of objective and subjective factors, including the
following:
•
our sales of convertible preferred stock to unrelated third parties;
•
our operating and financial performance;
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•
the lack of liquidity of our capital stock;
•
trends in our industry;
•
arm’s length, third-party sales of our stock; and
•
contemporaneous valuations performed by an unrelated third-party.
There is inherent uncertainty in these estimates and if we had made different assumptions than those used, the amount of our stock-based
compensation expense, net loss and net loss per share amounts could have been significantly different. The following table summarizes, by grant
date, the number of stock options granted during the six months prior to the completion of our IPO on July 2, 2010, and the associated per share
exercise price, which equaled the fair value of our common stock for each of these grants.
Exercise
Price and
Fair Value
per Share of
Grant Date
Number of
Options
Granted
March 3, 2010
April 28, 2010
June 12, 2010
402,660
256,320
1,135,710
Common
Stock
9.96
13.23
14.17
Included in the December 4, 2009 awards, were 6,711,972 stock options granted to our Chief Executive Officer (CEO) comprised of two
grants. In recognition of his and our company’s achievements and to create incentives for future success, the Board of Directors approved an
option grant representing 4% of our fully-diluted share base prior to such grant as of December 4, 2009, or 3,355,986 stock options, with 1/4th of
the shares vesting immediately, and 1/36th of the remaining shares scheduled to vest each month over three years, assuming continued
employment through each vesting date. In addition, to create incentives for the attainment of clear performance objectives around a key element
of our current business plan—the successful launch and commercialization of Model S—the Board of Directors approved additional options
totaling an additional 4% of our fully-diluted shares prior to such grant as of December 4, 2009, with a vesting schedule based entirely on the
attainment of performance objectives as follows, assuming Mr. Musk’s continued service to us through each vesting date:
•
1/4th of the shares subject to the option are scheduled to vest upon the successful completion of Model S Engineering Prototype;
•
1/4th of the shares subject to the option are scheduled to vest upon the successful completion of Model S Validation Prototype;
•
1/4th of the shares subject to the option are scheduled to vest upon the completion of the first Model S Production Vehicle; and
•
1/4th of the shares subject to the option are scheduled to vest upon the completion of the 10,000th Model S Production Vehicle.
If Mr. Musk does not meet one or more of the above milestones prior to the fourth anniversary of the date of grant, he will forfeit his right
to the unvested portion of the grant.
Due to the significant number of stock options granted to our CEO, we valued these December 2009 grants by using the following grantspecific Black-Scholes assumptions: risk-free interest rate of 1.7%, expected term of 4.1 years, expected volatility of 70% and dividend yield of
0%.
Included in our June and September 2010 stock option grants were 666,300 and 20,000 stock options granted respectively, to various
members of our senior management with a vesting schedule based entirely on the attainment of the same performance objectives as those
outlined for Mr. Musk above.
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Warrants
We have accounted for our freestanding warrants to purchase shares of our convertible preferred stock as liabilities at fair value upon
issuance. We have recorded the warrants as a liability because the underlying shares of convertible preferred stock are contingently redeemable
and, therefore, may obligate us to transfer assets at some point in the future. The warrants are subject to re-measurement to fair value at each
balance sheet date and any change in fair value is recognized as a component of other expense, net, on the consolidated statements of operations.
We have issued a warrant to the DOE to purchase shares of our common stock at an exercise price of $7.54 per share and a warrant to
purchase up to 5,100 shares of our common stock at an exercise price of $8.94 per share. Beginning on December 15, 2018 and until
December 14, 2022, the shares subject to purchase under these warrants will become exercisable in quarterly amounts depending on the average
outstanding balance of the DOE Loan Facility during the prior quarter. The warrants may be exercised until December 15, 2023. If we prepay
the DOE Loan Facility in part or in full, the total amount of shares exercisable under the warrants will be reduced. Since the number of shares of
common stock ultimately issuable under the warrants will vary, these warrants will be carried at their estimated fair value with changes in their
fair value reflected in other expense, net, until their expiration or vesting.
Since the number of shares ultimately issuable under the DOE warrants will vary depending on the average outstanding balance of the loan
during the contractual vesting period, and decisions to prepay would be influenced by our future stock price as well as the interest rates on our
loans in relation to market interest rates, we measured the fair value of the DOE warrant using a Monte Carlo simulation approach. The Monte
Carlo approach simulates various scenarios and captures the optimal decisions to be made between prepaying the DOE loan and the cancellation
of the DOE warrant over the expected term of the DOE Loan Facility of 13 years. For the purposes of the simulation, the optimal decision
represents the scenario with the lowest economic cost to us. The total warrant value would then be calculated as the average warrant payoff
across all simulated paths discounted to our valuation date.
The significant assumptions that we use in the valuation of the DOE warrant include similar assumptions used in the valuation of otherwise
featureless stock warrants at various simulated stock prices, as well as the interest rate differential between the interest rates under our DOE
Loan Facility and market interest rates for companies comparable to us. The estimated value of our stock warrant requires us to use a BlackScholes option-pricing model, which incorporates several assumptions that are subject to significant management judgment as is the case for
stock-based compensation discussed above. The differential between the interest rates under our DOE Loan Facility and market interest rates is
derived from the credit spread data of several unrelated public companies within industries related to our business. As the average simulated
value of our stock warrant increases relative to the credit spread of our comparator companies, the fair value of our DOE warrant decreases since
the economic cost of prepaying our outstanding loans under the DOE Loan Facility and replacing the funds with market interest rate debt, would
be lower than the economic cost associated with the dilution caused by the vesting of warrants. Similarly, as the credit spread of our comparator
companies increases relative to the average simulated value of our stock warrant, the fair value of our DOE warrant increases since the economic
cost associated with prepaying our outstanding loans under the DOE Loan Facility and replacing the funds with market interest rate debt is
higher than the economic cost associated with the dilution caused by the vesting of warrants, and therefore, we would not prepay our outstanding
DOE debt and we would allow a higher number of warrants to vest. Prior to completion of our IPO, the fair value of the DOE warrant was
included within the convertible preferred stock warrant liability on the consolidated balance sheet. Upon the completion of our IPO on July 2,
2010, this warrant was reclassified on our consolidated balance sheet from convertible preferred stock warrant liability to common stock warrant
liability. The DOE warrant will continue to be recorded at its estimated fair value with changes in the fair value reflected in other expense, net,
as the number of shares of common stock ultimately issuable under the warrant is variable until its expiration or vesting. The relative
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movements in our stock price as compared to the credit spread of our comparator companies will result in fair value changes being recorded in
other expense, net, in future periods which may be significant.
Excluding the warrant issued to the DOE in January 2010, we estimated the fair value of other pre-IPO convertible preferred stock
warrants using a Black-Scholes option-pricing model which used several assumptions that were subject to significant management judgment as
is the case for stock-based compensation as discussed above. Upon the completion of our IPO in July 2010, these convertible preferred stock
warrants outstanding as of June 30, 2010, were re-valued with changes in value being charged to income, and the warrants were net exercised
and the related convertible preferred stock warrant liability was settled and recorded in shareholders’ equity.
Income Taxes
We record our provision for income taxes in our consolidated statements of operations by estimating our taxes in each of the jurisdictions
in which we operate. We estimate our actual current tax exposure together with assessing temporary differences arising from differing treatment
of items recognized for financial reporting versus tax return purposes. In general, deferred tax assets represent future tax benefits to be received
when certain expenses previously recognized in our consolidated statements of operations become deductible expenses under applicable income
tax laws, or loss or credit carryforwards are utilized. Valuation allowances are recorded when necessary to reduce deferred tax assets to the
amount expected to be realized.
Significant management judgment is required in determining our provision for income taxes, our deferred tax assets and liabilities and any
valuation allowance recorded against our net deferred tax assets. We make these estimates and judgments about our future taxable income that
are based on assumptions that are consistent with our future plans. As of December 31, 2012, we had recorded a full valuation allowance on our
net deferred tax assets because we expect that it is more likely than not that our deferred tax assets will not be realized in the foreseeable future.
Should the actual amounts differ from our estimates, the amount of our valuation allowance could be materially impacted.
Furthermore, significant judgment is required in evaluating our tax positions. In the ordinary course of business, there are many
transactions and calculations for which the ultimate tax settlement is uncertain. As a result, we recognize the effect of this uncertainty on our tax
attributes based on our estimates of the eventual outcome. These effects are recognized when, despite our belief that our tax return positions are
supportable, we believe that it is more likely than not that those positions may not be fully sustained upon review by tax authorities. We are
required to file income tax returns in the United States and various foreign jurisdictions, which requires us to interpret the applicable tax laws
and regulations in effect in such jurisdictions. Such returns are subject to audit by the various federal, state and foreign taxing authorities, who
may disagree with respect to our tax positions. We believe that our accounting consideration is adequate for all open audit years based on our
assessment of many factors, including past experience and interpretations of tax law. We review and update our estimates in light of changing
facts and circumstances, such as the closing of a tax audit, the lapse of a statute of limitations or a material change in estimate. To the extent that
the final tax outcome of these matters differs from our expectations, such differences may impact income tax expense in the period in which such
determination is made. The eventual impact on our income tax expense depends in part if we still have a valuation allowance recorded against
our deferred tax assets in the period that such determination is made.
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Results of Operations
The following table sets forth our consolidated statements of operations data for the periods presented (in thousands, except per share
data):
Revenues
Automotive sales
Development services
Total revenues
Cost of revenues
Automotive sales
Development services
Total cost of revenues
Gross profit
Operating expenses
Research and development
Selling, general and administrative
Total operating expenses
Loss from operations
Interest income
Interest expense
Other expense, net
Loss before income taxes
Provision for income taxes
Net loss
2012
Year Ended December 31,
2011
2010
$ 385,699
27,557
413,256
$ 148,568
55,674
204,242
$ 97,078
19,666
116,744
371,658
11,531
383,189
30,067
115,482
27,165
142,647
61,595
79,982
6,031
86,013
30,731
273,978
150,372
424,350
(394,283)
288
(254)
(1,828)
(396,077)
136
$(396,213)
208,981
104,102
313,083
(251,488)
255
(43)
(2,646)
(253,922)
489
$(254,411)
92,996
84,573
177,569
(146,838)
258
(992)
(6,583)
(154,155)
173
$(154,328)
Revenues
Automotive Sales
Automotive sales, which include vehicle, options and related sales, and powertrain component and related sales, consisted of the following
for the periods presented (in thousands):
2012
Vehicle, options and related sales
Powertrain component and related sales
Total automotive sales
$354,344
31,355
$385,699
Year Ended December 31,
2011
$101,708
46,860
$148,568
2010
$75,459
21,619
$97,078
Automotive sales for the year ended December 31, 2012 were $385.7 million, an increase from $148.6 million for the year ended
December 31, 2011. Vehicle, options and related sales represent sales of Model S and the Tesla Roadster, including vehicle options, accessories
and destination charges, vehicle service and sales of zero emission vehicle and greenhouse gas emission regulatory credits to other automotive
manufacturers. Powertrain component and related sales represent the sales of electric vehicle powertrain components and systems, such as
battery packs and drive units, to other manufacturers.
Vehicle, options and related sales for the year ended December 31, 2012 were $354.3 million, an increase from $101.7 million for the year
ended December 31, 2011. The increase in vehicle, options and related sales
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was primarily attributable to the commencement of Model S customer deliveries in June 2012 and subsequent ramp as well as sales of regulatory
credits, partially offset by a decrease in the number of Tesla Roadsters sold as we completed production of the Tesla Roadster in January 2012
and have been selling our remaining inventory primarily in Europe and Asia.
Vehicle, options and related sales for the year ended December 31, 2012 included regulatory credit sales of $40.5 million compared to
regulatory credit sales of $2.7 million for the year ended December 31, 2011. The significant increase in production and delivery of vehicles in
the United States allowed us to sell more regulatory credits to other automotive manufacturers.
Powertrain component and related sales for the year ended December 31, 2012 were $31.4 million, a decrease from $46.9 million for the
year ended December 31, 2011. The decrease in powertrain component and related sales was primarily due to fewer shipments of battery packs
and chargers to Daimler. Production for both the Daimler Smart fortwo and A-Class EV programs was substantially completed as of
December 31, 2011. During the three months ended March 31, 2012, we began supplying powertrain systems to Toyota under the RAV4 EV
supply and services agreement and recognized $29.1 million for the year ended December 31, 2012.
Automotive sales for the year ended December 31, 2011 were $148.6 million, an increase from $97.1 million for the year ended
December 31, 2010.
Vehicle, options and related sales for the year ended December 31, 2011 were $101.7 million, an increase from $75.5 million for the year
ended December 31, 2010. The increase in vehicle, options and related sales was primarily attributable to an increase in the number of Tesla
Roadsters that we sold, particularly in North America and Asia, coupled with slightly higher average selling prices. Under our supply agreement
with Lotus, we have built 2,500 Roadster gliders.
In February 2010, we began offering a leasing program to qualified customers in the United States for the Tesla Roadster. Through our
wholly owned subsidiary, qualifying customers are permitted to lease the Tesla Roadster for 36 months, after which time they have the option of
either returning the vehicle to us or purchasing it for a pre-determined residual value. We account for these leasing transactions as operating
leases and accordingly, we recognize leasing revenues on a straight-line basis over the term of the individual leases. Lease revenues are recorded
in vehicle, options and related sales within automotive sales revenue and for the years ended December 31, 2011 and 2010, we recognized $3.0
million and $0.8 million, respectively. During the years ended December 31, 2011 and 2010, approximately 6% and 14% of the vehicles
delivered during those years were under operating leases.
Powertrain component and related sales for the year ended December 31, 2011 were $46.9 million, an increase from $21.6 million for the
year ended December 31, 2010. The increase in powertrain component and related sales was primarily due to significant shipments of battery
packs and chargers to Daimler. We began delivering battery packs and chargers for the Daimler Smart fortwo EV program at the end of 2009,
and for the Daimler A-Class EV program late in the fourth quarter of 2010. Production for both the Smart fortwo and A-Class EV programs was
completed as of December 31, 2011.
Development Services
Development services represent arrangements where we develop electric vehicle powertrain components and systems for other automobile
manufacturers, including the design and development of battery packs, drive units and chargers to meet customer’s specifications. Development
services revenue for the year ended December 31, 2012 was $27.6 million, a decrease from $55.7 million for the year ended December 31, 2011.
During the fourth quarter of 2011, Daimler engaged us to assist with the development of a full electric powertrain for a Daimler MercedesBenz B-Class EV vehicle. In 2012, we received two purchase orders from Daimler to begin
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development work and also entered into a separate development agreement under which we would complete various milestones and deliver
prototype samples. During the year ended December 31, 2012, we recognized a total $15.9 million in development services revenue related to
the Mercedes-Benz B-Class EV program.
In July 2010, we entered into an agreement with Toyota to initiate development of an electric powertrain for the Toyota RAV4. Under this
Phase 0 development agreement, prototypes were made by us by combining the Toyota RAV4 model with a Tesla electric powertrain. In
October 2010, we also entered into a Phase 1 contract services agreement with Toyota for the development of a validated powertrain system,
including a battery, power electronics module, motor, gearbox and associated software, which would be integrated into an electric vehicle
version of the Toyota RAV4.
During the year ended December 31, 2011, we completed various milestones and delivered several samples under the Phase 1 agreement
and we also delivered all development services under the Phase 0 agreement. Development services revenue under these arrangements with
Toyota for the year ended December 31, 2011 was $55.0 million.
During the three months ended March 31, 2012, we completed our remaining milestones and delivered samples under the Phase 1
agreement and recognized $10.7 million in development services revenue.
Development services revenue for the year ended December 31, 2011 was $55.7 million, an increase from $19.7 million for the year ended
December 31, 2010.
During the first quarter of 2010, Daimler engaged us to assist with the development and production of a battery pack and charger for a pilot
fleet of its A-Class electric vehicles to be introduced in Europe during 2011. We began providing development services for this program during
the first quarter of 2010 and had received an aggregate of $5.5 million in payments; however, as we had not executed a final agreement related to
this program as of March 31, 2010, we deferred the $5.5 million of payments that had been received from Daimler to that point. In May 2010,
we executed a final agreement under which Daimler would make additional payments to us for the successful completion of certain development
milestones and the delivery of prototype samples. As of December 31, 2010, we had completed our deliverables under this agreement and for the
year ended December 31, 2010, we recognized $14.4 million in development services revenue.
In July 2010, we entered into an agreement with Toyota to initiate development of an electric powertrain for the Toyota RAV4 EV. Under
this Phase 0 development agreement, prototypes would be made by us by combining the Toyota RAV4 model with a Tesla electric powertrain.
Through June 30, 2011, we had completed all prototype vehicles under the Phase 0 agreement and for the years ended December 31, 2011 and
2010, we recognized $7.6 million and $1.3 million in development service revenue, respectively.
In October 2010, we also entered into a Phase 1 contract services agreement with Toyota for the development of a validated powertrain
system, including a battery pack, power electronics module, motor, gearbox and associated software, which will be integrated into an electric
vehicle version of the Toyota RAV4. Pursuant to this agreement, Toyota would pay us up to $60.0 million for the anticipated development
services to be provided by us over the expected term of our performance, including a $5.0 million upfront payment that we received upon the
execution of the agreement. During the year ended December 31, 2011 and 2010, we completed various milestones and delivered samples under
the Phase 1 agreement. Including the amortization of our upfront payment, for the years ended December 31, 2011 and 2010, we recognized
$47.4 million and $3.3 million in development services revenue, respectively, under the Phase 1 agreement.
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Cost of Revenues and Gross Profit
Cost of revenues includes cost of automotive sales and costs related to our development services.
Cost of automotive sales for the year ended December 31, 2012 was $371.7 million, an increase from $115.5 million for the year ended
December 31, 2011. Cost of automotive sales includes direct parts, material and labor costs, manufacturing overhead, including amortized
tooling costs, royalty fees, shipping and logistic costs and reserves for estimated warranty expenses. Cost of automotive sales also includes
adjustments to warranty expense and charges to write down the carrying value of our inventory when it exceeds its estimated net realizable value
and to provide for obsolete and on-hand inventory in excess of forecasted demand. We also recognize charges through cost of automotive sales
to provide for non-cancellable purchase orders for inventory deemed to be obsolete or in excess of net realizable value. The increase in cost of
automotive sales was driven primarily by the commencement of Model S deliveries in June 2012 as well as electric powertrain component and
systems sales to Toyota as we began to deliver under the Toyota RAV4 EV supply and services agreement, partially offset by a decrease in the
number of Roadster deliveries and battery packs and chargers delivered to Daimler.
Cost of development services for the year ended December 31, 2012 was $11.5 million, a decrease from $27.2 million for the year ended
December 31, 2011. Cost of development services includes engineering support and testing, direct parts, material and labor costs, manufacturing
overhead, including amortized tooling costs, shipping and logistic costs and other development expenses that we incur in the performance of our
services under development agreements. The decrease in cost of development services was driven primarily by our activities for the Toyota
RAV4 EV program which we substantially completed during the three months ended March 31, 2012, partially offset by costs associated with
development activities related to the Mercedes-Benz B-Class EV program which we commenced in 2012.
Gross profit for the year ended December 31, 2012 was $30.1 million, a decrease from $61.6 million for the year ended December 31,
2011. The decrease for the year ended December 31, 2012, compared to the year ended December 31, 2011, was driven primarily by the
commencement of Model S deliveries and the associated early stage cost inefficiencies including lower fixed cost absorption, manufacturing
inefficiencies related to production ramp, higher initial parts costs and higher logistics costs as our supply chain took time to mature as well as
lower sales of the Tesla Roadster, partially offset by the sales of regulatory credits which carry no associated cost of revenues.
Cost of revenues for the year ended December 31, 2011 was $142.6 million, an increase from $86.0 million for the year ended
December 31, 2010. The increase in cost of automotive sales for the year ended December 31, 2011 was driven primarily by an increase in the
number of vehicles that we sold and the increased shipments of battery packs and chargers to Daimler. We began delivering battery packs and
chargers for the Daimler Smart fortwo EV program at the end of 2009 and for the Daimler A-Class EV program at the end of 2010. Cost of
development services includes engineering support and testing, direct parts, material and labor costs, manufacturing overhead, including
amortized tooling costs, shipping and logistic costs and other development expenses that we incur in the performance of our services under
development agreements. The increase in cost of development services was driven primarily by our activities for the Toyota RAV4 EV program
which began in the second half of 2010.
Gross profit for the year ended December 31, 2011 was $61.6 million, an increase from $30.7 million for the year ended December 31,
2010. The increase was driven primarily by higher sales of the Tesla Roadster coupled with higher average selling prices and ongoing cost
improvement program on the Roadster, increased shipments of battery packs and chargers to Daimler, as well as gross profit from our
development services activities which we expanded in the latter half of 2010 with the Toyota RAV4 EV program.
Research and Development Expenses
Research and development expenses consist primarily of personnel costs for our teams in engineering and research, supply chain, quality,
manufacturing engineering and manufacturing test organizations, prototyping
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expense, contract and professional services and amortized equipment expense. Overhead costs related to the Tesla Factory prior to the start of
production of Model S are also included in research and development expenses. Also included in research and development expenses are
development services costs that we incur, if any, prior to the finalization of agreements with our development services customers as reaching a
final agreement and revenue recognition is not assured. Development services costs incurred after the finalization of an agreement are recorded
in cost of revenues.
Research and development expenses for the year ended December 31, 2012 were $274.0 million, an increase from $209.0 million for the
year ended December 31, 2011. The $65.0 million increase in research and development expenses during the year ended December 31, 2012
consisted primarily of a $54.3 million increase in employee compensation expenses from higher headcount, a $23.1 million increase in office,
information technology and facilities-related costs to support the growth of our business, a $15.1 million increase in stock-based compensation
expense related to a larger number of outstanding equity awards due to additional headcount and generally an increasing common stock
valuation applied to new grants, and a $3.3 million increase in shipping charges for prototype materials incurred in the first half of 2012. The
increase was partially offset by a $30.9 million decrease in materials and prototyping expenses primarily to support our Model S beta and release
candidate builds as well as powertrain development activities.
Research and development expenses for the year ended December 31, 2011 were $209.0 million, an increase from $93.0 million for the
year ended December 31, 2010. The $116.0 million increase in research and development expenses during the year ended December 31, 2011
consisted primarily of a $38.1 million increase in materials and prototyping expenses primarily to support our Model S alpha and beta builds,
overhead costs related to the Tesla Factory, powertrain development activities, a $30.9 million increase in costs related to Model S and Model X
engineering, design and testing activities incurred by our suppliers, a $30.4 million increase in employee compensation expenses from higher
headcount, a $9.7 million increase in stock-based compensation expense related to a larger number of outstanding equity awards and generally
an increasing common stock valuation applied to new grants, and a $7.0 million increase in office, information technology and facilities-related
costs to support the growth of our business.
Selling, General and Administrative Expenses
Selling, general and administrative expenses consist primarily of personnel and facilities costs related to our Tesla stores, marketing, sales,
executive, finance, human resources, information technology and legal organizations, as well as litigation settlements and fees for professional
and contract services.
Selling, general and administrative expenses for the year ended December 31, 2012 were $150.4 million, an increase from $104.1 million
for the year ended December 31, 2011. The $46.3 million increase in our selling, general and administrative expenses during the year ended
December 31, 2012 consisted primarily of a $24.3 million increase in employee compensation expenses related to higher sales and marketing
headcount to support sales activities worldwide and higher general and administrative headcount to support the expansion of the business, a $9.4
million increase in office, information technology and facilities-related costs to support an expanded store and service network and the growth of
our business in general, a $6.0 million increase in stock-based compensation expense related to a larger number of outstanding equity awards due
to additional headcount and generally an increasing common stock valuation applied to new grants, and a $6.0 million increase in professional
and outside services costs.
Selling, general and administrative expenses for the year ended December 31, 2011 were $104.1 million, an increase from $84.6 million
for the year ended December 31, 2010. The $19.5 million increase in our selling, general and administrative expenses during the year ended
December 31, 2011 consisted primarily of a $12.3 million increase in employee compensation expenses related to higher sales and marketing
headcount to support sales activities worldwide and higher general and administrative headcount to support the expansion of the business, a
$4.1 million increase in office, information technology and facilities-related costs to support the
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growth of our business, a $2.4 million increase in professional and outside services costs, and a $1.7 million increase in costs principally related
to our Tesla store and gallery openings. The increase is also attributable to a $1.0 million increase in stock-based compensation expense related
to a larger number of outstanding equity awards and generally an increasing common stock valuation applied to new grants. The increase for the
year ended December 31, 2011 was partially offset by an additional stock-based compensation charge of $2.4 million recognized during the year
ended December 31, 2010, which reflected a correction of stock-based compensation expense that should have been recorded during the year
ended December 31, 2009.
Interest Expense
Interest expense is incurred primarily from our loans under the DOE Loan Facility to fund our Model S and powertrain activities, and as of
August 2012, we have fully drawn down on the DOE Loan Facility. Interest expense for the year ended December 31, 2012 and 2011 was $7.9
million and $5.1 million, respectively. We have historically capitalized this interest to construction in progress while the Tesla Factory and our
manufacturing assets for Model S and future vehicles were being constructed for their intended use. During the years ended December 31, 2012
and 2011, we capitalized $7.6 million and $5.1 million of interest expense to construction in progress, respectively.
Interest expense for the year ended December 31, 2010 was $1.0 million. As significant construction of the Tesla Factory and our Model S
manufacturing assets had not yet begun, less interest was capitalized to construction in progress in 2010.
Other Expense, Net
Other expense, net, consists primarily of the change in the fair value of our warrant liabilities and transaction gains and losses on our
foreign currency-denominated assets and liabilities. We expect our transaction gains and losses will vary depending upon movements in the
underlying exchange rates. The DOE common stock warrant liability is carried at its estimated fair value with changes in its fair value continuing
to be reflected in other expense, net, until its expiration or vesting.
Other expense, net, for the year ended December 31, 2012 was $1.8 million, a decrease in expense compared to other expense, net, of $2.6
million for the year ended December 31, 2011. The decrease in expense for the year ended December 31, 2012 was primarily due to a favorable
foreign currency exchange impact from our foreign currency-denominated liabilities, partially offset by the fair value change in our common
stock warrant liability during the year ended December 31, 2012 resulting from a higher stock price.
Other expense, net, for the year ended December 31, 2011 was $2.6 million, a decrease from other expense, net, of $6.6 million for the
year ended December 31, 2010. The decrease in expense for the year ended December 31, 2011 was primarily due to the elimination of warrant
liabilities, excluding the DOE warrant liability, upon the completion of our IPO in July 2010.
Provision for Income Taxes
Our provision for income taxes for the year ended December 31, 2012 was $0.1 million, a decrease from $0.5 million for the year ended
December 31, 2011. The decrease was due primarily to the decrease in taxable income in our international jurisdictions as we were concluding
sales of the Tesla Roadster.
Our provision for income taxes for the year ended December 31, 2011 was $0.5 million, an increase from $0.2 million for the year ended
December 31, 2010. The increase was due primarily to the increase in taxable income in our international jurisdictions.
Liquidity and Capital Resources
Since inception and through the year ended December 31, 2012, we had accumulated net operating losses of $1.07 billion and have used
$709.2 million of cash in operations. As of December 31, 2012, we had $221.0 million
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in principal sources of liquidity available from our cash and cash equivalents in the amount of $201.9 million which included investments in
money market funds, and cash of $14.9 million deposited in a dedicated DOE account in accordance with the requirements of our DOE Loan
Facility to pre-fund our quarterly DOE loan repayment of principal and interest that will come due on March 15, 2013.
Other sources of cash include cash from the sales of Model S, refundable reservation payments for Model S and Model X, sales of
regulatory credits, cash from the provision of development services and sales of powertrain components and systems.
In February 2013, we made a pre-funding payment of $14.6 million for principal and interest that will come due on June 15, 2013 into a
dedicated debt service reserve account in accordance with the pre-funding requirements under the DOE Loan Facility.
We expect that our current sources of liquidity, including cash, cash equivalents, cash held in our dedicated DOE account, together with
our current projections of cash flow from operating activities, will provide us adequate liquidity until we reach expected profitability in 2013,
based on our current plans. These capital sources will enable us to fund our ongoing operations, continue research and development projects,
including those for our planned Model X crossover, establish sales and service centers and to make the investments in tooling and manufacturing
capital required to introduce Model X.
As of August 31, 2012, we have fully drawn down the remaining funds available under the DOE Loan Facility. These funds have been
used to develop and produce Model S, grow our powertrain capabilities and develop the Tesla Factory. The development of future vehicles,
investments in new technologies, increased in-sourcing of manufacturing capabilities, investments to expand our powertrain activities or
investments to further expand our sales and service network, may require us to raise additional funds through the issuance of equity, equityrelated or debt securities or through obtaining credit. Also, should prevailing economic conditions and/or financial, business or other factors
adversely affect the estimates of our future cash requirements, we could be required to fund our cash requirements through additional or
alternative sources of financing. We cannot be certain that additional funds will be available to us on favorable terms when required, or at all.
DOE Loan Facility
On January 20, 2010, we entered into a loan facility with the Federal Financing Bank (FFB), and the DOE, pursuant to the ATVM
Incentive Program. We refer to the loan facility with the DOE, as amended, as the DOE Loan Facility. The DOE Loan Facility requires, among
other things, that we comply with certain financial covenants and fund a debt service account. The financial covenants include a minimum
current ratio, which is a ratio of our current assets to our current liabilities (taking into account certain categorical exclusions); a minimum fixed
charge coverage ratio, which is a ratio of consolidated adjusted EBITDA to consolidated fixed charges; and a maximum ratio of total liabilities
to stockholder equity. The DOE Loan Facility was amended in June 2011 to expand our cash investment options, in February 2012 to modify the
timing of certain future financial covenants and funding of the debt service reserve account, in June and December 2012 to allow us to effect
certain initiatives in our business plan. In September 2012, we entered into an amendment with the DOE that: (i) removed our obligation to
comply with the current ratio financial covenant for the third quarter of 2012; (ii) amended our funding requirements for the dedicated debt
service reserve account to (a) postpone until February 15, 2013, $14.6 million of the $28.8 million pre-funding payment originally due on
October 15, 2012; and (b) make additional pre-funding payments, beginning June 15, 2013, of between $14.2 million to $14.5 million each
quarter to pre-fund the quarterly principal and interest payments due from September 15, 2013 through December 15, 2014; and (iii) added a
covenant requiring us to work in good faith with the DOE to develop an early repayment plan for our outstanding DOE Loan Facility on terms
satisfactory to the DOE. We entered into another amendment with the DOE in March 2013 that, among other things: (i) modified certain future
financial covenants; (ii) accelerated the maturity date of the DOE Loan Facility to December 15, 2017; (iii) created an obligation to repay
approximately 1.0% of the outstanding principal under the DOE Loan Facility on or before June 15, 2013; and (iv) created additional contingent
obligations based on excess cash flow that may result in accelerated repayment of the DOE Loan Facility starting in 2015. The original
amortization schedule for the DOE Loan Facility is not affected by this recent amendment, and so the debt service payments remain the same
until the new maturity date when all outstanding loans under the DOE Loan Facility are to be repaid.
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As of August 31, 2012, we have fully drawn down the aforementioned facilities.
Our DOE Loan Facility draw-downs were as follows (in thousands):
Loan Facility Available
for Future Drawdowns
Beginning balance, January 20, 2010
Draw-downs received during the three months ended March 31, 2010
Draw-downs received during the three months ended June 30, 2010
Draw-downs received during the three months ended September 30, 2010
Draw-downs received during the three months ended December 31, 2010
Remaining balance, December 31, 2010
Draw-downs received during the three months ended March 31, 2011
Draw-downs received during the three months ended June 30, 2011
Draw-downs received during the three months ended September 30, 2011
Draw-downs received during the three months ended December 31, 2011
Remaining balance, December 31, 2011
Draw-downs received during the three months ended March 31, 2012
Draw-downs received during the three months ended June 30, 2012
Draw-downs received during the three months ended September 30, 2012
Remaining balance, December 31, 2012
$
$
465,048
(29,920)
(15,499)
(11,138)
(15,271)
393,220
(30,656)
(31,693)
(90,822)
(51,252)
188,797
(84,267)
(71,274)
(33,256)
—
Interest rates
2.9% -3.4%
2.5% -3.4%
1.7% -2.6%
1.7% -2.8%
2.1% -3.0%
1.8% -2.7%
1.0% -1.4%
1.0% -1.5%
0.9% -1.6%
1.0% -1.3%
1.0% -1.2%
In December 2012, we paid $14.6 million including the first quarterly principal payment of $12.7 million in accordance with the
repayment schedule under the DOE Loan Facility.
In February 2013, we pre-funded $14.6 million for all principal and interest that will come due on June 15, 2013 into a dedicated debt
service reserve account in accordance with the pre-funding requirement under the DOE Loan Facility.
For more information on the DOE Loan Facility, see Note 8 to our Consolidated Financial Statements included in this Annual Report on
Form 10-K under Item 8. Financial Statements and Supplementary Data.
Follow-on Offering and Concurrent Private Placements
In June 2011, we completed a follow-on offering of common stock in which we sold a total of 6,095,000 shares of our common stock and
received cash proceeds of $172.7 million from this transaction, net of underwriting discounts.
Concurrent with our June 2011 follow-on offering, we also sold 1,416,000 shares of our common stock to Elon Musk, our Chief Executive
Officer (CEO) and cofounder, and 637,475 shares of our common stock to Blackstar InvestCo LLC, an affiliate of Daimler, and received total
cash proceeds of $59.1 million in the private placements. No underwriting discounts or commissions were paid in connection with these private
placements.
In October 2012, we completed a follow-on offering of common stock in which we sold a total of 7,964,601shares of our common stock
and received cash proceeds of $222.1 million from this transaction, net of underwriting discounts (which includes 35,398 shares or $1.0 million
sold to Elon Musk, our CEO and cofounder).
Leasing Activities
In February 2010, we began offering a leasing program to qualified customers in the United States for the Tesla Roadster. Through our
wholly owned subsidiary, qualifying customers are permitted to lease the Tesla
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Roadster for 36 months, after which time they have the option of either returning the vehicle to us or purchasing it for a pre-determined residual
value.
When compared to our sales of vehicles, our leasing activities will spread the cash inflows that we would otherwise receive upon the sale
of a vehicle, over the lease term and final disposition of the leased vehicle. As such, our cash and working capital requirements will be directly
impacted and if leasing volume increases significantly, the impact may be material. However, after taking into consideration our current and
planned sources of operating cash, our ability to monitor and prospectively adjust our leasing activity, as well as our intent to collect
nonrefundable deposits for leased vehicles that are manufactured to specification, we do not believe that our leasing operations materially
adversely impact our ability to meet our commitments and obligations as they become due. As we will also be exposed to credit risk related to
the timely collection of lease payments from our customers, we intend to utilize our credit approval and ongoing review processes in order to
minimize any credit losses that could occur and which could adversely affect our financial condition and results of operations. We require
deposits from customers electing a lease option for vehicles built to a customer’s specifications on the same timeframe and under the same
circumstances as from customers purchasing our vehicles outright. During the years ended December 31, 2011 and 2010, approximately 6% and
14% of the vehicles delivered during these periods were under operating leases, respectively. As we had substantially completed sales of the
Tesla Roadster in North America in early 2012, we did not enter into any new leasing arrangements during the year ended December 31, 2012.
As of December 31, 2012 and 2011, we had deferred revenues of $0.7 million and $0.8 million of down payments which will be
recognized over the term of the individual leases. Through December 31, 2012, our leasing activity has not had a significant adverse impact on
our liquidity.
Reservation Payments
Reservation payments consist of fully refundable payments that allow potential customers to hold a reservation for the future purchase of a
Model S or Model X. We require an initial refundable reservation payment of at least $5,000 and these amounts are recorded as current liabilities
until the vehicle is delivered. The reservation payment becomes a nonrefundable deposit once the customer has selected the vehicle
specifications and enters into a purchase agreement. We require full payment of the purchase price of the vehicle only upon delivery of the
vehicle to the customer. Amounts received by us as reservation payments are generally not restricted as to their use by us. Upon delivery of the
vehicle, the related reservation payments are applied against the customer’s total purchase price for the vehicle and recognized in automotive
sales as part of the respective vehicle sale. As of December 31, 2012, we held reservation payments for undelivered vehicles in an aggregate
amount of $138.8 million.
Summary of Cash Flows
Net cash used in operating activities
Net cash used in investing activities
Net cash provided by financing activities
2012
Year Ended December 31,
2011
2010
$(266,081)
(206,930)
419,635
$(128,034)
(162,258)
446,000
$(127,817)
(180,297)
338,045
Revision of Prior Year Amounts
We have revised our consolidated statement of cash flows for the year ended December 31, 2011 to correct an immaterial error. Amounts
related to purchases of property and equipment during 2011 that were not paid at December 31, 2011 were erroneously included as cash outflows
from investing activities and cash inflows from operating activities in our previously issued financial statements. This revision resulted in a
$13.7 million decrease in purchases of property and equipment included in cash flows used in investing activities and a
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corresponding increase in the change in accounts payable resulting in an increase in cash flows used in operating activities.
There was no impact on previously reported total cash and cash equivalents, consolidated balance sheets or consolidated statements of
operations for any of these periods. See Notes 1 and 17 to our Consolidated Financial Statements included in this Annual Report on Form 10-K
under Item 8. Financial Statements and Supplementary Data.
Cash Flows from Operating Activities
We continue to experience negative cash flows from operations as we expand our business and build our infrastructure both in the United
States and internationally. Our cash flows from operating activities are significantly affected by our cash investments to support the growth of
our business in areas such as research and development and selling, general and administrative. Our operating cash flows are also affected by our
working capital needs to support growth and fluctuations in inventory, personnel related expenditures, accounts payable and other current assets
and liabilities. We currently expect our cash flow from operations in the first quarter of 2013 to be near breakeven as we continue to improve
gross margin and incur lower research and development expenses.
Net cash used in operating activities was $266.1 million during the year ended December 31, 2012. The largest component of our cash
used during this period related to our net loss of $396.2 million, which included non-cash charges of $50.1 million related to stock-based
compensation expense, $28.8 million related to depreciation and amortization and $4.9 million related to inventory write-downs and adverse
purchase commitments. Significant operating cash outflows were primarily related to $424.4 million of operating expenses, a $194.7 million
increase in inventory and operating lease vehicles and $383.2 million of cost of revenues, partially offset by a $197.4 million increase in
accounts payable and accrued liabilities, and a $1.1 million decrease in prepaid expenses and other current assets.
Inventory increased to meet our planned production requirements for Model S and powertrain component and system sales while the net
increase in accounts payable and accrued liabilities was due to both the growth of our business and the timing of vendor payments. Significant
operating cash inflows for the year ended December 31, 2012 were comprised primarily of automotive sales of $385.7 million, a $47.1 million
net increase in reservation payments and $27.6 million of development services revenue.
Net cash used in operating activities was $128.0 million for the year ended December 31, 2011. The largest component of our cash used
during this period related to our net loss of $254.4 million, which included non-cash charges of $29.4 million related to stock-based
compensation expense, $16.9 million related to depreciation and amortization and $2.8 million related to the fair value change in our warrant
liability. Significant operating cash outflows were primarily related to $313.1 million of operating expenses, $142.6 million of cost of revenues
and a $13.6 million increase in inventory and operating lease vehicles, partially offset by a $30.5 million increase in accounts payable and
accrued liabilities, and a $2.6 million increase in other long-term liabilities. Inventory increased to meet our production requirements for the
Tesla Roadster as we planned for the final production of the Tesla Roadster and powertrain component sales as well as leasing activities. The
increase in accounts payable and accrued liabilities was due to both the growth of our business and the timing of vendor payments.
Significant operating cash inflows during the year ended December 31, 2011 were comprised primarily of automotive sales of $148.6
million, $55.7 million of development services revenue and a $61.0 million net increase in reservation payments, partially offset by a
$2.8 million increase in accounts receivable and a $1.9 million decrease in deferred revenue. The increase in accounts receivable was related
primarily to receivables from Toyota for shipments of powertrain components under the Toyota RAV4 EV Phase 1 contract services agreement
and shipments of battery packs and chargers to Daimler under the Daimler Smart fortwo and A-Class EV programs.
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Net cash used in operating activities was $127.8 million during the year ended December 31, 2010. The largest component of our cash
used during this period related to our net loss of $154.3 million, which included non-cash charges of $21.2 million related to stock-based
compensation expense, $10.6 million related to depreciation and amortization and $5.0 million related to the fair value change in our warrant
liabilities. Significant operating cash outflows were primarily related to $177.6 million of operating expenses, $86.0 million of cost of revenues,
a $28.5 million increase in inventory and operating lease vehicles, and a $5.0 million increase in prepaid expenses and other current assets,
partially offset by a $13.3 million increase in accrued liabilities and a $3.5 million increase in other long-term liabilities. Inventory increased to
meet our production requirements for the Tesla Roadster and powertrain component sales while the increase in prepaid expenses and other
current assets and accrued liabilities was due to both the growth of our business, as well as our increased manufacturing and Model S
development activities. Operating lease vehicles increased with the introduction of our leasing program in 2010. Other long-term liabilities
increased as a result of higher warranty liability from sales of the Tesla Roadster.
Significant operating cash inflows during the year ended December 31, 2010 were derived primarily from automotive sales of $97.1
million, $19.7 million of development services revenue, a $4.8 million increase in deferred revenues and a $4.7 million increase in reservation
payments, partially offset by a $3.2 million increase in accounts receivable. In October 2010, we entered into a Phase 1 contract services
agreement with Toyota for the development of a validated powertrain system, including a battery pack, power electronics module, motor,
gearbox and associated software, to be integrated into an electric vehicle version of the Toyota RAV4. Upon execution of the agreement, we
received a $5.0 million upfront payment for which revenue is being recognized over the expected term of our performance. Deferred revenues
also increased from our vehicle leasing activities as lease down-payments are recognized over the term of the operating leases. The increase in
accounts receivable was related primarily to powertrain component sales in relation to Daimler’s Smart fortwo EV program as well as $2.3
million receivable from Toyota for the achievement of the first milestone under the Phase 1 contract services agreement. During the year ended
December 31, 2010, we received $10.4 million of net new reservation payments for Model S while reservation payments for the Tesla Roadster
decreased by $5.7 million.
Cash Flows from Investing Activities
Cash flows from investing activities primarily relate to capital expenditures to support our growth in operations, including investments in
Model S manufacturing, as well as restricted cash that we must maintain in relation to our DOE Loan Facility, facility lease agreements,
equipment financing, and certain vendor credit policies. We currently expect our capital expenditures in the fiscal 2013 to be significantly less
than those of fiscal 2012, as we have concluded the majority of our investment in the Tesla Factory and Model S tooling. This reduction will be
partially offset by expenditures related to expanding our service and store network, investing in new capital equipment and tooling to reduce
variable costs and new product development.
Net cash used in investing activities was $206.9 million during the year ended December 31, 2012 primarily related to $239.2 million in
purchases of capital equipment and tooling, partially offset by a $25.0 million in maturities of short-term marketable securities and an $8.6
million net transfer of cash out of our dedicated DOE account in accordance with the provisions of the DOE Loan Facility.
Net cash used in investing activities was $162.3 million during the year ended December 31, 2011 primarily related to $184.2 million in
purchases of capital equipment and $65.0 million in purchases of short-term marketable securities, partially offset by $50.1 million of net
transfers out of our dedicated DOE account in accordance with the provisions of the DOE Loan Facility and $40.0 million from the maturity of
short-term marketable securities. The increase in capital purchases was primarily due to significant development and construction activities at the
Tesla Factory as well as purchases of Model S related manufacturing equipment and tooling.
Net cash used in investing activities was $180.3 million during the year ended December 31, 2010 primarily related to capital purchases of
$105.4 million and a net increase in restricted cash of $74.9 million. The increase
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in capital purchases was driven primarily by $65.2 million of payments made in relation to our purchase of our Tesla Factory located in Fremont,
California from NUMMI, and certain manufacturing assets located thereon to be used for our Model S manufacturing, as well as $40.2 million
primarily related to other Model S capital expenditures, our transition to and build out of our powertrain manufacturing facility and corporate
headquarters in Palo Alto, California, and purchases of manufacturing equipment. Our purchase transactions with NUMMI were completed in
October 2010. The increase in restricted cash was primarily related to $100.0 million of net proceeds from our IPO and concurrent Toyota
private placement that we transferred to a dedicated account as required by our DOE Loan Facility, partially offset by $26.4 million that was
transferred out of the dedicated account during the third and fourth quarters of 2010 in accordance with the provisions of the DOE Loan Facility.
Cash Flows from Financing Activities
We have financed our operations primarily with proceeds from loans under the DOE Loan Facility beginning in 2010 and the net proceeds
from our public offerings and private placements of common stock.
Net cash provided by financing activities was $419.6 million during the year ended December 31, 2012 and was comprised primarily of
$221.5 million received from our follow-on public offering completed in October 2012, $188.8 million received from our draw-downs under the
DOE Loan Facility and $24.9 million received from the exercise of common stock options by employees and the purchase of common stock
under our employee stock purchase plan, partially offset by $12.7 million related to our first quarterly repayment of principal related to our loans
under the DOE Loan Facility, and $2.8 million related to principal repayments on capital leases.
Net cash provided by financing activities was $446.0 million during the year ended December 31, 2011 and was comprised primarily of
$231.5 million received from our follow-on public offering and concurrent private placements completed in June 2011, $204.4 million received
from our draw-downs under the DOE Loan Facility and $10.5 million received from the exercise of common stock options by employees and the
purchase of common stock under our employee stock purchase plan.
Cash provided by financing activities was $338.0 million during the year ended December 31, 2010 comprised primarily of $188.8 million
in proceeds from our IPO, $71.8 million we received from our loans under the DOE Loan Facility, $50.0 million in proceeds from the Toyota
private placement, $30.0 million in proceeds from the Panasonic private placement, partially offset by $3.7 million of issuance costs we incurred
in relation to our DOE Loan Facility and our IPO.
Contractual Obligations
The following table sets forth, as of December 31, 2012 certain significant cash obligations that will affect our future liquidity (in
thousands):
Year Ended December 31,
Operating lease obligations
Capital lease obligations
Long-term debt
Total
Total
2013
2014
2015
2016
2017
2018 and
thereafter
$ 92,639
15,364
487,551
$595,554
$13,866
5,646
58,068
$77,580
$14,298
5,199
57,216
$76,713
$13,692
3,566
56,378
$73,636
$19,967
923
55,535
$76,425
$ 8,103
30
54,666
$62,799
$ 22,713
—
205,688
$228,401
In October 2010, we completed the purchase of our Tesla Factory located in Fremont, California from NUMMI. NUMMI has previously
identified environmental conditions at the Fremont site which affect soil and groundwater, and is currently undertaking efforts to address these
conditions. Although we have been advised by NUMMI that it has documented and managed the environmental issues, we cannot determine
with certainty the potential costs to remediate any pre-existing contamination. Based on management’s best estimate, we estimated
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the fair value of the environmental liabilities that we assumed to be $5.3 million, which is not reflected in the table above as the timing of any
potential payments cannot be reasonably determined at this time. As NUMMI continues with its decommissioning activities and as we continue
with our construction and operating activities, it is reasonably possible that our estimate of environmental liabilities may change materially.
We have reached an agreement with NUMMI under which, over a ten year period, we will pay the first $15.0 million of any costs of any
governmentally-required remediation activities for contamination that existed prior to the completion of the facility and land purchase for any
known or unknown environmental conditions, and NUMMI has agreed to pay the next $15.0 million for such remediation activities. Our
agreement provides, in part, that NUMMI will pay up to the first $15.0 million on our behalf if such expenses are incurred in the first four years
of our agreement, subject to our reimbursement of such costs on the fourth anniversary date of the closing.
On the ten-year anniversary of the closing or whenever $30.0 million has been spent on the remediation activities, whichever comes first,
NUMMI’s liability to us with respect to remediation activities ceases, and we are responsible for any and all environmental conditions at the
Fremont site. At that point in time, we have agreed to indemnify, defend, and hold harmless NUMMI from all liability and we have released
NUMMI for any known or unknown claims except for NUMMI’s obligations for representations and warranties under the agreement.
As of December 31, 2012 and 2011, we held reservation payments of $138.8 million and $91.8 million from potential customers,
respectively, which are not reflected in the table above. In order to convert the reservation payments into revenue, we will need to sell vehicles to
these customers. All reservation payments for Model S are fully refundable until such time that a customer enters into a purchase agreement.
Off-Balance Sheet Arrangements
During the periods presented, we did not have relationships with unconsolidated entities or financial partnerships, such as entities often
referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet
arrangements or other contractually narrow or limited purposes.
ITEM 7A.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Foreign Currency Risk
Our revenues and costs denominated in foreign currencies are not completely matched. For example, a portion of our costs and expenses
for the year ended December 31, 2012 was denominated in foreign currencies, including the Japanese yen, euro and British pound. Conversely
for this period and until such time as we begin shipping significant quantities of Model S vehicles to foreign jurisdictions, we expect that a
significant majority of our revenue will be denominated in U.S. dollars. Accordingly, if the value of the U.S. dollar depreciates significantly
against these currencies, our costs as measured in U.S. dollars as a percent of our revenues will correspondingly increase and our margins will
suffer. As a result, our operating results could be adversely affected. In the future, and as we begin selling Model S overseas, we may have
greater revenues than costs denominated in other currencies, in which case a strengthening of the dollar would tend to reduce our revenues as
measured in U.S. dollars. To date, the foreign currency effect on our consolidated financial statements has not been significant.
Interest Rate Risk
We had cash and cash equivalents totaling $201.9 million as of December 31, 2012. A significant portion of our cash and cash equivalents
were invested in money market funds. Cash and cash equivalents are held for working capital purposes. We do not enter into investments for
trading or speculative purposes. We believe that we do not have any material exposure to changes in the fair value as a result of changes in
interest rates due to the short term nature of our cash equivalents.
As of December 31, 2012, we had loans under the DOE Loan Facility for an aggregate of $452.3 million and capital lease obligations of
$14.3 million, both of which are fixed rate instruments. Therefore, our results of operations are not subject to fluctuations in interest rates.
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ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Index to Consolidated Financial Statements
Page
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Comprehensive Loss
Consolidated Statements of Convertible Preferred Stock and Stockholders’ Equity (Deficit)
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
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92
93
94
95
96
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Report of Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of Tesla Motors, Inc.:
In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, comprehensive loss,
convertible preferred stock and stockholders’ equity (deficit) and cash flows present fairly, in all material respects, the financial position of Tesla
Motors, Inc. and its subsidiaries at December 31, 2012 and December 31, 2011, and the results of their operations and their cash flows for each
of the three years in the period ended December 31, 2012 in conformity with accounting principles generally accepted in the United States of
America. Also in our opinion, the Company did not maintain, in all material respects, effective internal control over financial reporting as of
December 31, 2012, based on criteria established in Internal Control – Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO) because a material weakness in internal control over financial reporting related to their
presentation and disclosure of non-cash capital expenditures in their consolidated statement of cash flows existed as of that date. A material
weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility
that a material misstatement of the annual or interim financial statements will not be prevented or detected on a timely basis. The material
weakness referred to above is described in Management’s Report on Internal Control over Financial Reporting appearing under Item 9A. We
considered this material weakness in determining the nature, timing, and extent of audit tests applied in our audit of the 2012 consolidated
financial statements and our opinion regarding the effectiveness of the Company’s internal control over financial reporting does not affect our
opinion on those consolidated financial statements. The Company’s management is responsible for these financial statements, for maintaining
effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included
in management’s report referred to above. Our responsibility is to express opinions on these financial statements, and on the Company’s internal
control over financial reporting based on our integrated audits (which were integrated audits in 2012 and 2011). We conducted our audits in
accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective
internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a
test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant
estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting
included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing
and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such
other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in
reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance
that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting
principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and
directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or
disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of
any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or
that the degree of compliance with the policies or procedures may deteriorate.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
March 7, 2013
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Tesla Motors, Inc.
Consolidated Balance Sheets
(in thousands, except share and per share data)
December 31,
December 31,
2012
Assets
Current assets
Cash and cash equivalents
Short-term marketable securities
Restricted cash
Accounts receivable
Inventory
Prepaid expenses and other current assets
Total current assets
Operating lease vehicles, net
Property, plant and equipment, net
Restricted cash
Other assets
Total assets
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable
Accrued liabilities
Deferred revenue
Capital lease obligations, current portion
Reservation payments
Long-term debt, current portion
Total current liabilities
Common stock warrant liability
Capital lease obligations, less current portion
Deferred revenue, less current portion
Long-term debt, less current portion
Other long-term liabilities
Total liabilities
Commitments and contingencies (Note 14)
Stockholders’ equity:
Preferred stock; $0.001 par value; 100,000,000 shares authorized; no shares issued and outstanding
Common stock; $0.001 par value; 2,000,000,000 shares authorized as of December 31, 2012 and
2011, respectively; 114,214,274 and 104,530,305 shares issued and outstanding as of December
31, 2012 and 2011, respectively
Additional paid-in capital
Accumulated other comprehensive loss
Accumulated deficit
Total stockholders’ equity
Total liabilities and stockholders’ equity
$
201,890
—
19,094
26,842
268,504
8,438
524,768
10,071
552,229
5,159
21,963
$ 1,114,190
$ 255,266
25,061
23,476
9,539
50,082
9,414
372,838
11,757
298,414
8,068
22,371
$ 713,448
$
$
303,382
39,798
1,905
4,365
138,817
50,841
539,108
10,692
9,965
3,060
401,495
25,170
989,490
—
115
1,190,191
—
(1,065,606)
124,700
$ 1,114,190
The accompanying notes are an integral part of these consolidated financial statements.
93
2011
56,141
32,109
2,345
1,067
91,761
7,916
191,339
8,838
2,830
3,146
268,335
14,915
489,403
—
104
893,336
(3)
(669,392)
224,045
$ 713,448
Table of Contents
Tesla Motors, Inc.
Consolidated Statements of Operations
(in thousands, except share and per share data)
2012
Revenues
Automotive sales
Development services
Total revenues
Cost of revenues
Automotive sales
Development services
Total cost of revenues
Gross profit
Operating expenses
Research and development
Selling, general and administrative
Total operating expenses
Loss from operations
Interest income
Interest expense
Other expense, net
Loss before income taxes
Provision for income taxes
Net loss
Net loss per share of common stock, basic and diluted
Weighted average shares used in computing net loss per share of common
stock, basic and diluted
$
$
$
385,699
27,557
413,256
Year Ended December 31,
2011
$
148,568
55,674
204,242
371,658
11,531
383,189
30,067
115,482
27,165
142,647
61,595
273,978
150,372
424,350
(394,283)
288
(254)
(1,828)
(396,077)
136
(396,213)
(3.69)
208,981
104,102
313,083
(251,488)
255
(43)
(2,646)
(253,922)
489
(254,411)
(2.53)
107,349,188
$
$
100,388,815
The accompanying notes are an integral part of these consolidated financial statements.
94
2010
$
97,078
19,666
116,744
79,982
6,031
86,013
30,731
92,996
84,573
177,569
(146,838)
258
(992)
(6,583)
(154,155)
173
$ (154,328)
$
(3.04)
50,718,302
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Tesla Motors, Inc.
Consolidated Statements of Comprehensive Loss
(in thousands)
2012
Net loss
Other comprehensive income (loss), net of tax:
Unrealized net loss on short-term marketable securities
Reclassification adjustment for gain included in net income
Other comprehensive income (loss)
Comprehensive loss
95
Year Ended December 31,
2011
2010
$396,213
$254,411
$154,328
3
3
$396,210
(3)
—
(3)
$254,414
—
—
—
$154,328
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Tesla Motors, Inc.
Consolidated Statements of Convertible Preferred Stock and Stockholders’ Equity (Deficit)
(in thousands, except share and per share data)
Convertible Preferred
Stock
Balance as of December 31, 2009
Issuance of common stock in July 2010 initial public
offering at $17.00 per share, net of issuance costs
of $17,497
Issuance of common stock in July 2010 concurrent
private placement at $17.00 per share
Issuance of common stock in November 2010 private
placement at $21.15 per share, net of issuance
costs of $42
Conversion of preferred stock into shares of common
stock
Issuance of common stock upon net exercise of
warrants
Issuance of common stock upon exercise of stock
options, net of repurchases
Tax benefits from employee equity awards
Stock-based compensation
Net loss
Balance as of December 31, 2010
Issuance of common stock in June 2011 public
offering at $28.76 per share, net of issuance costs
of $305
Issuance of common stock in June 2011 concurrent
private placements at $28.76 per share
Issuance of common stock upon exercise of stock
options, net of repurchases
Issuance of common stock under employee stock
purchase plan
Stock-based compensation
Comprehensive loss:
Net loss
Unrealized loss on short-term marketable
securities, net
Total comprehensive loss
Balance as of December 31, 2011
Issuance of common stock in October 2012 public
offering at $28.25 per share, net of issuance costs
of $584
Issuance of common stock upon exercise of stock
options, net of repurchases
Issuance of common stock under employee stock
purchase plan
Stock-based compensation
Comprehensive loss:
Net loss
Unrealized loss on short-term marketable
securities, net
Total comprehensive loss
Balance as of December 31, 2012
Shares
208,917,237
Amount
319,225
—
Common Stock
Additional
Accumulated
Accumulated
Other
Comprehensive
Total
Stockholders’
Equity
(Deficit)
(253,523)
Shares
7,284,200
Amount
7
Paid-In
Capital
7,124
11,880,600
12
184,461
—
—
184,473
Deficit
(260,654)
Loss
—
—
—
2,941,176
3
49,997
—
—
50,000
—
—
1,418,573
1
29,957
—
—
29,958
—
—
70,226,844
70
319,155
—
—
319,225
445,047
1
8,662
—
—
8,663
1
—
—
—
95
1,349
74
21,156
—
621,935
(208,917,237)
(319,225)
—
—
—
—
—
—
—
—
—
711,930
—
—
—
94,908,370
—
—
6,095,000
6
172,403
—
—
2,053,475
2
—
—
1,250,002
1
—
—
—
—
223,458
—
—
—
—
—
—
—
—
—
—
—
104,530,305
—
—
—
—
—
—
—
—
—
—
(154,328)
(414,982)
—
—
—
—
—
1,350
74
21,156
(154,328)
207,048
—
—
172,409
59,056
—
—
59,058
6,642
—
—
6,643
3,882
29,419
—
—
—
—
3,882
29,419
—
(254,411)
(3)
—
(3)
(3)
(254,414)
224,045
—
(254,411)
—
—
104
—
—
$ 893,337
7,964,601
8
221,483
—
—
221,491
—
1,345,842
2
16,498
—
—
16,500
—
—
—
—
373,526
—
1
8,388
50,485
—
—
—
—
8,389
50,485
—
—
(396,213)
—
(396,213)
—
—
—
—
—
—
—
—
(1,065,606)
—
—
—
—
—
114,214,274
$
—
—
—
—
115
$
—
—
—
1,190,191
The accompanying notes are an integral part of these consolidated financial statements.
96
—
—
(669,393)
$
$
3
$
3
(396,210)
124,700
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Tesla Motors, Inc.
Consolidated Statements of Cash Flows
(in thousands)
2012
Cash Flows From Operating Activities
Net loss
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization
Change in fair value of warrant liabilities
Discounts and premiums on short-term marketable securities
Stock-based compensation
Excess tax benefits from stock-based compensation
Loss on abandonment of fixed assets
Inventory write-downs
Changes in operating assets and liabilities
Accounts receivable
Inventories and operating lease vehicles
Prepaid expenses and other current assets
Other assets
Accounts payable
Accrued liabilities
Deferred development compensation
Deferred revenue
Reservation payments
Other long-term liabilities
Net cash used in operating activities
Cash Flows From Investing Activities
Purchases of marketable securities
Maturities of short-term marketable securities
Payments related to acquisition of Fremont manufacturing facility and related assets
Purchases of property and equipment excluding capital leases
Withdrawals out of (transfers into) our dedicated Department of Energy account, net
Increase in other restricted cash
Net cash used in investing activities
Cash Flows From Financing Activities
Proceeds from issuance of common stock in public offerings, net
Proceeds from issuance of common stock in private placements
Principal payments on capital leases and other debt
Proceeds from long-term debt and other long-term liabilities
Principal payments on long-term debt
Proceeds from exercise of stock options and other stock issuances
Excess tax benefits from stock-based compensation
Deferred common stock and loan facility issuance costs
Net cash provided by financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
Year Ended December 31,
2011
2010
$(396,213)
$(254,411)
$(154,328)
16,919
2,750
(112)
29,419
—
345
1,828
10,623
5,022
—
21,156
(74)
8
951
(17,303)
(194,726)
1,121
(482)
187,821
9,603
—
(526)
47,056
10,255
(266,081)
(2,829)
(13,638)
(248)
(288)
19,891
10,620
—
(1,927)
61,006
2,641
(128,034)
(3,222)
(28,513)
(4,977)
(463)
(212)
13,345
(156)
4,801
4,707
3,515
(127,817)
(14,992)
40,000
—
(239,228)
8,620
(1,330)
(206,930)
(64,952)
40,000
—
(184,226)
50,121
(3,201)
(162,258)
—
—
(65,210)
(40,203)
(73,597)
(1,287)
(180,297)
221,496
—
(2,832)
188,796
(12,710)
24,885
—
—
419,635
(53,376)
255,266
$ 201,890
172,410
59,058
(416)
204,423
—
10,525
—
—
446,000
155,708
99,558
$ 255,266
188,842
80,000
(315)
71,828
—
1,350
74
(3,734)
338,045
29,931
69,627
$ 99,558
$
$
$
28,825
1,854
56
50,145
—
1,504
4,929
Supplemental Disclosures
Interest paid
Income taxes paid
Supplemental noncash investing and financing activities
Conversion of preferred stock to common stock
Issuance of common stock upon net exercise of warrants
Issuance of convertible preferred stock warrant
Issuance of common stock warrant
Acquisition of property and equipment
6,938
117
—
—
—
—
44,890
The accompanying notes are an integral part of these consolidated financial statements.
97
3,472
282
—
—
—
—
15,592
1,138
9
319,225
6,962
6,294
1,701
4,482
Table of Contents
Tesla Motors, Inc.
Notes to Consolidated Financial Statements
1. Overview of the Company
Tesla Motors, Inc. (Tesla, we, us or our) was incorporated in the state of Delaware on July 1, 2003. We design, develop, manufacture and
sell high-performance fully electric vehicles and advanced electric vehicle powertrain components. We have wholly-owned subsidiaries in North
America, Europe and Asia. The primary purpose of these subsidiaries is to market and/or service our vehicles.
Since inception, we have incurred significant losses and have used approximately $709.2 million of cash in operations through
December 31, 2012. As of December 31, 2012, we had $201.9 million in cash and cash equivalents. We expect that our current sources of
liquidity, including cash, cash equivalents, cash held in our dedicated Department of Energy (DOE) account, together with our current
projections of cash flow from operating activities, will provide us adequate liquidity, based on our current plans. These capital sources will
enable us to fund our ongoing operations, continue research and development projects and establish sales and service centers.
Correction of Prior Year Amounts
We have revised our consolidated statement of cash flows for the year ended December 31, 2011 to correct an immaterial error. Amounts
related to purchases of property and equipment during 2011 that were not paid at December 31, 2011 were erroneously included as cash outflows
from investing activities in our previously issued financial statements. This revision resulted in a $13.7 million decrease in purchases of property
and equipment included in cash flows used in investing activities and a corresponding increase in the change in accounts payable resulting in an
increase in cash flows used in operating activities. We have also revised our supplemental disclosure of noncash acquisition of property and
equipment by an increase of $12.9 million for 2011.
Additionally, we have restated the unaudited statements of cash flows for interim periods during the years ended December 31, 2012 and
2011 for similar errors in our cash flows used in investing activities and cash flows used in operating activities (see Note 17).
There was no impact on previously reported total cash and cash equivalents, consolidated balance sheets or consolidated statements of
operations.
Unadjusted Error in 2009
In June 2010, we identified an error related to the understatement in stock-based compensation expense subsequent to the issuance of the
consolidated financial statements for the year ended December 31, 2009.
In the fourth quarter of 2009, we granted certain stock options for which a portion of the grant was immediately vested. We erroneously
accounted for the expense on a straight-line basis over the term of the award, while expense recognition should always be at least commensurate
with the number of awards vesting during the period. As a result, selling, general and administrative expenses and net loss for the year ended
December 31, 2009 were understated by $2.7 million. The error did not have an effect on the valuation of the stock options. As stock-based
compensation expense is a non-cash item, there was no impact on net cash used in operating activities for the year ended December 31, 2009.
To correct this error, we recorded additional stock-based compensation of $2.4 million in the three months ended June 30, 2010. We
considered the impact of the error on reported operating expenses and trends in operating results and determined that the impact of the error was
not material to previously reported financial information as well as those related to the year ended December 31, 2010.
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2. Summary of Significant Accounting Policies
Basis of Consolidation
The consolidated financial statements include the accounts of Tesla and its wholly owned subsidiaries. All significant inter-company
transactions and balances have been eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America
requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent
liabilities at the date of the financial statements, and reported amounts of expenses during the reporting period, including revenue recognition,
inventory valuation, warranties, fair value of financial instruments and stock-based compensation. Actual results could differ from those
estimates.
Revenue Recognition
We recognize revenues from sales of Model S and the Tesla Roadster, including vehicle options and accessories, vehicle service and sales
of regulatory credits, such as zero emission vehicle (ZEV) and greenhouse gas emission (GHG) credits, as well as sales of electric vehicle
powertrain components and systems, such as battery packs and drive units and sales of services related to the development of these systems. We
recognize revenue when: (i) persuasive evidence of an arrangement exists; (ii) delivery has occurred and there are no uncertainties regarding
customer acceptance; (iii) fees are fixed or determinable; and (iv) collection is reasonably assured.
For multiple deliverable revenue arrangements, we allocate revenue to each element based on a selling price hierarchy. The selling price
for a deliverable is based on its vendor specific objective evidence (VSOE) if available, third party evidence (TPE) if VSOE is not available, or
estimated selling price if neither VSOE nor TPE is available. To date, we have been able to establish the fair value for each of the deliverables
within multiple element arrangements because we sell each of the vehicles, vehicles accessories and options separately, outside of any multiple
element arrangements.
Automotive Sales
Automotive sales consisted of the following for the periods presented (in thousands):
2012
Vehicle, options and related sales
Powertrain component and related sales
Total automotive sales
$354,344
31,355
$385,699
Year Ended December 31,
2011
$101,708
46,860
$148,568
2010
$75,459
21,619
$97,078
Automotive sales consist primarily of revenue earned from the sales of the Model S, Tesla Roadster, vehicle service, and vehicle options,
accessories and destination charges as well as sales of regulatory credits. Automotive sales also consist of revenue earned from the sales of
electric vehicle powertrain components and systems, such as battery packs and drive units, to other automotive manufacturers. Sales or other
amounts collected in advance of meeting all of the revenue recognition criteria are not recognized in the consolidated statements of operations
and are instead recorded as deferred revenue on the consolidated balance sheets.
In regards to the sale of Model S and the Tesla Roadsters, revenue is generally recognized when all risks and rewards of ownership are
transferred to our customers. In a limited number of circumstances, we may deliver
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a vehicle to a customer without all of the options ordered by the customer if the options do not limit the functionality of the vehicle. In such
cases, we will continue to defer the related revenue based on the undelivered item’s fair value, as evidenced by the contractual price of the option
in stand-alone transactions. Automotive sales also consist of revenue earned from the sales of vehicle options, accessories and destination
charges. While these sales may take place separately from a vehicle sale, they are often part of a single vehicle sales agreement resulting in
multiple element arrangements. To determine the appropriate accounting for recognition of our revenue, we consider whether the deliverables
specified in the multiple element arrangement should be treated as separate units of accounting, and, if so, how the price should be allocated
among the elements, when to recognize revenue for each element, and the period over which revenue should be recognized. We also evaluate
whether a delivered item has value on a stand-alone basis prior to delivery of the remaining items by determining whether we have made
separate sales of such items or whether the undelivered items are essential to the functionality of the delivered items. Further, we assess whether
we know the fair value of the undelivered items, determined by reference to stand-alone sales of such items. To date, we have been able to
establish the fair value for each of the deliverables within these multiple element arrangements because we sell each of the vehicles, vehicle
accessories and options separately, outside of any multiple element arrangements. As each of these items has stand-alone value to the customer,
revenue from sales of vehicle accessories and options are recognized when those specific items are delivered to the customer.
In February 2010, we began offering a leasing program to qualified customers in the United States for the Tesla Roadster. Through our
wholly owned subsidiary, qualifying customers are permitted to lease the Tesla Roadster for 36 months, after which time they have the option of
either returning the vehicle to us or purchasing it for a pre-determined residual value. We account for these leasing transactions as operating
leases and accordingly, we recognize leasing revenues on a straight-line basis over the term of the individual leases and record cost of sales equal
to the depreciation of the leased vehicles. As of December 31, 2012 and 2011, we had deferred revenues of $0.7 million and $0.8 million,
respectively, of down payments which will be recognized over the term of the individual leases. Lease revenues are recorded in automotive sales
and for the years ended December 31, 2012, 2011 and 2010, we recognized $3.6 million, $3.0 million and $0.8 million, respectively.
Regulatory Credits Sales
California and certain other states have laws in place requiring vehicle manufacturers to ensure that a portion of the vehicles delivered for
sale in that state during each model year are zero emission vehicles. These laws and regulations provide that a manufacturer of zero emission
vehicles may earn regulatory credits, and may sell excess credits to other manufacturers who apply such credits to comply with these regulatory
requirements. Similar regulations exist at the federal level which require compliance related to greenhouse gas (GHG) emissions and also allow
for the sale of excess credits by one manufacturer to other manufacturers. As a manufacturer solely of zero emission vehicles, we have earned
emission credits, such as ZEV and GHG credits on vehicles, and we expect to continue to earn these credits in the future. Since all of our
commercial vehicles are electric, we do not receive any compliance benefit from the generation of these credits, and accordingly look to sell
them to other vehicle manufacturers. In order to facilitate the sale of these credits, we enter into contractual agreements with third parties
requiring them to purchase our regulatory credits at pre-determined prices. We recognize revenue on the sale of these credits at the time legal
title to the credits are transferred to the purchasing party by the governmental agency issuing the credits. Revenue from the sale of regulatory
credits totaled $40.5 million, $2.7 million and $2.8 million for the years ended December 31, 2012, 2011 and 2010, respectively.
Extended Service and Battery Replacement Plans
We provide Tesla Roadster customers with the opportunity to purchase an extended warranty plan for the period after the end of our initial
New Vehicle Limited Warranty to cover additional services for an additional three years or 36,000 miles. We refer to this program as our
Extended Service plan. Amounts collected on these sales are initially recorded in deferred revenues on the consolidated balance sheets and
recognized in automotive sales over the extended warranty period. As of December 31, 2012 and 2011, we had deferred $1.5 million,
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respectively. During the year ended December 31, 2012, we recognized revenue of $0.1 million related to this program.
Additionally, we have previously provided customers of our Tesla Roadsters with a one-time option to replace the battery packs in their
vehicles at any time after the expiration of the New Vehicle Limited Warranty but before the tenth anniversary of the purchase date of their
vehicles. We refer to this program as our Battery Replacement program. Amounts collected on these sales are initially recorded in deferred
revenues on the consolidated balance sheets and recognized in automotive sales as we fulfill our obligation to replace the battery packs. As of
December 31, 2012 and 2011, we had deferred $1.2 million, respectively, related to the Battery Replacement program and have not yet
recognized any related revenues.
Development Services Revenue
Revenue from development services arrangements consist of revenue earned from the development of electric vehicle powertrain
components and systems for other automobile manufacturers, including the design and development of battery packs, drive units and sample
vehicles to meet a customer’s specifications. Revenue is recognized as the performance requirements of each development arrangement are met
and collection is reasonably assured. Where development arrangements include substantive at-risk milestones, revenue is recognized based upon
the achievement of the contractually-defined milestones. Amounts collected in advance of meeting all of the revenue recognition criteria are not
recognized in the consolidated statement of operations and are instead recorded as deferred revenue on the consolidated balance sheets. Costs of
development services are expensed as incurred. When development services arrangements have multiple elements, we evaluate the separability
of the various deliverables to ensure appropriate revenue recognition. Costs of development services incurred in periods prior to the finalization
of an agreement are recorded as research and development expenses; once an agreement is finalized, these costs are recorded in cost of revenues.
Freestanding Stock Warrants
We had freestanding warrants to purchase shares of our convertible preferred stock prior to our IPO in July 2010. The warrants were
subject to re-measurement to fair value at each balance sheet date and any change in fair value was recognized in other expense, net, on the
consolidated statement of operations. For our Series C and other Series E convertible preferred stock warrants, excluding the DOE warrants, we
adjusted the liability for changes in fair value through the completion of our IPO. At that time, the convertible preferred stock warrants were net
exercised and the related liability was reclassified to additional paid-in capital. For the Series E convertible preferred stock warrants issued to the
DOE (see Note 8), upon the completion of our IPO, the DOE warrants converted into warrants to purchase our common stock. The related
liability will continue to be adjusted for changes in fair value until the earlier of vesting or expiration of the warrants. If the warrants are
exercised, the warrant liability will be reclassified to common stock and additional paid-in capital.
Cash and Cash Equivalents
All highly liquid investments with an original or remaining maturity of three months or less at the date of purchase are considered to be
cash equivalents. We currently deposit excess cash primarily in money market funds.
Marketable Securities
Marketable securities are comprised of commercial paper and corporate debt and are all designated as available-for-sale and reported at
estimated fair value, with unrealized gains and losses recorded in accumulated other comprehensive loss which is included within stockholders’
equity. Realized gains and losses on the sale of available-for-sale marketable securities are recorded in other expense, net. The cost of availablefor-sale
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marketable securities sold is based on the specific identification method. Interest, dividends, amortization and accretion of purchase premiums
and discounts on our marketable securities are included in other expense, net. Available-for-sale marketable securities with maturities greater
than three months at the date of purchase and remaining maturities of one year or less are classified as short-term marketable securities. Where
temporary declines in fair value exist, we have the ability and the intent to hold these securities for a period of time sufficient to allow for any
anticipated recovery in fair value.
We regularly review all of our marketable securities for other-than-temporary declines in fair value. The review includes but is not limited
to (i) the consideration of the cause of the impairment, (ii) the creditworthiness of the security issuers, (iii) the length of time a security is in an
unrealized loss position, and (iv) our ability to hold the security for a period of time sufficient to allow for any anticipated recovery in fair value.
Restricted Cash and Deposits
We maintain certain cash amounts restricted as to withdrawal or use. We maintained total restricted cash of $24.3 million and $31.5
million as of December 31, 2012 and 2011, respectively. Current restricted cash primarily represents cash held in separate dedicated accounts
required under our DOE loan facility (see Note 8) and is used as a mechanism to defer advances under the DOE loan facility as well as to prefund planned future loan repayments. Noncurrent restricted cash is comprised primarily of security deposits held by vendors as part of the
vendors’ standard credit policies, security deposits related to lease agreements and equipment financing, and certain refundable reservation
payments segregated in accordance with state consumer protection regulations.
Accounts Receivable and Allowance for Doubtful Accounts
Accounts receivable primarily include amounts related to sales of powertrain systems and regulatory credits to other vehicle
manufacturers. In circumstances where we are aware of a specific customer’s inability to meet its financial obligations to us, we provide an
allowance against amounts receivable to reduce the net recognized receivable to the amount we reasonably believe will be collected. We
typically do not carry accounts receivable related to our vehicle and related sales as customer payments are due prior to vehicle delivery.
Concentration of Risk
Credit Risk
Financial instruments that potentially subject us to a concentration of credit risk consist of cash, cash equivalents, marketable securities,
restricted cash and accounts receivable. Our cash equivalents are primarily invested in money market funds with high credit quality financial
institutions in the United States. At times, these deposits and securities may be in excess of insured limits. We invest cash not required for use in
operations in high credit quality securities based on our investment policy. Our investment policy provides guidelines and limits regarding credit
quality, investment concentration, investment type, and maturity that we believe will provide liquidity while reducing risk of loss of capital.
Investments are of a short-term nature and include investments in corporate debt securities.
As of December 31, 2012 and 2011, our accounts receivable were derived primarily from the development and sales of powertrain systems
as well as sales of regulatory credits to other automobile manufacturers.
The following summarizes the accounts receivable in excess of 10% of our total accounts receivable:
Customer A
Customer B
Customer C
December 31,
December 31,
2012
2011
56%
15%
—
102
—
52%
38%
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Supply Risk
Although there may be multiple suppliers available, many of the components used in our vehicles are purchased by us from a single
source. If these single source suppliers fail to satisfy our requirements on a timely basis at competitive prices, we could suffer manufacturing
delays, a possible loss of revenues, or incur higher cost of sales, any of which could adversely affect our operating results.
Inventories and Inventory Valuation
Inventories are stated at the lower of cost or market. Cost is computed using standard cost, which approximates actual cost on a first-in,
first-out basis. We record inventory write-downs based on reviews for excess and obsolescence determined primarily by future demand
forecasts. We also adjust the carrying value of our inventories when we believe that the net realizable value is less than the carrying value. These
write-downs are measured as the difference between the cost of the inventory, including estimated costs to complete, and estimated selling
prices. Once inventory is written down, a new, lower-cost basis for that inventory is established, and subsequent changes in facts and
circumstances do not result in the restoration or increase in that newly established cost basis.
Property, Plant and Equipment
Property, plant and equipment are recognized at cost less accumulated depreciation. Depreciation is generally computed using the straightline method over the estimated useful lives of the related assets as follows:
Computer equipment and software
Office furniture, machinery and equipment
Building and building improvements
3 years
3 to 12 years
30 years
Depreciation for tooling is computed using the units-of-production method whereby capitalized costs are amortized over the total estimated
productive life of the related assets, which is generally up to 125,000 vehicles.
Leasehold improvements are amortized on a straight-line basis over the shorter of their estimated useful lives or the term of the related
lease. Upon retirement or sale, the cost and related accumulated depreciation are removed from the balance sheet and the resulting gain or loss is
reflected in operations. Maintenance and repair expenditures are expensed as incurred, while major improvements that increase functionality of
the asset are capitalized and depreciated ratably to expense over the identified useful life. Land is not depreciated.
Interest expense on outstanding debt is capitalized during the period of significant capital asset construction. Capitalized interest on
construction in progress is included in property, plant and equipment, and is amortized over the life of the related assets.
Operating Lease Vehicles
Vehicles that are leased as part of our leasing program, are classified as operating lease vehicles. Operating lease vehicles are recorded at
cost less accumulated depreciation. Depreciation is computed using the straight-line method over the term of the operating leases of three years.
The total cost of operating lease vehicles recorded in the consolidated balance sheets as of December 31, 2012 and 2011 was $13.4 million and
$13.7 million, respectively. Accumulated depreciation related to leased vehicles as of December 31, 2012 and 2011 was $3.3 million and $2.0
million, respectively.
Intangible Assets
Intangible assets with finite useful lives are amortized over their estimated useful lives. As of December 31, 2012 and 2011, intangible
assets are comprised of emission permits related to our Tesla Factory. These emission permits are related to the operation of our Tesla Factory
and therefore, are amortized over the same useful life.
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Long-lived Assets
We evaluate our long-lived assets, including intangible assets, for indicators of possible impairment when events or changes in
circumstances indicate the carrying amount of an asset may not be recoverable. Impairment exists if the carrying amounts of such assets exceed
the estimates of future net undiscounted cash flows expected to be generated by such assets. Should impairment exist, the impairment loss would
be measured based on the excess carrying value of the asset over the asset’s estimated fair value. As of December 31, 2012 and 2011, we have
not recorded any impairment losses on our long-lived assets.
Research and Development Costs
Research and development costs are expensed as incurred. Research and development expenses consist primarily of payroll, benefits and
stock-based compensation of those employees engaged in research, design and development activities, costs related to design tools, license
expenses related to intellectual property, supplies and services, depreciation and other occupancy costs. Also included in research and
development are development services costs incurred, if any, prior to the finalization of agreements with our development services customers as
reaching a final agreement and revenue recognition is not assured. Development services costs incurred after the finalization of an agreement are
recorded in cost of revenues.
Advertising and Promotion Costs
Advertising and sales promotion costs are expensed as incurred. During the years ended December 31, 2012, 2011 and 2010, advertising,
promotion and related marketing expenses were $3.9 million, $2.9 million and $3.1 million, respectively.
Income Taxes
Income taxes are computed using the asset and liability method, under which deferred tax assets and liabilities are determined based on the
difference between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which the
differences are expected to affect taxable income. Valuation allowances are established when necessary to reduce deferred tax assets to the
amount expected to be realized.
We record liabilities related to uncertain tax positions when, despite our belief that our tax return positions are supportable, we believe that
it is more likely than not that those positions may not be fully sustained upon review by tax authorities. Accrued interest and penalties related to
unrecognized tax benefits are classified as income tax expense.
Stock-based Compensation
We recognize compensation expense for costs related to all share-based payments, including stock options. The fair value of share-based
payment awards are estimated on the grant date using an option pricing model. Stock-based compensation expense is recognized on a straightline basis over the service period, net of estimated forfeitures.
We have elected to use the “with and without” approach in determining the order in which tax attributes are utilized. As a result, we will
only recognize a tax benefit from stock-based awards in additional paid-in capital if an incremental tax benefit is realized after all other tax
attributes currently available to us have been utilized. In addition, we have elected to account for the indirect effects of stock-based awards on
other tax attributes, such as the research tax credit, through our consolidated statement of operations.
We account for equity instruments issued to non-employees based on the fair value of the awards. The fair value of the awards granted to
non-employees is re-measured as the awards vest and the resulting change in fair value, if any, is recognized in the consolidated statements of
operations during the period the related services are rendered.
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For performance-based awards, stock-based compensation expense is recognized over the expected performance achievement period of
individual performance milestones when the achievement of each individual performance milestone becomes probable.
In August 2012, our Board of Directors granted stock options to Elon Musk, our Product Architect and Chief Executive Officer (CEO
Grant) subject to a vesting schedule based entirely on performance and market conditions. The stock-based compensation expense associated
with the CEO Grant is recognized over the longer of the expected achievement period of the performance and market conditions as the relevant
performance condition is probable of being met (see Note 10).
Foreign Currency Remeasurement and Transactions
For each of our foreign subsidiaries, the functional currency is the U.S. Dollar. For these foreign subsidiaries, monetary assets and
liabilities denominated in non-U.S. currencies are re-measured to U.S. Dollars using current exchange rates in effect at the balance sheet date.
Non-monetary assets and liabilities denominated in non-U.S. currencies are maintained at historical U.S. Dollar exchange rates. Revenues and
expenses are re-measured at average U.S. Dollar monthly rates.
Foreign currency transaction gains and losses are a result of the effect of exchange rate changes on transactions denominated in currencies
other than the functional currency. Transaction gains and losses are recognized in other expense, net, in the consolidated statements of operations
and have not been significant for any periods presented.
We hedge a portion of our foreign currency exposures related to outstanding monetary assets and liabilities using foreign currency
exchange forward contracts. In general, the market risk related to these contracts is offset by corresponding gains and losses on the hedged
transactions. The credit risk associated with these contracts is driven by changes in interest and currency exchange rates and, as a result, varies
over time. These contracts are not designated as hedges, and as a result, changes in their fair value are recorded in other expense, net, on our
consolidated statements of operations. We do not enter into derivative contracts for trading purposes.
Comprehensive Loss
Comprehensive loss is comprised of net loss and other comprehensive loss. Other comprehensive loss consists of unrealized gains and
losses on our available-for-sale marketable securities that have been excluded from the determination of net loss.
Warranties
We began recording warranty reserves with the commencement of Tesla Roadster sales in 2008. Initially, Tesla Roadsters were sold with a
warranty of three years or 36,000 miles, which we extended to four years or 50,000 miles for the purchasers of our 2008 Tesla Roadster. Tesla
Roadster customers had the opportunity to purchase an Extended Service plan for the period after the end of the New Vehicle Limited Warranty
to cover additional services for an additional three years or 36,000 miles, provided they are purchased within a specified period of time. In June
2012, we commenced deliveries of Model S. Model S is sold with a warranty of four years or 50,000 miles for most vehicle components and
covers the battery pack for a period of eight years or 100,000 miles, 125,000 miles or unlimited miles, depending on the size of the vehicle’s
battery, although the battery pack’s charging capacity is not covered under the New Vehicle Limited Warranty or any Extended Service plan.
Accrued warranty activity consisted of the following for the periods presented (in thousands):
2012
Accrued warranty—beginning of period
Warranty costs incurred
Provision for warranty
Accrued warranty—end of period
$ 6,315
(3,424)
10,122
$13,013
105
Year Ended December 31,
2011
$ 5,417
(2,750)
3,648
$ 6,315
2010
$ 3,757
(2,231)
3,891
$ 5,417
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We provide a warranty on all vehicle, production powertrain components and systems sales, and we accrue warranty reserves at the time a
vehicle or production powertrain component is delivered to the customer. Warranty reserves include management’s best estimate of the projected
costs to repair or to replace any items under warranty, based on actual warranty experience as it becomes available and other known factors that
may impact our evaluation of historical data. We review our reserves at least quarterly to ensure that our accruals are adequate in meeting
expected future warranty obligations, and we will adjust our estimates as needed. Warranty expense is recorded as a component of cost of
revenues in the consolidated statements of operations. The portion of the warranty provision which is expected to be incurred within 12 months
from the balance sheet date is classified as current, while the remaining amount is classified as long-term.
Environmental Liabilities
We are subject to federal and state laws and regulations for the protection of the environment, including those related to the discharge of
hazardous materials and remediation of contaminated sites. In October 2010, we completed the purchase of our Tesla Factory located in
Fremont, California from New United Motor Manufacturing, Inc. (NUMMI). NUMMI has previously identified environmental conditions at the
Fremont site which affect soil and groundwater. As the owner of the Fremont site, we may be responsible for the entire investigation and
remediation of any environmental contamination at the Fremont site, whether it occurred before or after the date we purchased the property.
Upon the completion of the purchase in October 2010, we recorded the fair value of the environmental liabilities that we estimated to be $5.3
million. The fair value of these liabilities was determined based on an expected value analysis of the related potential costs to investigate,
remediate and manage various environmental conditions that were identified as part of NUMMI’s facility decommissioning activities as well as
our own diligence efforts. Estimated potential costs are not discounted to present value as the timing of payments cannot be reasonably
estimated.
Net Loss per Share of Common Stock
Our basic and diluted net loss per share of common stock is calculated by dividing net loss by the weighted-average shares of common
stock outstanding for the period. Potentially dilutive shares, which are based on the number of shares underlying outstanding stock options and
warrants, are not included when their effect is antidilutive.
The following table presents the potential common shares outstanding that were excluded from the computation of basic and diluted net
loss per share of common stock for the periods presented:
Period-end stock options to purchase common stock
Period-end DOE warrant to purchase common stock
Period-end common stock subject to repurchase
2012
Year Ended December 31,
2011
2010
25,007,776
3,090,111
—
15,806,663
3,090,111
278
13,804,788
3,090,111
2,669
3. Balance Sheet Components
Inventory
As of December 31, 2012 and 2011, our inventory consisted of the following (in thousands):
December 31,
December 31,
2012
Raw materials
Work in process
Finished goods
Service parts
Total
$ 163,637
24,535
62,559
17,773
$ 268,504
106
2011
$
$
12,095
3,665
26,120
8,202
50,082
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We write down inventory as a result of excess and obsolete inventories, or when we believe that the net realizable value of inventories is
less than the carrying value. During the years ended December 31, 2012, 2011 and 2010, we recorded write-downs of $5.0 million, $1.8 million
and $1.0 million, respectively, in cost of automotive sales.
Property, Plant and Equipment
As of December 31, 2012 and 2011, our property, plant and equipment, net, consisted of the following (in thousands):
December 31,
December 31,
2012
Machinery, equipment and office furniture
Tooling
Building and building improvements
Leasehold improvements
Land
Computer equipment and software
Construction in progress
2011
$ 223,745
172,584
50,574
39,224
26,391
22,125
75,129
609,772
(57,543)
$ 552,229
Less: Accumulated depreciation and amortization
Total
$
21,495
16,584
—
27,901
26,391
10,804
227,461
330,636
(32,222)
$ 298,414
Construction in progress is comprised primarily of assets related to the manufacturing of our Model S, including building improvements at
our Tesla Factory in Fremont, California as well as tooling and manufacturing equipment and capitalized interest expense. Depreciation of these
assets begins when they are ready for their intended use. Interest expense on outstanding debt is capitalized during the period of significant
capital asset construction. Capitalized interest on construction in progress is included in property, plant and equipment, and is amortized over the
life of the related assets. During the years ended December 31, 2012 and 2011, we capitalized $7.6 million and $5.1 million of interest expense,
respectively.
Depreciation and amortization expense during the years ended December 31, 2012, 2011 and 2010 were $25.3 million, $14.6 million and
$10.0 million, respectively. Total property and equipment assets under capital lease as of December 31, 2012 and 2011 were $8.1 million and
$2.4 million, respectively. Accumulated depreciation related to assets under capital lease as of these dates were $1.0 million and $0.3 million,
respectively.
Other Assets
As of December 31, 2012 and 2011, our other assets consisted of the following (in thousands):
December 31,
December 31,
2012
Emission permits
Loan facility issuance costs, net
Other
Total
$
$
14,267
5,759
1,936
21,962
2011
$
$
14,508
6,407
1,456
22,371
Emission permits are related to the operation of our Tesla Factory; therefore, we amortize the emission permits over the same useful life.
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Accrued Liabilities
As of December 31, 2012 and 2011, our accrued liabilities consisted of the following (in thousands):
December 31,
December 31,
2012
Payroll and related costs
Accrued purchases
Taxes payable
Accrued warranty
Other
Total
$
$
15,525
10,334
9,710
3,056
1,173
39,798
2011
$
$
8,905
19,645
967
2,044
548
32,109
Other Long-Term Liabilities
As of December 31, 2012 and 2011, our other long-term liabilities consisted of the following (in thousands):
December 31,
December 31,
2012
Accrued warranty, long-term
Deferred rent liability
Environmental liabilities
Other
Total
$
$
9,957
6,075
5,300
3,838
25,170
2011
$
$
4,271
3,839
5,300
1,505
14,915
4. Fair Value of Financial Instruments
The carrying values of our financial instruments including cash equivalents, marketable securities, accounts receivable and accounts
payable approximate their fair value due to their short-term nature. As a basis for determining the fair value of certain of our assets and
liabilities, we established a three-tier fair value hierarchy which prioritizes the inputs used in measuring fair value as follows: (Level I)
observable inputs such as quoted prices in active markets; (Level II) inputs other than the quoted prices in active markets that are observable
either directly or indirectly; and (Level III) unobservable inputs in which there is little or no market data which requires us to develop our own
assumptions. This hierarchy requires us to use observable market data, when available, and to minimize the use of unobservable inputs when
determining fair value. Our financial assets that are measured at fair value on a recurring basis consist of cash equivalents and marketable
securities. Our liabilities that are measured at fair value on a recurring basis consist of our common stock warrant liability.
All of our cash equivalents and current restricted cash, which are comprised primarily of money market funds, are classified within Level I
of the fair value hierarchy because they are valued using quoted market prices or market prices for similar securities. Our short-term marketable
securities are classified within Level II of the fair value hierarchy and the market approach was used to determine fair value of these investments.
Our common stock warrant liability (see Note 8) is classified within Level III of the fair value hierarchy.
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As of December 31, 2012 and 2011, the fair value hierarchy for our financial assets and financial liabilities that are carried at fair value
was as follows (in thousands):
December 31, 2012
Money market funds
Corporate note
Commercial paper
Total
Common stock warrant liability
Foreign currency forward contracts
Total
Fair
Value
Level I
$60,272
—
—
$60,272
$10,692
—
$10,692
$60,272
—
—
$60,272
$ —
—
$ —
December 31, 2011
Level II
Level III
$ —
—
—
$ —
$ —
—
$ —
$
—
—
—
$ —
$10,692
—
$10,692
Fair
Value
Level I
Level II
Level III
$196,701
10,062
14,999
$221,762
$ 8,838
109
$ 8,947
$196,701
—
—
$196,701
$
—
—
$
—
$ —
10,062
14,999
$25,061
$ —
109
$ 109
$ —
—
—
$ —
$ 8,838
—
$ 8,838
All of our available-for-sale marketable securities matured during the year ended December 31, 2012. Our available-for-sale marketable
securities classified by security type as of December 31, 2011 consisted of the following (in thousands):
December 31, 2011
Gross
Gross
Unrealized
Unrealized
Amortized Cost
Corporate note
Commercial paper
Total
$
$
10,065
14,999
25,064
Gains
$
$
—
—
—
Losses
$
(3)
—
(3)
$
Fair Value
$ 10,062
14,999
$ 25,061
All of our marketable securities with gross unrealized losses had been in a continuous unrealized loss position for less than twelve months
as of December 31, 2011. We determined that the gross unrealized losses on our marketable securities as of December 31, 2011 were temporary
in nature.
The changes in the fair value of our common stock warrant liability were as follows (in thousands):
Year Ended December 31,
2012
2011
Fair value, beginning of period
Change in fair value
Fair value, end of period
$
8,838
1,854
$ 10,692
$ 6,088
2,750
$ 8,838
The estimated fair value of our long-term debt based on a market approach was approximately $366.9 million (par value of $452.3 million)
and $220.3 million (par value of $276.3 million) as of December 31, 2012 and 2011, respectively, and represent Level II valuations. When
determining the estimated fair value of our long-term debt, we used a commonly accepted valuation methodology and market-based risk
measurements that are indirectly observable, such as credit risk.
We operate in various foreign countries, which exposes us to foreign currency exchange risk between the U.S. dollar and various foreign
currencies, the most significant of which have been the Japanese yen, euro and British pound. In order to manage this risk, we enter into selected
foreign currency forward contracts. These contracts are not designated as hedges, and as a result, changes in their fair value are recorded in other
expense, net, on our consolidated statements of operations. During the years ended December 31, 2012, 2011 and 2010, net gains and losses
related to these instruments were not significant. We had notional amounts on foreign currency exchange contracts outstanding of $8.8 million as
of December 31, 2011. There were no foreign currency forward contracts outstanding as of December 31, 2012.
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5. Reservation Payments
Reservation payments consist of payments that allow potential customers to hold a reservation for the future purchase of a Model S, Model
X or Tesla Roadster. These amounts are recorded as current liabilities until the vehicle is delivered. For Model S and Model X, we require an
initial fully refundable reservation payment of at least $5,000. The reservation payment becomes a nonrefundable deposit once the customer has
selected the vehicle specifications and enters into a purchase agreement. We require full payment of the purchase price of the vehicle only upon
delivery of the vehicle to the customer. Amounts received by us as reservation payments are generally not restricted as to their use by us. Upon
delivery of the vehicle, the related reservation payments are applied against the customer’s total purchase price for the vehicle and recognized in
automotive sales as part of the respective vehicle sale.
As of December 31, 2012 and 2011, we held reservation payments of $138.8 million and $91.8 million, respectively. In order to convert
the reservation payments into revenue, we will need to sell vehicles to these customers.
6. Convertible Preferred Stock
On June 28, 2010, our registration statement on Form S-1 for our IPO was declared effective by the SEC and on July 2, 2010, we closed
our IPO. As a result of the IPO, our convertible preferred stock was automatically converted into common stock.
The following table summarizes information related to our convertible preferred stock prior to their conversion into common stock:
Share Price
Series A
Series B
Series C
Series D
Series E
Series F
Total
Par Value
at issuance
$ 0.001
0.001
0.001
0.001
0.001
0.001
$
0.49
0.74
1.14
2.44
2.51
2.97
Liquidation
Issued and
Authorized
Outstanding
Preference
(In thousands except share and per share amounts)
7,213,000
17,459,456
35,893,172
18,440,449
112,897,905
30,000,000
221,903,982
7,213,000
17,459,456
35,242,290
18,440,449
102,776,779
27,785,263
208,917,237
$
3,556
12,920
40,000
45,000
258,175
82,500
$ 442,151
Proceeds, Net
$
3,549*
12,899
39,789
44,941
135,669
82,378
$ 319,225
* Net of $3.9 million conversion of Series A convertible preferred stock to common stock.
Each of our Series A, B, D, E and F convertible preferred stock converted on a 1:0.33 basis into common stock while the Series C
convertible preferred stock converted on a 1:0.35 basis.
Dividends
No dividends on the convertible preferred stock have been declared by the Board of Directors from inception through their conversion into
common stock.
7. Convertible Preferred Stock Warrants
Series C convertible preferred warrants were net exercised for 184,359 shares of common stock at our IPO in July 2010. The fair value of
these warrants as of July 2, 2010 in the amount of $3.6 million was recorded in equity on the consolidated balance sheet, and a charge from the
change in the fair value of these warrants during 2010 in the amount of $2.6 million was recognized in other expense, net, in the consolidated
statement of operations.
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Series E convertible preferred stock warrants were net exercised for 160,688 shares of common stock at our IPO in July 2010. The fair
value of these warrants as of July 2, 2010 in the amount of $3.4 million was recorded in equity on the consolidated balance sheet, and a charge
from the change in the fair value of these warrants during 2010 in the amount of $2.7 million was recognized in other expense, net, on the
consolidated statement of operations.
8. Department of Energy Loan Facility
On January 20, 2010, we entered into a loan facility with the Federal Financing Bank (FFB), and the DOE, pursuant to the Advanced
Technology Vehicles Manufacturing (ATVM) Incentive Program. This loan facility was amended in June 2011 to expand our cash investment
options, in February 2012 to modify the timing of certain future financial covenants and funding of the debt service reserve account, and in June
and December 2012 to allow us to effect certain initiatives in our business plan. In September 2012, we entered into an amendment with the
DOE to remove our obligation to comply with the current ratio financial covenant as of September 30, 2012 and amend the timing of prefunding the principal payment due in June 2013. We entered into another amendment with the DOE in March 2013 that, among other things,
modified certain future financial covenants, accelerated the maturity date of the DOE Loan Facility to December 15, 2017, created an obligation
to repay approximately 1.0% of the outstanding principal under the DOE Loan Facility on or before June 15, 2013, and created additional
contingent obligations based on excess cash flows that may result in accelerated repayment of the DOE Loan Facility starting in 2015. The
original amortization schedule for the DOE Loan Facility is not affected by this recent amendment, and so the debt service payments remain the
same until the new maturity date when all outstanding loans under the DOE Loan Facility are to be repaid. We refer to the loan facility with the
DOE, as amended, as the DOE Loan Facility. Under the DOE Loan Facility, the FFB has made available to us two multi-draw term loan
facilities in an aggregate principal amount of $465.0 million. An aggregate principal amount of $101.2 million was made available under the first
term loan facility to finance up to 80% of the costs eligible for funding for the powertrain engineering and the build out of a facility to design
and manufacture lithium-ion battery packs, electric motors and electric components (the Powertrain Facility). Aggregate principal amount of
$363.9 million was made available under the second term loan facility to finance up to 80% of the costs eligible for funding for the development
of, and to build out the manufacturing facility for, our Model S sedan (the Model S Facility). Under the DOE Loan Facility, we are responsible
for the remaining 20% of the costs eligible for funding under the ATVM Program for the projects as well as any cost overruns for each project.
As of August 31, 2012, we have fully drawn down the aforementioned facilities.
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Our DOE Loan Facility draw-downs have been as follows (in thousands):
Loan Facility Available
for Future Draw-downs
Beginning balance, January 20, 2010
Draw-downs received during the three months ended March 31, 2010
Draw-downs received during the three months ended June 30, 2010
Draw-downs received during the three months ended September 30, 2010
Draw-downs received during the three months ended December 31, 2010
Remaining balance, December 31, 2010
Draw-downs received during the three months ended March 31, 2011
Draw-downs received during the three months ended June 30, 2011
Draw-downs received during the three months ended September 30, 2011
Draw-downs received during the three months ended December 31, 2011
Remaining balance, December 31, 2011
Draw-downs received during the three months ended March 31, 2012
Draw-downs received during the three months ended June 30, 2012
Draw-downs received during the three months ended September 30, 2012
Remaining balance, December 31, 2012
$
$
465,048
(29,920)
(15,499)
(11,138)
(15,271)
393,220
(30,656)
(31,693)
(90,822)
(51,252)
188,797
(84,267)
(71,274)
(33,256)
—
Interest rates
2.9% - 3.4%
2.5% -3.4%
1.7% -2.6%
1.7% - 2.8%
2.1% - 3.0%
1.8% - 2.7%
1.0% - 1.4%
1.0% - 1.5%
0.9% - 1.6%
1.0% - 1.3%
1.0% - 1.2%
Advances under the DOE Loan Facility accrue interest at a per annum rate determined by the Secretary of the Treasury as of the date of the
advance and will be based on the Treasury yield curve and the scheduled principal installments for such advance. Interest on advances under the
DOE Loan Facility is payable quarterly in arrears. Advances under the Powertrain Facility are repayable in 21 equal quarterly installments
commencing on December 15, 2012. All outstanding amounts under the Powertrain Facility will be due and payable on the maturity date of
December 15, 2017. Advances under the Model S Facility are repayable in 21 equal quarterly installments commencing on December 15, 2012.
All outstanding amounts under the Model S Facility will be due and payable on the maturity date of December 15, 2017. Advances under the
loan facilities may be voluntarily prepaid at any time at a price determined based on interest rates at the time of prepayment for loans made from
the Secretary of the Treasury to FFB for obligations with an identical payment schedule to the advance being prepaid, which could result in the
advance being prepaid at a discount, at par or at a premium. The loan facilities are subject to mandatory prepayment with net cash proceeds
received from certain dispositions, loss events with respect to property and other extraordinary receipts. All obligations under the DOE Loan
Facility are secured by substantially all of our property.
The DOE Loan Facility documents contain customary covenants that include, among others, a requirement that the projects be conducted
in accordance with the business plan for such project, compliance with all requirements of the ATVM Program, and limitations on our and our
subsidiaries’ ability to incur indebtedness, incur liens, make investments or loans, enter into mergers or acquisitions, dispose of assets, pay
dividends or make distributions on capital stock, pay indebtedness, pay management, advisory or similar fees to affiliates, enter into certain
affiliate transactions, enter into new lines of business, and enter into certain restrictive agreements, in each case subject to customary exceptions.
The DOE Loan Facility documents also contain customary financial covenants requiring us to maintain a minimum ratio of current assets to
current liabilities,
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and (i) a limit on capital expenditures, (ii) from December 31, 2013, a maximum leverage ratio, a minimum interest coverage ratio, a minimum
fixed charge coverage ratio, and (iii) from March 31, 2014, a maximum ratio of total liabilities to shareholder equity. We were in compliance
with our current applicable financial covenants as of December 31, 2012. The DOE Loan Facility documents also contain customary events of
default, subject in some cases to customary cure periods for certain defaults. In addition, events of default include a failure of Elon Musk, our
Chief Executive Officer (CEO), Product Architect and Chairman, and certain of his affiliates, at any time prior to one year after we complete the
project relating to the Model S Facility, to own at least 65% of capital stock held by Mr. Musk and such affiliates as of the date of the DOE Loan
Facility. As part of the most recent amendment to the DOE Loan Facility in March 2013, we agreed to, among other things, (i) make an early
payment of approximately 1.0% of the outstanding principal under the DOE Loan Facility on or before June 15, 2013, (ii) make additional
quarterly prepayments equal to: 20% of our excess cash flow for each quarter of fiscal 2015; and 35% of our excess cash flow for each quarter of
fiscal 2016 and 2017.
Under the DOE Loan Facility, we have agreed to fund a dedicated debt service reserve account. In February 2012, we pre-funded $15.0
million into this account, an amount equal to all principal and interest that came due on December 15, 2012. In October 2012, we also prefunded $14.2 million into this account, an amount equal to all principal and interest that will come due on March 15, 2013 in accordance with the
pre-funding requirement under the DOE Loan Facility. Most recently, in February 2013, we pre-funded $14.6 million into this account, an
amount equal to all principal and interest that will come due on June 15, 2013.
In addition, we have agreed to make additional payments, beginning June 15, 2013, of between $14.2 million to $14.5 million each quarter
to pre-fund the quarterly principal and interest payments that will be due from September 15, 2013 through December 15, 2014. Once we have
deposited such amounts, we will not be required to further pre-fund such debt service reserve account. As of December 31, 2012, $14.9 million
was held in this dedicated account. We have classified this cash as current restricted cash on the consolidated balance sheet.
DOE Warrant
In connection with the closing of the DOE Loan Facility, we have issued a warrant to the DOE to purchase shares of our common stock at
an exercise price of $7.54 per share and a warrant to purchase up to 5,100 shares of our common stock at an exercise price of $8.94 per share.
Beginning on December 15, 2018 and until December 14, 2022, the shares subject to purchase under these warrants will become exercisable in
quarterly amounts depending on the average outstanding balance of the loan during the prior quarter. These warrants may be exercised until
December 15, 2023. If we prepay the DOE Loan Facility in part or in full, the total amount of shares exercisable under the warrants will be
reduced.
Since the number of shares ultimately issuable under the warrant will vary depending on the average outstanding balance of the loan during
the contractual vesting period, and decisions to prepay would be influenced by our future stock price as well as the interest rates on our loans in
relation to market interest rates, we measured the fair value of the warrant using a Monte Carlo simulation approach. The Monte Carlo approach
simulates and captures the optimal decisions to be made between prepaying the DOE loan and the cancellation of the DOE warrant. For the
purposes of the simulation, the optimal decision represents the scenario with the lowest economic cost to us. The total warrant value would then
be calculated as the average warrant payoff across all simulated paths discounted to our valuation date.
The prepayment feature which allows us to prepay the DOE Loan Facility and consequently, affect the number of shares ultimately
issuable under the DOE warrant, was determined to represent an embedded derivative. This embedded derivative is inherently valued and
accounted for as part of the warrant liability on our consolidated balance sheets. Changes to the fair value of the embedded derivative are
reflected as part of the warrant liability re-measurement to fair value at each balance sheet reporting date.
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The warrant is recorded at its estimated fair value with changes in its fair value reflected in other expense, net, until its expiration or
vesting. The fair value of the warrant at issuance was $6.3 million, and along with the DOE Loan Facility fee of $0.5 million and other debt
issuance costs of $0.9 million, represents a cost of closing the loan facility and is being amortized to interest expense over the expected term of
the DOE Loan Facility of approximately 13 years. During the years ended December 31, 2012, 2011 and 2010, we amortized $0.6 million to
income expense, respectively.
The DOE warrant will continue to be recorded at its estimated fair value with changes in the fair value reflected in other expense, net, as
the number of shares of common stock ultimately issuable under the warrant is variable until its expiration or vesting. As of December 31, 2012
and 2011, the fair value of the DOE warrant was $10.7 million and $8.8 million, respectively. During the years ended December 31, 2012 and
2011, we recognized expense for the change in the fair value of the DOE warrant in the amount of $1.9 million and $2.8 million through other
expense, net, in the consolidated statements of operations, respectively. During the year ended December 31, 2010, we recognized income from
the change in the fair value of the DOE warrant in the amount of $0.2 million through other expense, net, in the consolidated statement of
operations.
9. Common Stock
In June 2010, our registration statement on Form S-1 for our IPO was declared effective by the Securities and Exchange Commission. As a
result, the number of authorized shares of our common stock increased from 106,666,667 to 2,000,000,000 shares.
In July 2010, we completed the IPO of common stock in which we sold a total of 11,880,600 shares of our common stock and received
cash proceeds of $188.8 million from this transaction, net of underwriting discounts and commissions. Concurrent with the closing of our IPO,
we also sold 2,941,176 shares of our common stock to Toyota in a private placement and received cash proceeds of $50.0 million. As a result of
the IPO, our convertible preferred stock was automatically converted into common stock and our outstanding warrants, excluding the DOE
warrant, were net exercised.
In November 2010, we entered into a common stock purchase agreement with an entity affiliated with Panasonic Corporation (Panasonic)
pursuant to which we issued and sold an aggregate of 1,418,573 shares of our common stock at a price of $21.15 per share, which was the
average of the trading highs and lows of our common stock from October 25 to October 29, 2010. Upon completion of the private placement
transaction on November 2, we received aggregate proceeds of $30.0 million. Concurrently with the sale and issuance of the shares to Panasonic,
we amended our investors’ rights agreement as of November 2, 2010 to grant Panasonic registration rights on a pari passu basis with certain
other holders of registration rights with respect to the shares of common stock purchased in the private placement.
In June 2011, we completed a follow-on offering of common stock in which we sold a total of 6,095,000 shares of our common stock and
received cash proceeds of $172.7 million from this transaction, net of underwriting discounts. Concurrent with this offering, we also sold
1,416,000 shares of our common stock to our CEO and 637,475 shares of our common stock to Blackstar InvestCo LLC, an affiliate of Daimler,
and received total cash proceeds of $59.1 million in the private placements. No underwriting discounts or commissions were paid in connection
with these private placements.
In October 2012, we completed a follow-on offering of common stock in which we sold a total of 7,964,601 shares of our common stock
and received cash proceeds of $222.1 million (which includes 35,398 shares or $1.0 million sold to our CEO) from this transaction, net of
underwriting discounts and offering costs.
Stockholder Settlement
During the three months ended March 31, 2010, three of our stockholders who are affiliated with one of our Board members asserted a
claim regarding the conversion of such stockholders’ convertible promissory notes
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into shares of our Series E convertible preferred stock at the time of our Series E preferred stock financing in May 2009. In May 2010, we
entered into a settlement agreement with these stockholders and pursuant to the terms of the settlement agreement, we issued warrants to such
stockholders which, upon the closing of our IPO in July 2010, were automatically net exercised for an aggregate of 100,000 shares of our
common stock. During the three months ended June 30, 2010, the fair value of these warrants in the amount of $1.7 million was recorded in
equity on the consolidated balance sheet based on a Black-Scholes valuation. In conjunction with the settlement of our liability to issue such
warrants, we recognized a charge of $1.1 million during the year ended December 31, 2010, through other expense, net, on the consolidated
statement of operations.
10. Equity Incentive Plans
In July 2003, we adopted the 2003 Equity Incentive Plan. Concurrent with the effectiveness of our registration statement on Form S-1 on
June 28, 2010 (see Note 9), we adopted the 2010 Equity Incentive Plan (the Plan) and all remaining common shares reserved for future grant or
issuance under the 2003 Equity Incentive Plan were added to the 2010 Equity Incentive Plan. The Plan provides for the granting of stock options
and stock purchase rights to our employees, directors and consultants. Options granted under the Plan may be either incentive options or
nonqualified stock options. Incentive stock options may be granted only to our employees including officers and directors. Nonqualified stock
options and stock purchase rights may be granted to our employees and consultants. Generally, our stock options vest over four years and are
exercisable over a period not to exceed the contractual term of ten years from the date the stock options are granted. Continued vesting typically
terminates when the employment or consulting relationship ends. As of December 31, 2012, there were 469,531 shares of common stock
reserved for issuance under the Plan.
The following table summarizes option activity under the Plan:
Outstanding Options
Shares Available
for Grant
Balance, December 31,2009
Additional options reserved
Repurchased restricted stock
Granted
Exercised
Cancelled
Balance, December 31, 2010
Additional options reserved
Granted
Exercised
Cancelled
Balance, December 31, 2011
Additional options reserved
Granted
Exercised
Cancelled
Balance, December 31, 2012
1,014,687
11,269,286
9,170
(3,328,705)
—
443,537
9,407,975
3,796,342
(4,011,973)
—
726,763
9,919,107
1,064,046
(11,854,941)
—
1,341,319
469,531
Number of Options
11,574,034
—
—
3,328,705
(721,080)
(443,537)
13,738,122
—
4,011,973
(1,216,669)
(726,763)
15,806,663
—
11,854,941
(1,312,439)
(1,341,389)
25,007,776
Weighted
Average
Exercise
Price
$ 5.44
—
0.90
17.96
1.84
6.61
8.62
27.49
5.41
15.26
13.35
31.18
12.52
25.51
21.20
In addition to stock options issued from the Plan, there were zero, 33,333 and 66,666 stock options as of December 31, 2012, 2011and
2010, respectively, that we had previously granted to non-employees outside of the Plan. These outstanding non-employee options had a
weighted average exercise price of $1.80 as of each year end.
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Additional information regarding all stock options outstanding and exercisable as of December 31, 2012 is summarized below:
Options Outstanding
Weighted
Range of Exercise Price
$0.15 - $6.15
$6.63 - $6.63
$9.96 - $25.27
$27.25 - $29.12
$29.25 - $31.07
$31.17 - $31.17
$31.49 - $33.15
$33.22 - $34.00
$34.57 - $34.57
$36.01 - $36.01
Number
Average
Exercise
Price
1,037,664
7,475,413
2,682,735
2,522,885
1,680,276
5,865,560
2,686,684
390,314
475,275
190,970
25,007,776
$ 3.08
6.63
19.00
28.18
30.14
31.17
31.80
33.29
34.57
36.01
21.20
Options Exercisable
Weighted
Average
Remaining
Contractual
Life (in
years)
6.99
Weighted
Number
Average
Exercise
Price
924,801
6,456,263
1,446,362
801,246
158,300
19,524
318,914
103,184
1,750
1,549
10,231,893
$ 2.98
6.63
17.98
28.30
30.36
31.17
31.51
33.22
34.57
36.01
11.07
Weighted
Average
Remaining
Contractual
Life (in
years)
5.35
Additional information regarding all stock options outstanding and exercisable as of December 31, 2011 is summarized below:
Options Outstanding
Weighted
Range of Exercise Price
$0.15 - $6.15
$6.63 - $6.63
$9.96 - $20.72
$22.88 - $27.88
$27.91 - $28.35
$28.43 - $28.43
$28.45 - $28.45
$30.41 - $30.41
$30.55 - $30.55
$33.22 - $33.22
Number
Average
Exercise
Price
1,617,294
7,695,280
2,039,559
1,788,889
479,412
428,212
971,262
179,838
258,500
381,750
15,839,996
$ 3.06
6.63
15.70
24.48
28.14
28.43
28.45
30.41
30.55
33.22
13.33
Options Exercisable
Weighted
Average
Remaining
Contractual
Life (in
years)
6.20
Weighted
Number
Average
Exercise
Price
1,099,285
4,694,483
826,053
126,574
8,152
5,312
215,150
2,450
71,956
3,939
7,053,354
$ 2.83
6.63
15.17
25.00
28.05
28.43
28.45
30.41
30.55
33.22
8.34
Weighted
Average
Remaining
Contractual
Life (in
years)
5.15
The aggregate intrinsic value represents the total pretax intrinsic value (i.e., the difference between our common stock price and the
exercise price, multiplied by the number of in-the-money options) that would have been received by the option holders had all option holders
exercised their options. The aggregate intrinsic value of options outstanding as of December 31, 2012 and 2011 was $317.7 million and
$243.9 million, respectively. The intrinsic value of options exercisable was $233.3 million and $142.8 million, and the intrinsic value of options
vested and expected to vest was $280.7 million and $220.5 million as of December 31, 2012 and 2011, respectively. The total intrinsic value of
options exercised was $35.1 million and $27.8 million for the years ended December 31, 2012 and 2011, respectively.
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Fair Value Adoption
We utilize the fair value method in recognizing stock-based compensation expense. Under the fair value method, we estimated the fair
value of each option award and Employee Stock Purchase Plan (the ESPP) on the grant date generally using the Black-Scholes option pricing
model and the weighted average assumptions noted in the following table.
2012
Risk-free interest rate:
Stock options
ESPP
Expected term (in years):
Stock options
ESPP
Expected volatility:
Stock options
ESPP
Dividend yield:
Stock options
ESPP
Year Ended December 31,
2011
2010
1.0%
0.2%
2.0%
0.2%
2.0%
—
5.9
0.5
6.0
0.5
5.3
—
63%
51%
70%
59%
71%
—
0.0%
0.0%
0.0%
0.0%
0.0%
—
The weighted-average grant-date fair value for option awards granted during the years ended December 31, 2012, 2011 and 2010 was
$16.37, $17.43 and $10.99 per share, respectively. The weighted-average grant-date fair value for ESPP granted during the years ended
December 31, 2012, 2011 and 2010 was $8.99, $7.52 and $5.49 per share, respectively.
The fair value of the shares of common stock underlying stock options granted to prior to our IPO in July 2010 was determined by the
Board of Directors as there was no public market for our common stock. The Board of Directors determined fair value of the common stock at
the time of each grant of options by considering a number of objective and subjective factors including valuation of comparable companies, sales
of convertible preferred stock to unrelated third parties, operating and financial performance, the lack of liquidity of capital stock, and trends in
the broader automobile industry. We have not granted stock options with an exercise price that is less than the fair value of the underlying
common stock as determined at the time of grant by our Board of Directors, with input from management.
Information regarding our stock option grants during the six months prior to the completion of our IPO, including the grant date; the
number of stock options issued with each grant; and the exercise price, which equals the grant date fair value of the underlying common stock
for each grant of stock options, is summarized as follows:
Exercise
Price and
Fair Value
per Share of
Grant Date
Number of
Options
Granted
March 3, 2010
April 28, 2010
June 12, 2010
402,660
256,320
1,135,710
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Common
Stock
9.96
13.23
14.17
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Performance-Based Stock Options
In December 2009, our Board of Directors approved an option grant to our CEO representing 4% of our fully-diluted share base prior to
such grant as of the grant date, or 3,355,986 stock options, with 1/4th of the shares vesting immediately, and 1/36th of the remaining shares
scheduled to vest each month over three years, assuming continued employment through each vesting date in recognition of his and our
company’s achievements and to create incentives for future success. In addition, to create incentives for the attainment of clear performance
objectives around a key element of our business plan— the successful launch and commercialization of Model S—the Board of Directors
approved an additional option grant to our CEO totaling an additional 4% of our fully-diluted shares prior to such grant as of the grant date, or
3,355,986 stock options, with a vesting schedule based entirely on the attainment of performance objectives as follows, assuming our CEO’s
continued employment and service to us through each vesting date:
•
1/4th of the shares subject to the option are scheduled to vest upon the successful completion of Model S Engineering Prototype;
•
1/4th of the shares subject to the option are scheduled to vest upon the successful completion of Model S Validation Prototype;
•
1/4th of the shares subject to the option are scheduled to vest upon the completion of the first Model S Production Vehicle; and
•
1/4th of the shares subject to the option are scheduled to vest upon the completion of the 10,000th Model S Production Vehicle.
If he does not meet one or more of the above milestones prior to the fourth anniversary of the date of the grant, he will forfeit his right to
the unvested portion of the grant. Through December 31, 2012, the first three performance milestones were achieved and the remaining
performance milestone was considered probable of achievement.
Due to the significant number of stock options granted to our CEO, we valued these December 2009 grants by using the following grantspecific Black-Scholes assumptions: risk-free interest rate of 1.7%, expected term of 4.1 years, expected volatility of 70% and dividend yield of
0%. Stock-based compensation expense related to this grant to our CEO was $4.2 million, $6.3 million and $9.2 million for the years ended
December 31, 2012, 2011 and 2010, respectively.
Our Board of Directors also approved option grants in June and September 2010 to purchase our common stock of 666,300 and 20,000,
respectively, to various members of our senior management with a vesting schedule based entirely on the attainment of the same performance
objectives as those outlined for our CEO above. Through December 31, 2012, the first three performance milestones were achieved and the
remaining performance milestone was considered probable of achievement. For the years ended December 31, 2012, 2011 and 2010, we
recognized $1.4 million, $4.9 million and $8.9 million, respectively, of stock-based compensation expense related to the attainment of
performance objectives. In August 2012, to create incentives for continued long term success beyond the Model S program and to closely align
executive pay with increases in stockholder value, our Board of Directors granted 5,274,901 stock options to our CEO (2012 CEO Grant). The
2012 CEO Grant consists of ten vesting tranches with a vesting schedule based entirely on the attainment of both performance conditions and
market conditions, assuming continued employment and service to us through each vesting date.
Each of the following ten vesting tranches requires a combination of one of the performance achievements outlined below and an
incremental increase in our market capitalization of $4.0 billion, as compared to the initial market capitalization of $3.2 billion.
•
Successful completion of the Model X Engineering Prototype (Alpha);
•
Successful completion of the Model X Vehicle Prototype (Beta);
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•
Completion of the first Model X Production Vehicle;
•
Successful completion of the Gen III Engineering Prototype (Alpha);
•
Successful completion of the Gen III Vehicle Prototype (Beta);
•
Completion of the first Gen III Production Vehicle;
•
Gross margin of 30% or more for four consecutive quarters;
•
Aggregate vehicle production of 100,000 vehicles;
•
Aggregate vehicle production of 200,000 vehicles; and
•
Aggregate vehicle production of 300,000 vehicles.
The term of the 2012 CEO Grant will be ten years, so that if any vesting tranches remain unvested after expiration of the 2012 CEO Grant,
they will be forfeited. In addition, our CEO will forfeit any unvested options if he is terminated as CEO of the Company, whether for cause or
otherwise.
We measured the fair value of the 2012 CEO Grant using a Monte Carlo simulation approach with the following assumptions: risk-free
interest rate of 1.65%, expected term of ten years, expected volatility of 55% and dividend yield of 0%.
Stock-based compensation expense associated with the 2012 CEO Grant is recognized for each performance condition over the vesting
period beginning at the point in time that the relevant performance condition is considered probable of being met, regardless as to whether the
related market condition is ever met (though meeting the market condition would also be required in order for the related options to ultimately
vest).
As of December 31, 2012, a performance milestone, coupled with a market condition, was considered probable of achievement. Stockbased compensation expense related to the 2012 CEO Grant was $1.3 million for the year ended December 31, 2012.
Summary Stock Based Compensation Information
The following table summarizes the stock-based compensation expense by line item in the consolidated statements of operations (in
thousands):
Cost of sales
Research and development
Selling, general and administrative
Total
2012
Year Ended December 31,
2011
$ 2,194
26,580
21,371
$50,145
$ 670
13,377
15,372
$29,419
2010
$
243
4,139
16,774
$21,156
We realized no income tax benefit from stock option exercises in each of the periods presented due to recurring losses and valuation
allowances. As required, we present excess tax benefits from the exercise of stock options, if any, as financing cash flows rather than operating
cash flows.
As of December 31, 2012, we had $109.5 million of total unrecognized compensation expense, net, of estimated forfeitures, that will be
recognized over a weighted-average period of 5.35 years.
Employee Stock Purchase Plan
Concurrent with the effectiveness of our registration statement on Form S-1 on June 28, 2010 (see Note 9), we established the ESPP.
Under the ESPP, employees are eligible to purchase common stock through payroll
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deductions of up to 15% of their eligible compensation, subject to any plan limitations. The purchase price of the shares on each purchase date is
equal to 85% of the lower of the fair market value of our common stock on the first and last trading days of each six-month offering period.
During the years ended December 31, 2012 and 2011, 373,526 shares and 223,458 shares were issued under the ESPP for $8.4 million and $3.9
million, respectively. A total of 2,615,749 shares of common stock have been reserved for issuance under the ESPP, and there were 2,018,765
shares available for issuance under the ESPP as of December 31, 2012.
11. Income Taxes
No provision for U.S. income taxes has been made due to cumulative losses since the commencement of operations.
A provision for income taxes of $0.1 million, $0.5 million and $0.2 million has been recognized for the years ended December 31, 2012,
2011 and 2010, respectively, related primarily to our subsidiaries located outside of the United States. Our net loss before provision for income
taxes for the years ended December 31, 2012, 2011 and 2010 were as follows (in thousands):
Year Ended December 31,
2011
2012
Domestic
International
Loss before income taxes
$396,653
(472)
$396,181
$254,761
(839)
$253,922
2010
$154,734
(579)
$154,155
The components of the provision for income taxes for the years ended December 31, 2012, 2011 and 2010, consisted of the following (in
thousands):
2012
Current:
Federal
State
Foreign
Total current
Deferred:
Federal
State
Foreign
Total deferred
Total provision for income taxes
$
—
23
282
305
—
—
(169)
(169)
$ 136
120
Year Ended December 31,
2011
$
—
29
437
466
—
—
23
23
$ 489
2010
$
—
9
177
186
—
—
(13)
(13)
$ 173
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Deferred tax assets (liabilities) as of December 31, 2012 and 2011 consisted of the following (in thousands):
Deferred tax assets:
Net operating loss carry-forwards
Research and development credits
Foreign tax credits
Deferred revenue
Inventory and warranty reserves
Depreciation and amortization
Accruals and others
Total deferred tax assets
Valuation allowance
Deferred tax liabilities:
Others
Depreciation and amortization
Net deferred tax assets (liabilities)
December 31,
December 31,
2012
2011
$ 346,663
21,427
120
694
8,088
72
10,933
387,997
(371,844)
$ 218,811
18,501
(400)
(15,588)
$
165
526
3,537
3,071
3,970
248,416
(248,384)
$
—
(37)
(5)
Reconciliation of statutory federal income taxes to our effective taxes for the years ended December 31, 2012, 2011 and 2010 is as follows
(in thousands):
2012
Tax at statutory federal rate
State tax—net of federal benefit
Nondeductible expenses
Foreign income rate differential
U.S. tax credits
Other reconciling items
Change in valuation allowance
Provision for income taxes
Year Ended December 31,
2011
$(134,702)
(12,580)
9,897
262
(2,785)
525
139,519
$
136
$(86,333)
(8,118)
10,742
(56)
(5,049)
1,589
87,714
$
489
2010
$(52,413)
(5,842)
9,310
254
(4,406)
736
52,534
$
173
Management believes that based on the available information, it is more likely than not that the deferred tax assets will not be realized,
such that a full valuation allowance is required against all U.S. deferred tax assets.
As of December 31, 2012, we had approximately $947.6 million of federal and $578.3 million of California operating loss carry-forwards
available to offset future taxable income, $32.3 million of which is associated with windfall tax benefits that will be recorded as additional paidin capital when realized. These carryforwards will expire in varying amounts beginning in 2024 for federal and 2019 for state if unused.
Additionally, we have research and development tax credits of approximately $10.9 million and $16.0 million for federal and state income tax
purposes, respectively. If not utilized, the federal carry-forwards will expire in various amounts beginning in 2019. However, the state credits
can be carried forward indefinitely.
We have indefinitely reinvested $2.3 million of undistributed earnings of our foreign operations outside of our U.S. tax jurisdiction as of
December 31, 2012. No deferred tax liability has been recognized for the remittance of such earnings to the United States since it is our intention
to utilize these earnings to fund future foreign expansions including but not limited to, hiring of additional personnel, capital purchases,
expansion into larger facilities, and potential new dealerships, and determination of the potential deferred tax liability is not practical.
Federal and state laws can impose substantial restrictions on the utilization of net operating loss and tax credit carry-forwards in the event
of an “ownership change,” as defined in Section 382 of the Internal Revenue
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Code. Prior to our IPO, we performed a study and had determined that no significant limitation would be placed on the utilization of our net
operating loss and tax credit carry-forwards as a result of prior ownership changes. We do not believe that our public offerings and private
placements constituted an ownership change resulting in limitations on our ability to use our net operating loss and tax credit carry-forwards;
however, we have not yet performed a study subsequent to our IPO to determine whether such limitations exist.
Uncertain Tax Positions
The aggregate changes in the balance of our gross unrecognized tax benefits during the years ended December 31, 2012, 2011 and 2010
were as follows (in thousands):
January 1, 2010
Increases in balances related to tax positions taken during current year
December 31, 2010
Increases in balances related to tax positions taken during current year
December 31, 2011
Increases in balances related to tax positions taken during current year
December 31, 2012
$15,596
797
16,393
1,037
17,430
640
$18,070
Accrued interest and penalties related to unrecognized tax benefits are classified as income tax expense and was immaterial. As of
December 31, 2012, unrecognized tax benefits of $18.1 million, if recognized, would not affect our effective tax rate as the tax benefits would
increase a deferred tax asset which is currently fully offset with a full valuation allowance. We do not anticipate that the amount of existing
unrecognized tax benefits will significantly increase or decrease within the next 12 months. We file income tax returns in the United States,
California, various states and foreign jurisdictions. Tax years 2009 to 2011 remain subject to examination for federal purposes, and tax years
2008 to 2011 remain subject to examination for California purposes. All net operating losses and tax credits generated to date are subject to
adjustment for U.S. federal and California purposes. Tax years 2007 to 2011 remain open for examination in other U.S. state and foreign
jurisdictions.
12. Information about Geographic Areas
We have determined that we operate in one reporting segment which is the design, development, manufacturing and sales of electric
vehicles and electric vehicle powertrain components.
The following tables set forth revenues and long-lived assets by geographic area (in thousands).
Revenues
North America
Europe
Asia
Total
2012
Year Ended December 31,
2011
2010
$355,325
50,318
7,613
$413,256
$109,233
84,397
10,612
$204,242
$ 41,866
70,542
4,336
$116,744
During the years ended December 31, 2012, 2011 and 2010, we recognized revenues of $341.5 million, $103.9 million and $37.6 million
in the United States, respectively.
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Long-lived Assets
December 31,
United States
International
Total
December 31,
2012
2011
$ 552,302
9,998
$ 562,300
$ 304,787
5,384
$ 310,171
13. Strategic Partnerships
Daimler AG
Daimler A-Class Program
During the three months ended March 31, 2010, Daimler engaged us to assist with the development and production of a battery pack and
charger for a pilot fleet of its A-Class electric vehicles to be introduced in Europe during 2011. As of December 31, 2010, all development work
related to the development agreement had been completed, and we had recognized the full $14.4 million under the development agreement.
Daimler Mercedes-Benz EV Program
During the fourth quarter of 2011, Daimler engaged us to assist with the development of a full electric powertrain for a Daimler MercedesBenz B-Class EV vehicle. In 2012, we received two purchase orders from Daimler to begin development work and also entered into a separate
development agreement. Pursuant to the development agreement, Daimler will pay us up to $33.2 million for the successful completion of
certain at risk development milestones and the delivery of prototype samples. During the year ended December 31, 2012, we completed various
milestones and delivered prototype samples. During the year ended December 31, 2012, we recognized $15.9 million in development services
revenue related to the Mercedes-Benz B-Class EV program.
Toyota Motor Corporation
Toyota RAV4 Program
In July 2010, we and Toyota entered into a Phase 0 agreement to initiate development of an electric powertrain for the Toyota RAV4.
Under this early phase development agreement, prototypes were made by us by combining the Toyota RAV4 model with a Tesla electric
powertrain. During the years ended December 31, 2011 and 2010, we recognized $7.6 million and $1.3 million in development services revenue,
respectively. As of December 31, 2011, we had delivered all prototypes.
In October 2010, we entered into a Phase 1 contract services agreement with Toyota for the development of a validated powertrain system,
including a battery pack, power electronics module, motor, gearbox and associated software to be integrated into an electric vehicle version of
the Toyota RAV4. Toyota paid $60.1 million for the successful completion of certain at risk development milestones and the delivery of
prototype samples, including a $5.0 million upfront payment that we received upon the execution of the agreement. During the years ended
December 31, 2012, 2011 and 2010, we completed various milestones and along with the amortization of our upfront payment and the delivery
of certain prototype samples, we recognized $10.7 million, $47.4 million and $3.3 million in development services revenue, respectively. As of
March 31, 2012, all development milestones under the Phase 1 agreement have been completed.
In July 2011, we entered into a supply and services agreement with Toyota for the supply of a validated electric powertrain system,
including a battery pack, charging system, inverter, motor, gearbox and associated software, which will be integrated into an electric vehicle
version of the Toyota RAV4. Additionally, we will provide Toyota with certain services related to the supply of the electric powertrain system.
During the three months ended March 31, 2012, we began delivering electric powertrain systems to Toyota. During the year ended
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December 31, 2012, we recognized revenue of $29.1 million in automotive sales related to these sales. Our production activities under this
program are expected to continue through 2014.
14. Commitments and Contingencies
Operating Leases
Our corporate headquarters and powertrain production operations are based in Palo Alto, California where we have leased a facility
consisting of 350,000 square feet. This lease expires in January 2020. We also lease office space under non-cancelable operating leases with
various expiration dates through December 2022. Rent expense for the years ended December 31, 2012, 2011 and 2010 was $12.1 million,
$8.6 million and $6.3 million, respectively.
Capital Leases
We have entered into various agreements to lease equipment under capital leases over terms between 36 and 60 months. The equipment
under the leases are collateral for the lease obligations and are included within property, plant and equipment, net, on the consolidated balance
sheets under the categories of computer equipment and software and office furniture and equipment.
Future minimum commitments for leases as of December 31, 2012 are as follows (in thousands):
Operating
Leases
2013
2014
2015
2016
2017 and thereafter
Total minimum lease payments
Less: Amounts representing interest not yet incurred
Present value of capital lease obligations
Less: Current portion
Long-term portion of capital lease obligations
$ 13,866
14,298
13,692
19,967
30,816
$ 92,639
Capital
Leases
5,646
5,199
3,566
923
30
15,364
1,034
14,330
4,365
$ 9,965
DOE Loan Facility
We have received loans under the DOE Loan Facility (see Note 8). Future loan repayments for these loans as of December 31, 2012 are as
follows (in thousands):
2013
2014
2015
2016
2017 and thereafter
Total loan repayments under the DOE Loan Facility
Less: Amounts representing interest not yet incurred
Principal amount of outstanding loans under the DOE Loan Facility
Less: Current portion
Long-term portion of loans under the DOE Loan Facility
$ 58,068
57,216
56,378
55,535
260,354
487,551
35,215
452,336
50,841
$401,495
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Environmental Liabilities
In May 2010, we entered into an agreement to purchase an existing automobile production facility located in Fremont, California from
New United Motor Manufacturing, Inc. (NUMMI). NUMMI has previously identified environmental conditions at the Fremont site which affect
soil and groundwater, and until recently, were undertaking efforts to address these conditions. These conditions are now being addressed by us
and NUMMI. Although we have been advised by NUMMI that it has documented and managed the environmental issues and we completed a
reasonable level of diligence on such environmental issues at the time we purchased the facility, we cannot determine the potential costs to
remediate any pre-existing contamination with any certainty. Based on management’s best estimate, we estimated the fair value of the
environmental liabilities that we assumed to be $5.3 million. The fair value of these liabilities was determined based on an expected value
analysis of the related potential costs to investigate, remediate and manage various environmental conditions that were identified as part of
NUMMI’s facility decommissioning activities as well as our own diligence efforts. As we continue with our construction and operating
activities, it is reasonably possible that our estimate of environmental liabilities may change materially.
We have reached an agreement with NUMMI under which, over a ten year period, we will pay the first $15.0 million of any costs of any
governmentally-required remediation activities for contamination that existed prior to the completion of the facility and land purchase for any
known or unknown environmental conditions, and NUMMI has agreed to pay the next $15.0 million for such remediation activities. Our
agreement provides, in part, that NUMMI will pay up to the first $15.0 million on our behalf if such expenses are incurred in the first four years
of our agreement, subject to our reimbursement of such costs on the fourth anniversary date of the closing.
On the ten-year anniversary of the closing or whenever $30.0 million has been spent on the remediation activities, whichever comes first,
NUMMI’s liability to us with respect to remediation activities ceases, and we are responsible for any and all environmental conditions at the
Fremont site. At that point in time, we have agreed to indemnify, defend, and hold harmless NUMMI from all liability and we have released
NUMMI for any known or unknown claims except for NUMMI’s obligations for representations and warranties under the agreement. As of
December 31, 2012 and 2011, we have accrued $5.3 million related to these environmental liabilities, respectively.
From time to time, we are subject to various legal proceedings that arise from the normal course of business activities. In addition, from
time to time, third parties may assert intellectual property infringement claims against us in the form of letters and other forms of
communication. If an unfavorable ruling were to occur, there exists the possibility of a material adverse impact on our results of operations,
prospects, cash flows, financial position and brand.
15. Subsequent Events
DOE Loan Facility
In February 2013, we made a pre-funding payment of $14.6 million for all principal and interest that will come due on June 15, 2013 into a
dedicated debt service reserve account in accordance with the pre-funding requirement under the DOE Loan Facility. We entered into an
amendment with the DOE effective March 1, 2013. We agreed among other things to: (i) modify certain future financial covenants;
(ii) accelerate the maturity date of the DOE Loan Facility to December 15, 2017; (iii) create an obligation to repay approximately 1.0% of the
outstanding principal under the DOE Loan Facility on or before June 15, 2013; and (iv) create additional contingent obligations based on excess
cash flow that may result in accelerated repayment of the DOE Loan Facility starting in 2015. The original amortization schedule for the DOE
Loan Facility is not affected by this recent amendment, and so the debt service payments remain the same until the new maturity date when all
outstanding loans under the DOE Loan Facility are to be repaid. Conforming administrative changes to documents related to this amendment are
in process and expected to be completed in March 2013.
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16. Quarterly Results of Operations (Unaudited)
The following table includes selected quarterly results of operations data for the years ended December 31, 2012 and 2011 (in thousands,
except per share data):
Three months ended
June 30
September 30
March 31
December 31
2012
Total revenues
Gross profit (loss)
Net loss
Net loss per share, basic and diluted
$ 30,167
10,210
(89,873)
(0.86)
$ 26,653
4,762
(105,603)
(1.00)
$
50,104
(8,761)
(110,804)
(1.05)
$ 306,332
23,857
(89,932)
(0.79)
2011
Total revenues
Gross profit
Net loss
Net loss per share, basic and diluted
$ 49,030
18,028
(48,941)
(0.51)
$ 58,171
18,508
(58,903)
(0.60)
$
57,666
17,224
(65,078)
(0.63)
$ 39,375
7,835
(81,488)
(0.78)
Net loss per share, basic and diluted for the four quarters of each fiscal year may not sum to the total for the fiscal year because of the
different numbers of shares outstanding during each period.
17. Restatement of Unaudited Condensed Consolidated Financial Statements
On March 6, 2013, we concluded that the condensed consolidated statements of cash flows for the year-to-date periods ended March 31,
2012, June 30, 2012 and September 30, 2012, including comparatively presented periods, that we previously included in our Quarterly Reports
on Forms 10-Q filed in 2012 should be restated as a result of erroneous inclusion in cash outflows from investing activities amounts related to
purchases of property and equipment not yet paid for at each balance sheet date.
These restatements result in decreases in cash flows used in investing activities and corresponding increases in cash flows used in
operating activities. These restatements had no impact on our previously reported total cash and cash equivalents, condensed consolidated
balance sheets or consolidated statements of operations.
As detailed in the tables below, these restatements impact the following condensed consolidated cash flow line items:
Three Months Ended
March 31, 2012
Six Months Ended
June 30, 2012
As
Previously
Cash Flows From Operating Activities
Accounts payable and accrued liabilities
Net cash used in operating activities
Cash Flows From Investing Activities
Purchases of property and equipment,
excluding capital leases
Net cash used in investing activities
Supplemental disclosure of noncash investing
activities
Acquisition of property and equipment
As
Previously
Reported
Adjustment
$
$
6,890
(50,087)
(67,987)
(79,440)
520
Nine Months Ended
September 30, 2012
(13,213)
(13,213)
As
Restated
$ (6,323)
(63,300)
13,213
13,213
(54,774)
(66,227)
27,747
28,267
126
As
Previously
Reported
Adjustment
$
$
22,847
(111,068)
(129,273)
(98,655)
2,106
As
Restated
(16,496)
(16,496)
$ 6,351
(127,564)
16,496
16,496
(112,777)
(82,159)
28,061
30,167
Reported
Adjustment
$
$
94,087
(206,020)
(197,745)
(168,743)
1,810
As
Restated
(22,570)
(22,570)
$ 71,517
(228,590)
22,570
22,570
(175,175)
(146,173)
34,430
36,240
Table of Contents
Three Months Ended
March 31, 2011
Six Months Ended
June 30, 2011
As
Previously
Cash Flows From Operating Activities
Accounts payable and accrued liabilities
Net cash used in operating activities
Cash Flows From Investing Activities
Purchases of property and equipment,
excluding capital leases
Net cash provided by (used in) investing
activities
Supplemental disclosure of noncash investing
activities
Acquisition of property and equipment
As
Previously
Reported
Adjustment
$
$
7,742
(43,297)
Nine Months Ended
September 30, 2011
(226)
(226)
As
Restated
$ 7,516
(43,523)
As
Previously
Reported
Adjustment
$
$
26,118
(65,785)
(720)
(720)
As
Restated
$ 25,398
(66,505)
Reported
Adjustment
$
$
37,999
(87,276)
As
Restated
(20,506)
(20,506)
$ 17,493
(107,782)
(20,476)
226
(20,250)
(74,790)
720
(74,070)
(143,634)
20,506
(123,128)
(170,675
10,111
226
10,337
(13,011)
720
(12,291)
(191,181)
20,506
)
2,372
13,661
16,033
7,306
127
5,203
12,509
568
24,490
25,058
Table of Contents
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
ITEM 9A.
CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
We conducted an evaluation as of December 31, 2012, under the supervision and with the participation of our management, including our
Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures.
Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of such date, our disclosure controls and
procedures were not effective due to a material weakness in our internal control over financial reporting related to the presentation and disclosure
of non-cash capital expenditures in our consolidated statements of cash flows as described below.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over
financial reporting is a process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial Officer to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles and includes those policies and procedures that (1) pertain to the maintenance of
records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets; (2) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles,
and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and (3) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a
material effect on the financial statements.
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer,
we conducted an evaluation of the effectiveness of our internal control over financial reporting based on criteria established in “Internal
Control—Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Our
management concluded that our internal control over financial reporting was ineffective as of December 31, 2012 because a material weakness
existed in our internal control over financial reporting related to the presentation and disclosure of non-cash capital expenditures in our
consolidated statements of cash flows. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial
reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be
prevented or detected on a timely basis. Specifically, we did not design effective controls to determine and review the total unpaid amounts
related to capital expenditures that should have been excluded from operating and investing activities in the cash flow statement and disclosed as
non-cash items.
This material weakness resulted in an audit adjustment related to non-cash capital expenditures for the year ended December 31, 2012, a
restatement of our condensed consolidated statements of cash flows for the periods ended March 31, 2012, June 30, 2012 and September 30,
2012 including their comparative periods for 2011, and a revision of our consolidated financial statements for the year ended December 31,
2011. Additionally, this material weakness could result in a further misstatement of the aforementioned account balances or disclosures that
would result in a material misstatement to the annual or interim consolidated financial statements that would not be prevented or detected.
Our independent registered public accounting firm, PricewaterhouseCoopers LLP, has audited our internal control over financial reporting
as of December 31, 2012 as stated in their report which is included herein.
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Limitations on the Effectiveness of Controls
Because of inherent limitations, internal control over financial reporting may not prevent or detect misstatements and projections of any
evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that
the degree of compliance with the policies or procedures may deteriorate.
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting which occurred during the fourth fiscal quarter of the year ended
December 31, 2012 which has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
Management’s Remediation Initiatives
Subsequent to the end of the period of this report, and in light of the material weakness described above, we have taken steps to remediate
our material weakness. We have begun to include as part of our financial reporting review process, the determination of total unpaid amounts
related to capital expenditures that should be excluded from investing activities in the consolidated statement of cash flows and disclosed as noncash items.
ITEM 9B.
OTHER INFORMATION
Not applicable.
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PART III
ITEM 10.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information required by this Item 10 of Form 10-K will be included in our 2013 Proxy Statement to be filed with the SEC in
connection with the solicitation of proxies for our 2013 Annual Meeting of Stockholders (2013 Proxy Statement) and is incorporated herein by
reference. The 2013 Proxy Statement will be filed with the SEC within 120 days after the end of the fiscal year to which this report relates.
ITEM 11.
EXECUTIVE COMPENSATION
The information required by this Item 11 of Form 10-K will be included in our 2013 Proxy Statement and is incorporated herein by
reference.
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
The information required by this Item 12 of Form 10-K will be included in our 2013 Proxy Statement and is incorporated herein by
reference.
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
The information required by this Item 13 of Form 10-K will be included in our 2013 Proxy Statement and is incorporated herein by
reference.
ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The information required by this Item 14 of Form 10-K will be included in our 2013 Proxy Statement and is incorporated herein by
reference.
PART IV
ITEM 15.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
1.
Financial Statements. See “Index to Consolidated Financial Statements” in Part II, Item 8 of this Annual Report on Form 10-K.
2.
All financial statement schedules have been omitted, since the required information is not applicable or is not present in amounts sufficient
to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes
thereto.
3.
Exhibits. The exhibits listed in the accompanying “Index to Exhibits” are filed or incorporated by reference as part of this Annual Report
on Form 10-K.
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Table of Contents
INDEX TO EXHIBITS
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
3.1
Amended and Restated Certificate of Incorporation of
the Registrant
S-1
333-164593
3.1
January 29, 2010
3.2
Amended and Restated Bylaws of the Registrant
S-1
333-164593
3.2
January 29, 2010
4.1
Specimen common stock certificate of the Registrant
S-1/A
333-164593
4.1
May 27, 2010
4.2
Fifth Amended and Restated Investors’ Rights
Agreement, dated as of August 31, 2009, between
Registrant and certain holders of the Registrant’s
capital stock named therein
S-1
333-164593
4.2
January 29, 2010
4.2A
Amendment to Fifth Amended and Restated Investors’ S-1/A
Rights Agreement, dated as of May 20, 2010, between
Registrant and certain holders of the Registrant’s
capital stock named therein
333-164593
4.2A
May 27, 2010
4.2B
Amendment to Fifth Amended and Restated Investors’ S-1/A
Rights Agreement between Registrant, Toyota Motor
Corporation and certain holders of the Registrant’s
capital stock named therein
333-164593
4.2B
May 27, 2010
4.2C
Amendment to Fifth Amended and Restated Investor’s S-1/A
Rights Agreement, dated as of June 14, 2010, between
Registrant and certain holders of the Registrant’s
capital stock named therein
333-164593
4.2C
June 15, 2010
4.2D
Amendment to Fifth Amended and Restated Investor’s 8-K
Rights Agreement, dated as of November 2, 2010,
between Registrant and certain holders of the
Registrant’s capital stock named therein
001-34756
4.1
November 4, 2010
4.3
Registration Rights Agreement between the United
States Department of Energy and the Registrant dated
as of January 20, 2010
S-1/A
333-164593
4.3
May 27, 2010
4.3A
Amendment to Registration Rights Agreement
between the United States Department of Energy and
the Registrant dated as of May 21, 2010
S-1/A
333-164593
4.3A
May 27, 2010
131
Filed
Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
4.4
Warrant to Purchase Shares of Preferred Stock issued
by the Registrant to the United States Department of
Energy dated January 20, 2010
S-1/A
333-164593
4.4
May 27, 2010
4.5
Warrant to Purchase Shares of Common Stock issued
by the Registrant to the United States Department of
Energy dated May 21, 2010
S-1/A
333-164593
4.5
May 27, 2010
4.6
Fifth Amendment to Fifth Amended and Restated
Investors’ Rights Agreement, dated as of May 30,
2011, between Registrant and certain holders of the
Registrant’s capital stock named therein
8-K
001-34756
4.1
June 1, 2011
4.7
Fifth Amendment to Fifth Amended and Restated
Investors’ Rights Agreement, dated as of May 25,
2011, between Registrant and certain holders of the
Registrant’s capital stock named therein
S-1/A
333-174466
4.2E
June 2, 2011
10.1
Form of Indemnification Agreement between the
Registrant and its directors and officers
S-1/A
333-164593
10.1
June 15, 2010
10.2
2003 Equity Incentive Plan
S-1/A
333-164593
10.2
May 27, 2010
10.3
Form of Stock Option Agreement under 2003 Equity
Incentive Plan
S-1
333-164593
10.3
January 29, 2010
10.3A
Grant Notice and Stock Option Agreement between
the Registrant and Elon Musk
S-1/A
333-164593
10.3A
March 29, 2010
10.4
2010 Equity Incentive Plan
S-1/A
333-164593
10.4
May 27, 2010
10.5
Form of Stock Option Agreement under 2010 Equity
Incentive Plan
S-1/A
333-164593
10.5
March 29, 2010
10.6
Form of Restricted Stock Unit Award Agreement
under 2010 Equity Incentive Plan
S-1/A
333-164593
10.6
March 29, 2010
10.7
2010 Employee Stock Purchase Plan
S-1/A
333-164593
10.7
May 27, 2010
10.8
Form of Purchase Agreement under 2010 Employee
Stock Purchase Plan
S-1/A
333-164593
10.8
June 15, 2010
132
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Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
10.9
Offer Letter between the Registrant and Elon Musk
dated October 13, 2008
S-1
333-164593
10.9
January 29, 2010
10.10
Offer Letter between the Registrant and Deepak Ahuja
dated June 13, 2008, and amended June 4, 2009
S-1
333-164593
10.10
January 29, 2010
10.11
Relocation Agreement between the Registrant and
S-1
Deepak Ahuja effective October 31, 2008 and amended
June 4, 2009
333-164593
10.11
January 29, 2010
10.12
Offer Letter between the Registrant and Jeffrey B.
Straubel dated May 6, 2004
S-1
333-164593
10.12
January 29, 2010
10.13
Offer Letter between the Registrant and Michael F.
Donoughe dated June 4, 2008, and amended December
10, 2008
S-1
333-164593
10.13
January 29, 2010
10.14
Offer Letter between the Registrant and John Walker
dated August 17, 2009
S-1
333-164593
10.14
January 29, 2010
10.15
Relocation Agreement between the Registrant and John S-1
Walker dated January 26, 2010
333-164593
10.15
January 29, 2010
10.16
Offer Letter between the Registrant and Jon Sobel dated S-1
August 30, 2009
333-164593
10.16
January 29, 2010
10.17
Offer Letter between the Registrant and Gilbert Passin
dated January 1, 2010
S-1
333-164593
10.17
January 29, 2010
10.18
Commercial Single-Tenant Lease between the
Registrant and Russell A. and Deborah B. Margiotta,
Trustees of the Margiotta Family Trust UTA May 26,
1981 dated June 7, 2005
S-1
333-164593
10.18
January 29, 2010
10.19
Commercial Single-Tenant Lease between the
Registrant and James R. Hull dated August 16, 2006
S-1
333-164593
10.19
January 29, 2010
10.20
Commercial Lease between the Registrant and The
S-1
Board of Trustees of The Leland Stanford Jr. University
dated July 25, 2007
333-164593
10.20
January 29, 2010
10.21
License Agreement between the Registrant and MS
Kearny Northrop Avenue, LLC dated July 23, 2009
333-164593
10.21
January 29, 2010
S-1
133
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Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
10.22
Commercial Lease between the Registrant and The
Board of Trustees of The Leland Stanford
Jr. University dated August 6, 2009
S-1
333-164593
10.22
January 29, 2010
10.23†
Supply Agreement for Products and Services
between Lotus Cars Limited and the Registrant
dated July 11, 2005
S-1
333-164593
10.23
January 29, 2010
10.23A†
Amendment No. 1 to Supply Agreement between
Lotus Cars Limited and the Registrant dated
August 4, 2009
S-1
333-164593
10.23A
January 29, 2010
10.23B†
Amendment No. 2 to Supply Agreement between
S-1/A
Lotus Cars Limited and the Registrant dated March
22, 2010
333-164593
10.23B
March 29, 2010
10.24†
Supply Agreement between Eberspacher (UK) Ltd. S-1/A
and the Registrant dated September 1, 2006
333-164593
10.24
March 29, 2010
10.25†
Supply Agreement between Perei Group (UK) Ltd.
and the Registrant dated September 1, 2006
S-1/A
333-164593
10.25
March 29, 2010
10.26†
Supply Agreement between Burgaflex (UK) Ltd.
and the Registrant dated September 1, 2006
S-1/A
333-164593
10.26
March 29, 2010
10.27†
Supply Agreement by and among Sanyo Electric
Co. Ltd. Mobile Energy Company, Sanyo Energy
(USA) Corporation and the Registrant dated
February 1, 2007
S-1
333-164593
10.27
January 29, 2010
10.27A†
Amendment No. 1 to Supply Agreement by and
among Sanyo Electric Co. Ltd. Mobile Energy
Company and Sanyo Energy (USA) Corporation
and the Registrant effective as of February 1, 2007
S-1
333-164593
10.27A
January 29, 2010
10.28†
Supply Agreement by and between Taiway Ltd. and S-1
the Registrant dated February 12, 2007
333-164593
10.28
March 29, 2010
134
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Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
10.29†
Supply Agreement between Chroma ATE Inc. and
the Registrant dated April 19, 2007
S-1/A
333-164593
10.29
March 29, 2010
10.30†
Supply Agreement between Polytec Holden Ltd.
and the Registrant dated April 13, 2007
S-1/A
333-164593
10.30
March 29, 2010
10.31†
Modification to Terms and Conditions between
BorgWarner TorqTransfer Systems Inc. and the
Registrant dated September 22, 2008
S-1
333-164593
10.31
January 29, 2010
10.32†
ZEV Credits Agreement between American Honda
Motor Co., Inc. and the Registrant dated
February 12, 2009
S-1/A
333-164593
10.32
May 27, 2010
10.32A
Addendum to ZEV Credits Agreement between
S-1/A
American Honda Motor Co., Inc. and the Registrant
dated February 20, 2009
333-164593
10.32A
May 27, 2010
10.32B†
Supplemental ZEV Credits Agreement between
S-1/A
American Honda Motor Co., Inc. and the Registrant
dated March 20, 2009
333-164593
10.32B
May 27, 2010
10.32C†
Second Supplemental ZEV Credits Agreement
between American Honda Motor Co., Inc. and the
Registrant dated February 8, 2010
333-164593
10.32C
May 27, 2010
10.33†
Supply Agreement by and among Panasonic
S-1
Industrial Company, Panasonic Corporation, acting
through Energy Company, and the Registrant dated
July 21, 2009
333-164593
10.33
January 29, 2010
10.34†
Exclusivity and Intellectual Property Agreement
between Daimler North America Corporation and
the Registrant dated May 11, 2009
S-1/A
333-164593
10.34
March 29, 2010
10.35
Side Agreement between the Registrant and
Blackstar InvestCo LLC dated May 11, 2009
S-1
333-164593
10.35
January 29, 2010
10.36
Letter Agreement between the Elon Musk
Revocable Trust dated July 22, 2003 and Blackstar
InvestCo LLC, dated May 11, 2009
S-1
333-164593
10.36
January 29, 2010
S-1/A
135
Filed
Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filed
Herewith
Filing Date
10.37
Loan Arrangement and Reimbursement Agreement
S-1/A
between the United States Department of Energy and
the Registrant dated as of January 20, 2010
333-164593
10.37
May 27, 2010
10.37A
First Amendment to Loan Arrangement and
10-K
Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of June 15, 2011
001-34756
10.37A
February 27, 2012
10.37B
Limited Waiver to the Loan Arrangement and
10-K
Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of February 22, 2012
001-34756
10.37B
February 27, 2012
10.37C
Second Amendment to the Loan Arrangement and
10-Q
Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of June 20, 2012
001-34756
10.2
August 2, 2012
10.37D
Third Amendment to the Loan Arrangement and
Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of December 20, 2012
10.37E
Second Limited Waiver to the Loan Arrangement
8-K
and Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of September 24, 2012
10.37F
Fourth Amendment to the Loan Arrangement and
Reimbursement Agreement between the United
States Department of Energy and the Registrant dated
as of March 1, 2013
10.38
Note Purchase Agreement by and among the Federal S-1/A
Financing Bank, the Registrant and the Secretary of
Energy dated as of January 20, 2010
X
001-34756
10.1
September 25, 2012
X
136
333-164593
10.38
May 27, 2010
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filing Date
10.39
Future Advance Promissory Note made by the
Registrant in favor of the Federal Financing Bank
dated as of January 20, 2010
S-1/A
333-164593
10.39
May 27, 2010
10.40
Future Advance Promissory Note made by the
Registrant in favor of the Federal Financing Bank
dated as of January 20, 2010
S-1/A
333-164593
10.40
May 27, 2010
10.41
Pledge and Security Agreement made by the
Registrant and the Grantors party thereto in favor of
Midland Loan Services, Inc. dated as of January 20,
2010
S-1/A
333-164593
10.41
May 27, 2010
10.42
Guarantee made by the Guarantors party thereto in
S-1/A
favor of the United States Department of Energy, the
Federal Financing Bank and the holders of the notes
described therein dated as of January 20, 2010
333-164593
10.42
May 27, 2010
10.43†
Development Contract between Daimler AG and
Tesla Motors Ltd. dated May 10, 2010
S-1/A
333-164593
10.43
May 27, 2010
10.44
Settlement Agreement between the Registrant and
entities affiliated with Valor Equity Partners dated
May 20, 2010
S-1/A
333-164593
10.44
May 27, 2010
10.45
Letter Agreement between the Registrant and New
United Motor Manufacturing, Inc. dated May 26,
2010
S-1/A
333-164593
10.45
May 27, 2010
10.45A
Amendment No. 1 to the Letter Agreement between
the Registrant and New United Motor
Manufacturing, Inc. dated June 15, 2010
10-Q
001-34756
10.3
November 12, 2010
10.45B
Amendment No. 2 to the Letter Agreement between
the Registrant and New United Motor
Manufacturing, Inc. dated October 1, 2010
10-Q
001-34756
10.4
November 12, 2010
10.45C
Amendment No. 3 to the Letter Agreement between
the Registrant and New United Motor
Manufacturing, Inc. dated October 8, 2010
10-Q
001-34756
10.5
November 12, 2010
137
Filed
Herewith
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
10.45D
Amendment No. 4 to the Letter Agreement between 10-Q
the Registrant and New United Motor
Manufacturing, Inc. dated October 13, 2010
001-34756
10.6
November 12, 2010
10.45E
Amendment No. 5 to the Letter Agreement between 10-Q
the Registrant and New United Motor
Manufacturing, Inc. dated October 15, 2010
001-34756
10.7
November 12, 2010
10.45F†
Amendment No. 6 to the Letter Agreement between 10-Q
the Registrant and New United Motor
Manufacturing, Inc. dated October 19, 2010
001-34756
10.8
November 12, 2010
10.46
Sale and Purchase Agreement between Registrant
and New United Motor Manufacturing, Inc., dated
August 13, 2010
10-Q
001-34756
10.1
November 12, 2010
10.46A
Addendum No. 1to the Sale and Purchase
Agreement between Registrant and New United
Motor Manufacturing, Inc., dated September 23,
2010
10-Q
001-34756
10.2
November 12, 2010
10.47†
Phase 1 Contract Services Agreement between
Registrant and Toyota Motor Corporation dated
October 6, 2010
10-K
001-34756
10.47
March 3, 2011
10.48†
Amendment No.3 to Supply Agreement between
Lotus Cars Limited and the Registrant dated June
13, 2011
10-Q
001-34756
10.1
August 12, 2011
10.49†
Supply and Services Agreement between Toyota
Motor Engineering & Manufacturing North
America, Inc. and the Registrant dated July 15,
2011
10-Q
001-34756
10.1
November 14, 2011
10.50†
Supply Agreement between Panasonic Corporation
and the Registrant dated October 5, 2011
10-K
-001-34756
10.50
February 27, 2012
23.1
Consent of PricewaterhouseCoopers, Independent
Registered Public Accounting Firm
—
—
—
—
138
Filed
Herewith
Filing Date
X
Table of Contents
Exhibit
Number
Exhibit Description
Form
File No.
Incorporated by Reference
Exhibit
Filed
Herewith
Filing Date
31.1
Rule 13a-14(a) / 15(d)-14(a) Certification of Principal —
Executive Officer
—
—
—
X
31.2
Rule 13a-14(a) / 15(d)-14(a) Certification of Principal —
Financial Officer
—
—
—
X
32.1*
Section 1350 Certifications
—
—
—
—
101.INS** XBRL Instance Document
101.SCH** XBRL Taxonomy Extension Schema Document
101.CAL** XBRL Taxonomy Extension Calculation Linkbase
Document.
101.DEF** XBRL Taxonomy Extension Definition Linkbase
Document
101.LAB** XBRL Taxonomy Extension Label Linkbase
Document
101.PRE** XBRL Taxonomy Extension Presentation Linkbase
Document
* Furnished herewith
** XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statement or prospectus
for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Securities Exchange
Act of 1934, and otherwise is not subject to liability under these sections.
† Confidential treatment has been requested for portions of this exhibit
139
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Tesla Motors, Inc.
Date: March 7, 2013
/s/ Elon Musk
Elon Musk
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
Title
Signature
Date
/s/ Elon Musk
Elon Musk
Chief Executive Officer and Director (Principal
Executive Officer)
March 7, 2013
/s/ Deepak Ahuja
Deepak Ahuja
Chief Financial Officer (Principal Financial
Officer and Principal Accounting Officer)
March 7, 2013
/s/ Brad Buss
Brad Buss
Director
March 7, 2013
/s/ Ira Ehrenpreis
Ira Ehrenpreis
Director
March 7, 2013
/s/ Antonio Gracias
Antonio Gracias
Director
March 7, 2013
/s/ Stephen Jurvetson
Stephen Jurvetson
Director
March 7, 2013
/s/ Harald Kroeger
Harald Kroeger
Director
March 7, 2013
/s/ Kimbal Musk
Kimbal Musk
Director
March 7, 2013
140
Exhibit 10.37D
THIRD AMENDMENT TO THE
LOAN ARRANGEMENT AND REIMBURSEMENT AGREEMENT
THIRD AMENDMENT, dated as of December 20, 2012 (this “ Amendment ”), to the Loan Arrangement and Reimbursement Agreement,
dated as of January 20, 2010 (as amended by the First Amendment to the Loan Arrangement and Reimbursement Agreement dated as of
June 15, 2011, the Limited Waiver dated as of February 22, 2012, the Second Amendment to the Loan Arrangement and Reimbursement
Agreement dated as of June 20, 2012, the Second Limited Waiver to the Loan Arrangement and Reimbursement Agreement dated as of
September 24, 2012 and as further amended, supplemented or otherwise modified from time to time prior to the date hereof, the “ Arrangement
Agreement ”), between Tesla Motors, Inc. (the “ Borrower ”) and the United States Department of Energy (“ DOE ”). Unless otherwise defined
herein, terms defined in the Arrangement Agreement and used herein shall have the meanings given to them in the Arrangement Agreement.
WHEREAS, the Borrower has requested that DOE agree to certain amendments to the Arrangement Agreement in connection with the
proposed Daimler Guaranty (as defined below), and DOE is willing to agree to such amendments on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments . Effective as of the Amendment Effective Date (as defined below), the Arrangement Agreement is hereby
amended as follows:
(a) A new Section 8.2(e) to the Arrangement Agreement is hereby added which shall read as follows:
“(e)(i) Within five (5) Business Days of the receipt by the Borrower of confirmation from Daimler AG of the completion of a
“milestone” as contemplated under Section 4.3 (or any successor provision) of the Daimler Development Agreement, a copy of such
confirmation from Daimler AG; and (ii) on each Quarterly Reporting Date, beginning in February 2013, a cumulative report describing
each such completed milestone in reasonable detail and including an update on amounts paid by or invoiced to Daimler AG with respect
thereto.”
(b) Section 9.4(f) of the Arrangement Agreement is hereby amended in its entirety to read as follows:
“(f)(i) Investments in any Foreign Subsidiaries, whether or not a Guarantor, made during any fiscal year commencing 2010 in an
aggregate amount (including any loans thereto or guarantees of the obligations thereof) for such
fiscal year not to exceed $15,000,000 (excluding any Investments contemplated by clause (ii) of this Section 9.4(f)), and (ii) so long as the
Intercompany Service Agreement shall have been fully executed and delivered (with a copy thereof delivered to DOE together with an
original executed acknowledgement of collateral assignment to DOE in the form attached thereto) and remains in full force and effect,
(x) the Daimler Guaranty and (y) capital contributions and/or intercompany advances made by the Borrower to Tesla Motors Ltd. in an
aggregate amount not to exceed $1,000,000 to the extent reasonably necessary to allow Tesla Motors Ltd. to perform its obligations under
the Daimler Development Agreement (other than those obligations in respect of the Supply Agreement referred to therein); provided that
any intercompany billings between the Borrower and Tesla Motors Ltd. made in the ordinary course of business in connection with such
obligations and which do not remain outstanding for more than 90 days shall not be included in the calculation of such $1,000,000 limit;”
(c) A new Section 9.16(e) to the Arrangement Agreement is hereby added which shall read as follows:
“or (e) agree to any amendment, modification, supplement or waiver of the Daimler Development Agreement, the Daimler Guaranty
or the Intercompany Service Agreement, in each case in a manner that is materially adverse to the interests of the Lender Parties without
the consent of DOE in its sole discretion.”
(d) Annex A to the Arrangement Agreement is hereby amended to add the following definitions in their proper alphabetical order:
“Daimler Development Agreement” means that certain Development Agreement for “Project Newton” to be entered into between
Tesla Motors Ltd. and Daimler AG in substantially the form of the draft thereof dated 17 December 2012 and provided to DOE, with such
changes as are not materially adverse to the interests of the Lender Parties or as may otherwise be agreed by DOE in its sole discretion.
“Daimler Guaranty” means that certain guaranty by the Borrower of the obligations of Tesla Motors Ltd. under the Daimler
Development Agreement (other than those obligations in respect of the Supply Agreement referred to therein) in substantially the form of
Exhibit A to the Third Amendment to this Agreement, with such changes as are not materially adverse to the interests of the Lender Parties
or as may otherwise be agreed by DOE in its sole discretion.
““ Intercompany Service Agreement ” means that certain Service Agreement dated as of August 1, 2009 entered into between Tesla
Motors Ltd. and the Borrower, as amended by Amendment No. 1 to Service Agreement dated January 1, 2011 and Amendment No. 2 to
Service Agreement dated on or about the date of the Third Amendment to this Agreement, as it relates to the Daimler Development
Agreement, in substantially the form of Exhibit B to the Third Amendment to this Agreement, with such amendments from time to time as
are not materially adverse to the interests of the Lender Parties or as may otherwise be agreed by DOE in its sole discretion.”
2
SECTION 2. Representations and Warranties . Each of the Obligors hereby represents and warrants to DOE that:
(a) As of the Amendment Effective Date, no Default or Event of Default has occurred and is continuing.
(b) Each of the representations and warranties made by any Obligor in or pursuant to the Transaction Documents (other than the
representations and warranties contained in Article 8 of the Note Purchase Agreement) is true and correct in all material respects on and as of the
Amendment Effective Date as if made on and as of the Amendment Effective Date (except to the extent such representations and warranties
relate to an earlier date, in which case, such representations and warranties were true and correct in all material respects as of such earlier date).
(c) Each Obligor has all requisite power and authority to execute, deliver, perform and observe its obligations under this Amendment and
has duly executed and delivered this Amendment. No board, stockholder or other corporate approvals of any Obligor are required for this
Amendment.
SECTION 3. Effectiveness of this Amendment . This Amendment shall become effective on the date (the “ Amendment Effective Date ”)
when DOE (i) shall have received duly executed counterparts hereof that bear the signatures of Borrower and any other Obligor appearing on the
signature page hereof (it being agreed that the receipt of duly executed counterparts delivered by facsimile or electronic transmission in
Electronic Format shall be sufficient to satisfy the requirements of this clause (i)), and (ii) shall have executed this Amendment.
SECTION 4. Effect of Amendment .
(a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or
otherwise affect the rights and remedies of DOE under the Arrangement Agreement or any other Loan Document and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Arrangement Agreement or any
other provision of the Arrangement Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower or any other Obligor to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Arrangement
Agreement or any other Loan Document in similar or different circumstances.
(b) On and after the Amendment Effective Date, each reference in the Arrangement Agreement to “this Agreement”, “hereunder”,
“hereof’, “herein”, or words of like import, and each reference to the “Arrangement Agreement” in any other Loan
3
Document shall be deemed a reference to the Arrangement Agreement as modified hereby. This Amendment shall be deemed an amendment to
the Arrangement Agreement pursuant to Section 12.1 of the Arrangement Agreement and constitute a “Loan Document” for all purposes of the
Arrangement Agreement and the other Loan Documents.
SECTION 5. Consent and Reaffirmation . (a) Each Guarantor hereby consents to this Amendment and the transactions contemplated
hereby, (b) each of Borrower and the Guarantors agrees that, notwithstanding the effectiveness of this Amendment, the Guarantee, the Security
Agreement and each of the other Loan Documents continue to be in full force and effect, (c) each Guarantor confirms its guarantee of the
Guaranteed Obligations (as defined in the Guarantee and which definition, for clarity, incorporates by reference all Note P Obligations and all
Note S Obligations under the Arrangement Agreement as modified hereby), and each of Borrower and the Guarantors confirms its grant of a
security interest in its assets as Collateral for the Secured Obligations, all as provided in the Loan Documents, and (d) each of Borrower and the
Guarantors acknowledges that such guarantee and/or grant continues in full force and effect in respect of, and to secure, the Secured Obligations.
SECTION 6. Governing Law . THIS AMENDMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER,
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW AND NOT THE
LAW OF ANY STATE OR LOCALITY. TO THE EXTENT THAT A COURT LOOKS TO THE LAWS OF ANY STATE TO DETERMINE
OR DEFINE THE FEDERAL LAW, IT IS THE INTENTION OF THE PARTIES HERETO THAT SUCH COURT SHALL LOOK ONLY TO
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE RULES OF CONFLICTS OF LAWS.
SECTION 7. Counterparts . This Amendment may be executed in counterparts of the parties hereof, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the same instrument. The parties may deliver such counterparts by
facsimile or electronic transmission in Electronic Format. Each party hereto agrees to deliver a manually executed original promptly following
such facsimile or electronic transmission.
SECTION 8. Headings . Paragraph headings have been inserted in this Amendment as a matter of convenience for reference only and it is
agreed that such paragraph headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this
Amendment.
[ Remainder of page intentionally blank ]
4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above mentioned.
UNITED STATES DEPARTMENT OF ENERGY
By: /s/ Frances Nwachuku
Name: Frances Nwachuku
Title: Director, Portfolio Management Division
[Signature Page to Third Amendment]
TESLA MOTORS, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS NEW YORK LLC
By: Tesla Motors, Inc., its sole member
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS LEASING, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS MA, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
TESLA MOTORS PA, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
TESLA MOTORS TX, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
NORTHERN NEVADA RESEARCH CO., LLC
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
[Signature Page to Third Amendment]
EXHIBIT A
Form of Daimler Guaranty
[Date]
Daimler AG
Mercedesstraße 137
70327 Stuttgart
Deutschland
Attention:
Mr. Klaus-Peter Borsch
Mr. Jürgen Schenk
Gentlemen:
We refer to the agreement regarding Project Newton (as defined therein) between Daimler AG (hereinafter “Daimler”) and our subsidiary Tesla
Motors Limited (hereinafter “Tesla UK”) which was signed on May 8th, 2012.
In the course of said Project Newton, the necessary development agreement (hereinafter “Development Agreement”) is planned to be agreed
between Daimler and our subsidiary Tesla UK.
Tesla UK is a directly owned 100% subsidiary of our company and therefore, we have a strong interest in the conclusion of the intended
Development Agreement within Project Newton as our company will strongly benefit from this new business.
We understand that you seek certain assurances from us with respect to the contractual obligations and other obligations of Tesla UK in respect
of the Development Agreement, subject to the relevant terms and conditions of the Development Agreement (the “Obligations”).
In light of the benefits mentioned above for our company and in consideration of Daimler entering into the Development Agreement with Tesla
UK, we, Tesla Motors Inc., Deer Creek Road, Palo Alto, CA, USA (hereinafter “Guarantor”) hereby unconditionally and irrevocably guarantee
as follows:
1.
The Guarantor hereby guarantees the full and complete performance of the Obligations of Tesla UK.
2.
The Guarantor hereby agrees with Daimler and covenants to Daimler that in the event of a default, which is not promptly remediated in
accordance with the Obligations, by Tesla UK in the performance of the Obligations when due, the Guarantor shall cause the performance
of such Obligations by Tesla UK. Upon the occurrence of a default and Guarantor being notified of the same, the Guarantor herewith
assumes the obligation to procure that Tesla UK or its legal successor is and will in future be able to fulfill all of its Obligations out of and
in connection with Project Newton towards Daimler from time to time and at any time. In particular, the Guarantor undertakes to take all
steps within its control as a shareholder or in any other capacity to cause Tesla UK to comply with any and all Obligations, including,
without limitation, by exercising all voting and other rights and powers vested in or available to the Guarantor in respect of Tesla UK.
TESLA MOTORS, INC
3500 Deer Creek Rd, Palo Alto, CA 94304
p 650.681.5000
f 650.681.5200
Pg. 2
3.
With respect to the Development Agreement, the Guarantor covenants that Tesla UK’s ability to meet its Obligations in due time will not
be hindered by lack of capital or liquidity.
4.
By way of debt acknowledgment (“abstraktes Schuldversprechen” pursuant to sec. 780 German Civil Code), the Guarantor undertakes the
liability for any damages incurred and caused by Tesla UK’s failure to comply with its Obligations, that Tesla UK would be responsible for
under the Agreements, and, irrespective of whether Daimler has claimed any damages from Tesla UK before or has taken any legal action
against Tesla UK.
5.
In the event that the Guarantor breaches this guarantee, the Guarantor hereby agrees to pay to Daimler such actual damages incurred by
Daimler, to which Daimler would be entitled under the Development Agreement with regard to Tesla UK.
6.
The Guarantor undertakes to defend, hold harmless, and indemnify Daimler against any and all claims whatsoever, liabilities, loss,
damage, costs, fees or expenses (including reasonable attorneys’ fees and court costs) which Daimler may incur, suffer or be put to arising
out of any act, negligence, or omission or default by Tesla UK, but only to the extent that Tesla UK would be so obligated pursuant to the
Obligations.
7.
The obligations of the Guarantor hereunder are (i) the primary obligations of the Guarantor, (ii) an absolute, unconditional, continuing and
irrevocable guarantee of the Obligations of the Guarantor hereunder and not of collectability, and (iii) in no way conditioned on or
contingent upon any attempt to enforce in whole or in part Tesla UK’s or any other person or entity’s liabilities and obligations to Daimler.
For the avoidance of doubt, Daimler is not obliged to claim any damages from or to take any legal action against Tesla UK before claiming
payment from or taking legal action against the Guarantor.
8.
The Guarantor hereby unconditionally: (i) waives notice of acceptance hereof, of any action taken or omitted in reliance hereon and of any
defaults by Tesla UK in the payment or performance of the Obligations, diligence, protest, presentment, filing of claims with a court in the
event of the bankruptcy of Tesla UK, any right to require a proceeding first against Tesla UK or that Tesla UK or the Guarantor be joined
in any proceeding, or any notice of default with respect to the Obligations, or any other act or omission or thing or delay to do any other act
or thing which might in any manner or to any extent vary the risk of the Guarantor or which might otherwise operate as a discharge of the
Guarantor; (ii) waives any defense or objection to Daimler’s claims against the Guarantor on the ground that Daimler does not claim or has
not claimed beforehand any damages from Tesla UK; and (iii) waives any defenses available to a surety under law and all other legally
waivable notices, defenses and other benefits to which the Guarantor might otherwise be entitled in its position as a guarantor, but does not
apply to contractual defenses of Tesla UK under the Development Agreement.
9.
Neither the obligations of the Guarantor contained in this guarantee nor the rights, powers, and remedies conferred upon Daimler by this
guarantee or by law shall be discharged, impaired, or otherwise affected by:
Pg. 3
(a)
the dissolution of Tesla UK;
(b)
the commencement of any voluntary or involuntary case, administration, or other proceedings seeking liquidation, reorganization,
dissolution or winding-up, or other relief under any bankruptcy, insolvency, reorganization, liquidation, moratorium, winding-up,
composition or readjustment of debts, or other similar law in respect of the Guarantor or Tesla UK;
(c)
any neglect by Daimler in enforcing any right of action or remedy afforded under the Agreements, unless barred by the applicable
statute of limitations;
(d)
the termination of any of the Development Agreement, to the extent the Obligations survived such termination;
(e)
any act or omission of Tesla UK pursuant to any other arrangement with the Guarantor, any change in the relationship between the
Guarantor and Tesla UK or dispute or disagreement between them under or in relation to any agreement providing for any of the
Obligations or otherwise; or
(f)
any other act, event, or omission which might operate to discharge, impair, or otherwise affect any of the obligations of the Guarantor
under this guarantee or any of the rights, powers, and remedies conferred upon Daimler by this guarantee or by law.
10.
This guarantee shall also apply regarding any Obligation according to any subsequent amendment, extension, restatement or replacement
of the Development Agreement.
11.
If at any time any provision of this guarantee is or becomes illegal, invalid or unenforceable in any respect or this guarantee is or becomes
ineffective in any respect, such illegality, invalidity, unenforceability, or ineffectiveness shall not affect: (a) the legality, validity, or
enforceability of the remaining provisions of this guarantee or the effectiveness in any other respect of this guarantee. The parties will
replace any illegal, invalid or unenforceable provision with retroactive effect by a provision that approximates as closely to the original aim
and purpose. The aforesaid shall apply mutatis mutandis to omissions jointly recognized as unintentional.
12.
No rights or obligations under this guarantee may be assigned, transferred, or otherwise disposed of (including held or declared into trust)
by the Guarantor without first seeking and obtaining the prior written consent of Daimler.
13.
This guarantee shall be exclusively governed by, and construed in accordance with the laws of the Federal Republic of Germany without
regard to principles of conflicts of laws. All disputes arising out of or in connection with this guarantee or its validity shall be finally settled
in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The
number of arbitrators shall be three. The place of arbitration shall be Frankfurt (Main), Germany. The language to be used in the arbitral
proceedings shall be English.
Pg. 4
14.
This guarantee shall terminate and shall automatically become null and void upon the complete performance and/or satisfaction of the
Obligations.
15.
This guarantee may be executed in any number of counterparts and by the parties on separate counterparts, each of which when executed
and delivered shall be an original but all the counterparts together constitute one instrument.
Annex 1 : Development Agreement (copy without Annexes)
Very truly yours,
Tesla Motors, Inc.
Address:
3500 Deer Creek Road
Palo Alto, California, 94304
USA
Accepted:
Daimler AG
Address:
Mercedesstraße 137
70327 Stuttgart
Germany
EXHIBIT B
Form of Intercompany Service Agreement
AMENDMENT NO. 2 TO
SERVICE AGREEMENT
This Amendment No. 2 to Service Agreement (this “Amendment”) is made and entered into as of December , 2012 (the “Amendment
Effective Date”) by and between Tesla Motors, Inc., a corporation incorporated under the laws of Delaware (“TESLA US”), and Tesla Motors
Limited, a corporation incorporated under the laws of the United Kingdom (“TESLA UK”).
RECITALS
WHEREAS, TESLA US and TESLA UK are parties to that certain Service Agreement effective as of August 1, 2009, as amended by that
certain Amendment No. 1 on January 1, 2011 (the “Agreement”).
WHEREAS, TESLA UK and Daimler AG (“Daimler”) have entered into that certain Development Agreement “Project Newton” ,
effective as of December , 2012 (the “Development Agreement”), pursuant to which TESLA UK shall provide certain services to Daimler (the
“Daimler Services”);
WHEREAS, TESLA UK is providing Daimler Services to Daimler on behalf of TESLA US;
WHEREAS, TESLA US may also perform services pursuant to the Development Agreement; and
WHEREAS, TESLA US and TESLA UK wish to amend the Agreement as set forth herein. Any capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the Parties hereby agree as follows:
AMENDMENT
SECTION 1. Effective as of the Amendment Effective Date, the Agreement is hereby amended as follows:
(a) ARTICLE 1 to the Agreement is hereby amended to add the following definitions in their proper alphabetical order, with existing
Sections being renumbered accordingly, including any references thereto:
“ Section 1.3. Grantee . “Grantee” shall mean a Party receiving a license or ownership right to Intangible Property under this Agreement.
Section 1.4. Grantor . “Grantor” shall mean a Party granting a license or assigning an ownership right to Intangible Property under this
Agreement.”
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(b) A new ARTICLE IV to the Agreement is hereby inserted as follows, with existing Articles and Sections being renumbered accordingly,
including any references thereto:
“ ARTICLE IV DAIMLER RELATED INTANGIBLE PROPERTY
Section 4.1. General Assignment of Daimler Related Intangible Property . TESLA UK is acting as a service provider for TESLA US in
entering into the Development Agreement and performing services on behalf of TESLA US under the Development Agreement. As a
result, any Intangible Property developed or acquired under the Development Agreement shall be owned by TESLA US. Therefore TESLA
UK hereby irrevocably assigns fully to TESLA US any and all Intangible Property that it may own, create or acquire pursuant to that
certain Development Agreement “Project Newton” , effective as of December , 2012, by and between TESLA UK and Daimler AG (the
“Development Agreement”).
Section 4.2. In connection with Section 4.1, TESLA UK will promptly disclose and deliver to TESLA US any Intangible Property created
or developed by TESLA UK in connection with the performance of the services under the Development Agreement or this Agreement
upon their creation or development, and shall provide reasonable assistance and cooperation to TESLA US, without any additional
compensation, to acquire, transfer, maintain, perfect and enforce such Intangible Property as may reasonably be requested by TESLA US.
Prior to the completion of the Services, TESLA UK shall upon TESLA US’s request, deliver to TESLA US all Intangible Property created
or developed by TESLA UK in connection with the performance of services under the Development Agreement as of the date of TESLA
US’s request. TESLA UK shall, at its own expense, execute any and all documents and legal instruments as may be requested by TESLA
US from time to time to carry out the terms of Sections 4.1 and 4.2.
Section 4.3. License of Certain Intangible Property to TESLA UK . In order for TESLA UK to perform services under the Development
Agreement and to enter into the Development Agreement, TESLA US hereby grants and agrees to grant to TESLA UK a non-exclusive,
irrevocable, royalty-free, fully paid-up, worldwide, perpetual right and license, with no right to sublicense (except as required by the
Development Agreement), under the Intangible Property that (i) is controlled by TESLA US, and (ii) is used, held for use, or contemplated
to be used by TESLA UK solely in connection with its obligations under the Development Agreement (“TESLA US Intangible Property”):
(A) to allow employees, directors and officers of TESLA UK to use and practice TESLA US Intangible Property within the scope of the
Development Agreement solely for internal purposes, (B) to make, have made, use, sell, offer to sell, have sold, import, and otherwise
provide, commercialize and legally dispose of products and services under such TESLA US Intangible Property within the scope of the
Development Agreement, and (C) to use, practice, copy, perform, display, render, develop, and create derivative works from such TESLA
US Intangible Property within the scope of the Development Agreement.
Section 4.4. Sublicense of Restricted Daimler Related Intangible Property to TESLA US . To the extent TESLA UK is restricted from
assigning any Intangible Property in accordance with Section 4.1 above (the “Restricted IP”), TESLA UK hereby grants and agrees to
grant to TESLA US a non-exclusive, irrevocable, royalty-free, fully paid-up worldwide, sublicensable, perpetual
2
right and license to such Restricted IP: (i) to allow employees, contractors, agents, directors and officers of TESLA US to use and practice
the Restricted IP, (ii) to make, have made, use, sell, offer to sell, have sold, import, and otherwise provide, commercialize and legally
dispose of products and services under the Restricted IP, and (iii) to use, practice, copy, perform, display, render, develop, and create
derivative works from the Restricted IP.
Section 4.5. Third Party Licenses . To the extent that any Intangible Property owned by a third party is assigned or licensed under
Sections 4.1, 4.3 or 4.4 herein, the license of such Intangible Property hereunder shall be subject to all of the terms and conditions of the
relevant agreement between the Grantor and such third party pursuant to which such Intangible Property has been licensed to the Grantor
(each, a “Third Party License”); provided, however, that the Grantee shall have the right to reject any such Third Party License upon
written notice to the Grantor within thirty (30) days after becoming so aware of the terms and conditions of such Third Party License, and,
upon any such rejection, the license of such third party rights to the Grantee hereunder shall be null and void, ab initio , and in no event
shall the Grantee be deemed to be bound at any point in time by the terms and conditions of such rejected Third Party License.
Section 4.6. Section 365(n) of the Bankruptcy Code . All rights and licenses granted under this Agreement, are and shall otherwise be
deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the “Bankruptcy Code”), licenses of rights to
“intellectual property” as defined under Section 101(35A) of the Bankruptcy Code. The parties shall retain and may fully exercise all of
their respective rights and elections under the Bankruptcy Code.
Section 4.7. Reservation of Rights . All rights not expressly granted by a Party hereunder are reserved by such Party. Without limiting the
generality of the foregoing, the Parties expressly acknowledge that nothing contained herein shall be construed or interpreted as an
assignment or grant, by implication or otherwise, of any Intangible Property or licenses other than the Intangible Property and licenses
expressly set forth in this ARTICLE IV. Subject to Section 4.4, the Grantee hereby acknowledges that the Grantor is only assigning and
licensing the rights that it has (and subject to any and all restrictions and limitations with respect to the scope and extent of such rights) in
and to the applicable Intangible Property, and nothing in this Agreement shall be construed as granting to the Grantee any greater rights in
or to such Intangible Property hereunder.
Section 4.8. Further Assurances . TESLA UK agrees to assist TESLA US, or its designee, in every proper way to secure TESLA US’s
rights in any Intangible Property in all countries, including the disclosure to TESLA US of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that TESLA UK may deem necessary
in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to TESLA US,
its successors, assigns and nominees the sole and exclusive right, title and interest in and to all Intangible Property and testifying in a suit
or other proceeding relating to such Intangible Property. TESLA UK further agrees that TESLA UK’s obligations under this Section 4.4
shall continue after the termination of this Agreement.”
3
(c) A new Section 9.16 to the Miscellaneous Provisions of the Agreement is hereby inserted as follows:
“ Section 9.16 . Acknowledgement of Collateral Assignment. TESLA US has granted a security interest in all of its rights under this
Agreement to the United States Department of Energy (“DOE”) (or a collateral agent for the benefit of DOE and certain other secured
parties) to secure TESLA USA’s obligations to DOE and such other secured parties. If a default in such obligations or under the related
documentation occurs and is continuing, DOE (or such collateral agent, as applicable) shall be entitled to enforce the rights of TESLA US
against TESLA UK under this Agreement and to further assign such rights upon the foreclosure of such security interest or an assignment
in lieu of foreclosure thereof, all without further consent of TESLA UK.”
SECTION 2. Effect of Amendment . Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Agreement, all of which shall
continue in full force and effect.
SECTION 3. Applicable Law . This Amendment shall be governed by and construed in accordance with the laws of the state of Massachusetts,
United States.
SECTION 4. Counterparts . This Amendment may be executed in multiple copies, including by facsimile or electronic transmission, each of
which shall for all purposes constitute an agreement, binding on the Parties, and each Party covenants and agrees to execute all duplicates or
replacement counterparts of this Amendment as may be required.
SECTION 5. Captions . Titles or captions of articles and paragraphs contained in this Amendment are inserted only as a matter of convenience
and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
4
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed on the Amendment Effective Date by their duly
authorized officers or directors.
TESLA MOTORS, INC.
By:
Name:
Title:
TESLA MOTORS LIMITED
By:
Name:
Title:
5
Exhibit 10.37F
FOURTH AMENDMENT TO THE
LOAN ARRANGEMENT AND REIMBURSEMENT AGREEMENT
FOURTH AMENDMENT, dated as of March 1, 2013 (this “ Amendment ”), to the Loan Arrangement and Reimbursement Agreement,
dated as of January 20, 2010 (as amended by the First Amendment to the Loan Arrangement and Reimbursement Agreement dated as of
June 15, 2011, the Limited Waiver dated as of February 22, 2012, the Second Amendment to the Loan Arrangement and Reimbursement
Agreement dated as of June 20, 2012, the Second Limited Waiver to the Loan Arrangement and Reimbursement Agreement dated as of
September 24, 2012, the Third Amendment to the Loan Reimbursement Agreement dated December 20, 2012 and as further amended,
supplemented or otherwise modified from time to time prior to the date hereof, the “ Arrangement Agreement ”), between Tesla Motors, Inc.
(the “ Borrower ”) and the United States Department of Energy (“ DOE ”). Unless otherwise defined herein, terms defined in the Arrangement
Agreement and used herein shall have the meanings given to them in the Arrangement Agreement.
WHEREAS, the Borrower has requested that DOE agree to certain amendments to the Arrangement Agreement, and DOE is willing to
agree to such amendments on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments . Effective as of the Amendment Effective Date (as defined below), the Arrangement Agreement is hereby
amended as follows:
(a) Section 3.3(b)(i) to the Arrangement Agreement is hereby amended and restated in its entirety to read as follows:
“(i) Note P shall (A) be stated to mature on the Note P Stated Maturity Date and provide that each Advance under Note P amortizes
in quarterly installments with the amount of each installment calculated as if such Note were amortizing in twenty-eight (28) equal
consecutive quarterly installments of principal (each, a “ Note P Installment ”) payable on each Quarterly Payment Date, commencing on
December 15, 2012, with the balance due in full on the Note P Stated Maturity Date, and (B) provide for the payment of interest in
accordance with Section 3.5 and the Funding Agreements.”
(b) Section 3.3(b)(ii) to the Arrangement Agreement is hereby amended and restated in its entirety to read as follows:
“(ii) Note S shall (A) be stated to mature on the Note S Stated Maturity Date and provide that each Advance under Note S amortizes
in quarterly installments with the amount of each installment calculated as if such Note were amortizing in forty (40) equal consecutive
quarterly installments of principal (each, a “Note S Installment”) payable on each Quarterly Payment Date, commencing on December 15,
2012, with the balance due in full on the Note S Stated Maturity Date, and (B) provide for the payment of interest in accordance with
Section 3.5 and the Funding Agreements.”
(c) Section 3.3 to the Arrangement Agreement is hereby amended by adding a new subsection (c) to read as follows:
“(c) The Borrower shall enter into such amendments to the Notes as FFB may require to reflect the amendments to Section 3.3(b)
made pursuant to that certain Fourth Amendment to this Agreement, and shall deliver to FFB such other documents as FFB may require in
connection therewith. Unless and until the Notes are so amended, the Borrower's obligations under Sections 3.3(a) and (b) to make
payment of principal in full on the Note P Stated Maturity Date and the Note S Stated Maturity Date shall be treated under the Notes as a
mandatory prepayment and shall be subject to the terms and conditions of the Notes in respect thereof.”
(d) Section 3.6(a)(ii) to the Arrangement Agreement is hereby amended by adding at the beginning “except as otherwise provided in
Section 3.6(c)(ix)(C) .”
(e) Section 3.6(c) to the Arrangement Agreement is hereby amended by (x) adding new subsections (v) and (vi) to read as follows and
(y) renumbering existing subsections (v), (vi) and (vii) and all cross-references to such subsections in any of the Loan Documents accordingly:
“(v) Excess Cash Flow . After the end of each fiscal quarter occurring in the Fiscal Years ending December 31, 2015, December 31,
2016 and December 31, 2017, if there shall be Excess Cash Flow for such fiscal quarter, the Borrower shall, concurrently with the delivery
of quarterly Financial Statements pursuant to Section 8.1(b) for such fiscal quarter, deliver to DOE and FFB (x) a Prepayment Election
Notice, specifying that it elects to prepay the Advances under the Notes in a principal amount that results in a Prepayment Price equal to
the Applicable ECF Percentage of the Excess Cash Flow for such fiscal quarter in accordance with Sections 3.6(c)(viii) and (ix)(C), and
(y) a certificate executed by a Responsible Officer of the Borrower setting forth in reasonable detail the amount of, and the calculation
required for determining the amount of, Excess Cash Flow for such fiscal quarter, and shall make such prepayment within five (5) Business
Days after the delivery of such Prepayment Election Notice. If the Excess Cash Flow for any Fiscal Year referred to in the preceding
sentence as reflected in the audited consolidated Financial Statements of the Borrower delivered pursuant to Section 8.1(c) is greater than
the aggregate amount of Excess Cash Flow for the four fiscal quarters of such year as reflected in the quarterly Financial Statements of the
Borrower delivered pursuant to Section 8.1(b) , the Borrower shall, concurrently with the delivery of such audited consolidated Financial
Statements, deliver to DOE and FFB (x) a Prepayment Election Notice, specifying that it elects to prepay the Advances under the Notes in
a principal amount that results in a Prepayment Price equal to the Applicable ECF Percentage of the difference in accordance with Sections
3.6(c)(viii) and (ix)(C) , and (y) a certificate executed by a Responsible Officer of the Borrower setting forth in reasonable detail the
amount of, and the calculation required for determining the amount of, Excess Cash Flow for such Fiscal Year and such difference, and
shall make such prepayment within five (5) Business Days after the delivery of such Prepayment Election
2
Notice. If there is no Excess Cash Flow for any fiscal period referred to in this Section 3.6(c)(v) , the Borrower shall, concurrently with the
delivery of the Financial Statements for such fiscal period pursuant to Section 8.1(b) or (c) , as applicable, deliver to DOE and FFB a
certificate executed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation required for determining that
there is no Excess Cash Flow for such fiscal period.
(vi) Fourth Amendment Prepayment . At least five (5) Business Days prior to the Intended Prepayment Date, the Borrower shall
deliver to DOE and FFB a Prepayment Election Notice, specifying that it elects to prepay the Advances under the Notes in a principal
amount that results in a Prepayment Price equal to $4,523,366.91 in accordance with Sections 3.6(c)(viii) and (ix)(C) , and shall make such
prepayment on or before June 15, 2013.”
(f) Section 3.6(c)(vii) to the Arrangement Agreement, in addition to being renumbered as Section 3.6 (c)(ix) as provided above, is hereby
amended by adding a new clause (C) to read as follows:
“(C) In the case of any mandatory prepayment made pursuant to Section 3.6(c)(v) or 3.6(c)(vi) , (w) such prepayment shall be
allocated among any of the outstanding Advances selected by DOE in its sole discretion, (x) the Portion (as defined in the applicable
Note) of each such Advance being prepaid shall be deemed to be the amount of principal for which the Prepayment Price calculated
in accordance with the terms of the applicable Note shall equal the amount allocated to such Advance under clause (w) of this
paragraph, (y) such prepayment of the Portion of each such Advance shall be applied to the remaining scheduled Note Installments,
in the inverse order of maturity, of such Advance, in accordance with the terms of the applicable Note, and (z) such prepayment shall
be accompanied by payment of accrued and unpaid interest on the Portion of each such Advance being prepaid.”
(g) Section 9.16(b) to the Arrangement Agreement is hereby amended by adding the following to the end thereof:
“ (any capital or other expenditure relating to new product development that is expected to involve an aggregate spend on a
cumulative basis through completion of the development of the new product of $100 million or more being deemed (without limitation) to
be a material modification of the Business Plan).”
(h) Annex A to the Arrangement Agreement is hereby amended by adding the following definitions in their proper alphabetical order:
“‘ Applicable ECF Percentage’ means (a) 20% for each fiscal quarter occurring in the Fiscal Year ending December 31, 2015 and
(b) 35% for each fiscal quarter thereafter.”
3
“‘ Excess Cash Flow ’ means with respect to any fiscal period, Consolidated Adjusted EBITDA minus (a) (i) any increases in
Consolidated Working Capital during such period, (ii) interest on Indebtedness and taxes paid in cash during such period, (iii) capital
expenditures incurred and paid for in cash during such period and (iv) scheduled principal payments on Indebtedness during such period
and (v) the remainder (if greater than zero) resulting from subtracting the amount of cash and Cash Equivalents (other than Permitted
Restricted Deposits and all amounts listed as reservation payments on the consolidated balance sheet of the Borrower) held by the
Borrower as of the end of such fiscal period from $200,000,000 and plus (b) any decreases in Consolidated Working Capital.”
“‘ Consolidated Working Capital ’ means with respect to any date, (a) the sum of all amounts (other than cash and Cash Equivalents)
that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated
balance sheet of the Borrower and its subsidiaries at such date minus (b) the sum of all amounts that would, in conformity with GAAP, be
set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its
subsidiaries on such date, but excluding without duplication (i) the current portion of any Indebtedness, (ii) all Indebtedness under
revolving credit lines to the extent otherwise included therein, and (iii) all amounts listed as reservation payments on the consolidated
balance sheet of the Borrower.”
(i) Annex A to the Arrangement Agreement is hereby amended by amending and restating the following definitions in their entirety to read
as follows (and, for the avoidance of doubt, the final payments under Note P and Note S to be made on the following dates, respectively, shall
not be deemed prepayments subject to Section 3.6 ):
“‘ Note P Stated Maturity Date ’ means December 15, 2017.”
“‘ Note S Stated Maturity Date ” means December 15, 2017.”
(j) Annex 9.1 to the Arrangement Agreement is hereby amended by amending and restating Section (d) thereof in its entirety to read as
follows:
“(d) Phase B .
For each fiscal quarter ending after December 15, 2012 (each such quarter, an “ Applicable Quarter ”), the following financial
covenants will be measured as follows:
(i) Leverage Ratio. For each Applicable Quarter, the Borrower shall not permit the ratio of Consolidated Total Debt (as of the
last day of such Applicable Quarter) to Consolidated Adjusted EBITDA (for the trailing twelve (12) months ending with such
Applicable Quarter) to exceed the levels set forth in the schedule below for such Applicable Quarter:
4
Maximum Ratio of
Consolidated
Total Debt to
Consolidated
Adjusted EBITDA
Fiscal Quarter(s) Ending
Prior to December 31, 2013
December 31, 2013
March 31, 2014
June 30, 2014
September 30, 2014
December 31, 2014
March 31, 2015 and thereafter
Not applicable
5.5 to 1.0
5.0 to 1.0
4.0 to 1.0
3.5 to 1.0
2.5 to 1.0
(ii) Interest Coverage Ratio. For each Applicable Quarter, the Borrower shall not permit the ratio of Consolidated Adjusted
EBITDA (for the trailing twelve (12) months ending with each Applicable Quarter and tested as of the last day of such Applicable
Quarter) to Consolidated Interest Expense (for the trailing twelve (12) months ending with such Applicable Quarter) to be less than
the levels set forth in the schedule below for such Applicable Quarter:
Minimum Ratio of
Consolidated
Adjusted EBITDA
to Consolidated
Interest Expense
Fiscal Quarter(s) Ending
Prior to December 31, 2013
December 31, 2013
March 31, 2014 and thereafter
Not applicable
1.75 to 1.0
2.0 to 1.0
(iii) Fixed Charge Coverage Ratio. For each Applicable Quarter, the Borrower shall not permit the ratio of Consolidated
Adjusted EBITDA to Consolidated Fixed Charges (“ Fixed Charge Coverage Ratio ”) (for the trailing twelve (12) months ending
with such Applicable Quarter) to be less than the levels set forth in the schedule below for such Applicable Quarter:
Minimum Fixed
Charge
Coverage Ratio
Fiscal Quarter(s) Ending
Prior to December 31, 2013
December 31, 2013
March 31, 2014
June 30, 2014
September 30, 2014
December 31, 2014
March 31, 2015
June 30, 2015
September 30, 2015
December 31, 2015
Not applicable
0.25 to 1.0
0.5 to 1.0
0.75 to 1.0
5
Minimum Fixed
Charge
Coverage Ratio
Fiscal Quarter(s) Ending
March 31, 2016
June 30, 2016
September 30, 2016
December 31, 2016
March 31, 2017 and thereafter
1.0 to 1.0
1.25 to 1.0
provided, that if the Borrower shall submit any updated Business Plan in accordance with Section 8.2(b) of the Agreement, which
Business Plan shall include financial projections which account for changes in capital expenditures and financing programs, the
Borrower may propose, as part of such updated Business Plan, revised Minimum Fixed Charge Coverage Ratios based on such
changes (each, a “ Proposed Ratio Change ”). Unless DOE explicitly rejects any Proposed Ratio Change within forty-five (45) days
of receiving any Business Plan delivered in accordance with Section 8.2(b) of the Agreement, DOE’s approval of any Business Plan
as a whole shall be deemed to extend to the Proposed Ratio Changes contained therein.
(iv) Current Ratio. For each Applicable Quarter, the Borrower shall not permit the Current Ratio to be less than the levels set
forth in the schedule below for the Fiscal Year during which such Applicable Quarter occurs:
Minimum Ratio of
Current Assets
to Current
Liabilities
Fiscal Year Ending
12/31/2012
12/31/2013
12/31/2014
12/31/2015 and thereafter
1.0 to 1.0
1.05 to 1.0
1.10 to 1.0
1.15 to 1.0
(v) Total Liabilities to Shareholder Equity. From and after March 31, 2014, the Borrower shall not permit the ratio of
Consolidated Total Liabilities to Shareholder Equity to exceed the levels set forth in the schedule below for such Applicable Quarter:
Maximum Ratio of
Consolidated Total
Liabilities to
Shareholder Equity
Fiscal Quarter(s) Ending
Prior to March 31, 2014
March 31, 2014
June 30, 2014
September 30, 2014
December 31, 2014
March 31, 2015
June 30, 2015
September 30, 2015
December 31, 2015
Not applicable
5.5 to 1.0
5.0 to 1.0
4.5 to 1.0
4.0 to 1.0
3.0 to 1.0
6
Maximum Ratio of
Consolidated Total
Liabilities to
Shareholder Equity
Fiscal Quarter(s) Ending
March 31, 2016
June 30, 2016
September 30, 2016
and thereafter
2.5 to 1.0
2.0 to 1.0
(vi) Capital Expenditures . The Borrower shall not, and shall not permit its Subsidiaries to, make or incur any Capital
Expenditures for any period in excess of 120% of the aggregate amount set forth for Capital Expenditures for such period in the
Business Plan.
(vii) Operating Lease Expense . DOE reserves the right to require an additional financial covenant relating to operating lease
expense to be established on mutually agreeable terms in connection with the approval of any Business Plan which includes an
amount of operating lease expense that DOE deems to be material.”
SECTION 2. Representations and Warranties . Each of the Obligors hereby represents and warrants to DOE that:
(a) As of the Amendment Effective Date, no Default or Event of Default has occurred and is continuing.
(b) Each of the representations and warranties made by any Obligor in or pursuant to the Transaction Documents (other than the
representations and warranties contained in Article 8 of the Note Purchase Agreement) is true and correct in all material respects on and as of the
Amendment Effective Date as if made on and as of the Amendment Effective Date (except to the extent such representations and warranties
relate to an earlier date, in which case, such representations and warranties were true and correct in all material respects as of such earlier date).
(c) Each Obligor has all requisite power and authority to execute, deliver, perform and observe its obligations under this Amendment and
has duly executed and delivered this Amendment. No board, stockholder or other corporate approvals of any Obligor are required for this
Amendment.
SECTION 3. Effectiveness of this Amendment . This Amendment shall become effective on the date (the “ Amendment Effective Date ”)
when DOE (i) shall have received duly executed counterparts hereof that bear the signatures of Borrower and any other Obligor appearing on the
signature page hereof (it being agreed that the receipt of duly executed counterparts delivered by facsimile or electronic transmission in
Electronic Format shall be sufficient to satisfy the requirements of this clause (i)), and (ii) shall have executed this Amendment.
7
SECTION 4. Effect of Amendment .
(a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or
otherwise affect the rights and remedies of DOE under the Arrangement Agreement or any other Loan Document and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Arrangement Agreement or any
other provision of the Arrangement Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the Borrower or any other Obligor to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Arrangement
Agreement or any other Loan Document in similar or different circumstances.
(b) On and after the Amendment Effective Date, each reference in the Arrangement Agreement to “this Agreement”, “hereunder”,
“hereof’, “herein”, or words of like import, and each reference to the “Arrangement Agreement” in any other Loan Document shall be deemed a
reference to the Arrangement Agreement as modified hereby. This Amendment shall be deemed an amendment to the Arrangement Agreement
pursuant to Section 12.1 of the Arrangement Agreement and constitute a “Loan Document” for all purposes of the Arrangement Agreement and
the other Loan Documents.
SECTION 5. Consent and Reaffirmation . (a) Each Guarantor hereby consents to this Amendment and the transactions contemplated
hereby, (b) each of Borrower and the Guarantors agrees that, notwithstanding the effectiveness of this Amendment, the Guarantee, the Security
Agreement and each of the other Loan Documents continue to be in full force and effect, (c) each Guarantor confirms its guarantee of the
Guaranteed Obligations (as defined in the Guarantee and which definition, for clarity, incorporates by reference all Note P Obligations and all
Note S Obligations under the Arrangement Agreement as modified hereby), and each of Borrower and the Guarantors confirms its grant of a
security interest in its assets as Collateral for the Secured Obligations, all as provided in the Loan Documents, and (d) each of Borrower and the
Guarantors acknowledges that such guarantee and/or grant continues in full force and effect in respect of, and to secure, the Secured Obligations.
SECTION 6. Governing Law . THIS AMENDMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER,
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, FEDERAL LAW AND NOT THE
LAW OF ANY STATE OR LOCALITY. TO THE EXTENT THAT A COURT LOOKS TO THE LAWS OF ANY STATE TO DETERMINE
OR DEFINE THE FEDERAL LAW, IT IS THE INTENTION OF THE PARTIES HERETO THAT SUCH COURT SHALL LOOK ONLY TO
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE RULES OF CONFLICTS OF LAWS.
SECTION 7. Counterparts . This Amendment may be executed in counterparts of the parties hereof, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the same instrument. The parties may deliver such counterparts by
facsimile or electronic transmission in Electronic Format. Each party hereto agrees to deliver a manually executed original promptly following
such facsimile or electronic transmission.
8
SECTION 8. Headings . Paragraph headings have been inserted in this Amendment as a matter of convenience for reference only and it is
agreed that such paragraph headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this
Amendment.
[ Remainder of page intentionally blank ]
9
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above mentioned.
UNITED STATES DEPARTMENT OF ENERGY
By: /s/ Frances Nwachuku
Name: Frances Nwachuku
Title: Director, Portfolio Management Division
[Signature Page to Fourth Amendment]
TESLA MOTORS, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS NEW YORK LLC
By: Tesla Motors, Inc., its sole member
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS LEASING, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS MA, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
TESLA MOTORS PA, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
TESLA MOTORS TX, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
[Signature Page to Fourth Amendment]
NORTHERN NEVADA RESEARCH CO., LLC
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: Chief Financial Officer
TESLA MOTORS NV, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
TESLA MOTORS FL, INC.
By: /s/ Deepak Ahuja
Name: Deepak Ahuja
Title: President
[Signature Page to Fourth Amendment]
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No. 333-183033 and No. 333-167874) of Tesla
Motors, Inc. of our report dated March 7, 2013 relating to the financial statements and the effectiveness of internal control over financial
reporting, which appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
March 7, 2013
EXHIBIT 31.1
CERTIFICATIONS
I, Elon Musk, certify that:
1.
I have reviewed this Annual Report on Form 10-K of Tesla Motors, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
5.
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent
functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 7, 2013
/s/ Elon Musk
Elon Musk
Chief Executive Officer
(Principal Executive Officer)
EXHIBIT 31.2
CERTIFICATIONS
I, Deepak Ahuja, certify that:
1.
I have reviewed this Annual Report on Form 10-K of Tesla Motors, Inc.;
2.
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3.
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and have:
5.
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us
by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about
the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such
evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s
most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is
reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s Board of Directors (or persons performing the equivalent
functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s
internal control over financial reporting.
Date: March 7, 2013
/s/ Deepak Ahuja
Deepak Ahuja
Chief Financial Officer
(Principal Financial Officer)
EXHIBIT 32.1
SECTION 1350 CERTIFICATIONS
I, Elon Musk, certify, pursuant to 18 U.S.C. Section 1350, that, to my knowledge, the Annual Report of Tesla Motors, Inc. on Form 10-K for the
annual period ended December 31, 2012, (i) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of
1934 and (ii) that the information contained in such Form 10-K fairly presents, in all material respects, the financial condition and results of
operations of Tesla Motors, Inc.
Date: March 7, 2013
/s/ Elon Musk
Elon Musk
Chief Executive Officer
(Principal Executive Officer)
I, Deepak Ahuja, certify, pursuant to 18 U.S.C. Section 1350, that, to my knowledge, the Annual Report of Tesla Motors, Inc. on Form 10-K for
the annual period ended December 31, 2012, (i) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of
1934 and (ii) that the information contained in such Form 10-K fairly presents, in all material respects, the financial condition and results of
operations of Tesla Motors, Inc.
Date: March 7, 2013
/s/ Deepak Ahuja
Deepak Ahuja
Chief Financial Officer
(Principal Financial Officer)

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