T
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
o
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
Delaware
|
94-3008969
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
(I.R.S.
Employer Identification No.)
|
Large
Accelerated Filer T
|
Accelerated
Filer o
|
Non-accelerated
filer o
|
Smaller
reporting company o
|
(Do
not check if a smaller reporting
company)
|
Page
|
||
3
|
||
Item
1.
|
3
|
|
3
|
||
4
|
||
5
|
||
6
|
||
Item
2.
|
28
|
|
Item
3.
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39
|
|
Item
4.
|
41
|
|
41
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||
Item
1.
|
41
|
|
Item
1A.
|
41
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|
Item
6.
|
43
|
|
44
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||
45
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Item 1.
|
Financial
Statements
|
March 29,
2009
|
December 28,
2008(1)
|
|||||||
Assets
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$
|
149,110
|
$
|
202,331
|
||||
Restricted
cash and cash equivalents, current portion
|
12,663
|
13,240
|
||||||
Short-term
investments
|
2,297
|
17,179
|
||||||
Accounts
receivable, net
|
149,179
|
194,222
|
||||||
Costs
and estimated earnings in excess of billings
|
34,164
|
30,326
|
||||||
Inventories
|
343,169
|
251,542
|
||||||
Advances
to suppliers, current portion
|
39,647
|
43,190
|
||||||
Prepaid
expenses and other current assets
|
75,119
|
98,254
|
||||||
Total
current assets
|
805,348
|
850,284
|
||||||
Restricted
cash and cash equivalents, net of current portion
|
171,799
|
162,037
|
||||||
Long-term
investments
|
18,971
|
23,577
|
||||||
Property,
plant and equipment, net
|
687,159
|
629,247
|
||||||
Goodwill
|
196,224
|
196,720
|
||||||
Intangible
assets, net
|
35,385
|
39,490
|
||||||
Advances
to suppliers, net of current portion
|
114,879
|
119,420
|
||||||
Other
long-term assets
|
78,316
|
76,751
|
||||||
Total
assets
|
$
|
2,108,081
|
$
|
2,097,526
|
||||
Liabilities
and Stockholders’ Equity
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$
|
272,600
|
$
|
263,241
|
||||
Accrued
liabilities
|
104,346
|
157,049
|
||||||
Billings
in excess of costs and estimated earnings
|
6,904
|
11,806
|
||||||
Customer
advances, current portion
|
15,404
|
19,035
|
||||||
Total
current liabilities
|
399,254
|
451,131
|
||||||
Long-term
debt
|
103,850
|
54,598
|
||||||
Convertible
debt
|
363,768
|
357,173
|
||||||
Long-term
deferred tax liability
|
10,963
|
8,141
|
||||||
Customer
advances, net of current portion
|
85,668
|
91,359
|
||||||
Other
long-term liabilities
|
24,509
|
25,950
|
||||||
Total
liabilities
|
988,012
|
988,352
|
||||||
Commitments
and contingencies (Note 8)
|
||||||||
Stockholders’
equity:
|
||||||||
Preferred
stock, $0.001 par value, 10,042,490 shares authorized; none issued and
outstanding
|
—
|
—
|
||||||
Common
stock, $0.001 par value, 150,000,000 shares of class B common stock
authorized; 42,033,287 shares of class B common stock issued and
outstanding; $0.001 par value, 217,500,000 shares of class A common stock
authorized; 44,274,852 and 44,055,644 shares of class A common stock
issued; 43,999,060 and 43,849,566 shares of class A common stock
outstanding, at March 29, 2009 and December 28, 2008,
respectively
|
86
|
86
|
||||||
Additional
paid-in capital
|
1,077,851
|
1,065,745
|
||||||
Accumulated
other comprehensive loss
|
(19,677
|
) |
(25,611
|
)
|
||||
Retained
earnings
|
72,825
|
77,611
|
||||||
1,131,085
|
1,117,831
|
|||||||
Less:
shares of class A common stock held in treasury, at cost; 275,792 and
206,078 shares at March 29, 2009 and December 28, 2008,
respectively
|
(11,016
|
)
|
(8,657
|
)
|
||||
Total
stockholders’ equity
|
1,120,069
|
1,109,174
|
||||||
Total
liabilities and stockholders’ equity
|
$
|
2,108,081
|
$
|
2,097,526
|
(1)
|
As
adjusted due to the implementation of FSP APB 14-1 (see Note
1).
|
Three Months Ended
|
||||||||
March 29,
2009
|
March 30,
2008(1)
|
|||||||
Revenue:
|
||||||||
Systems
|
$
|
106,097
|
$
|
178,851
|
||||
Components
|
107,690
|
94,850
|
||||||
Total
revenue
|
213,787
|
273,701
|
||||||
Costs
and expenses:
|
||||||||
Cost
of systems revenue
|
88,351
|
143,264
|
||||||
Cost
of components revenue
|
77,688
|
77,242
|
||||||
Research
and development
|
7,964
|
4,642
|
||||||
Sales,
general and administrative
|
42,283
|
33,858
|
||||||
Total
costs and expenses
|
216,286
|
259,006
|
||||||
Operating
income (loss)
|
(2,499
|
) |
14,695
|
|||||
Other
income (expense):
|
||||||||
Interest
income
|
1,184
|
4,147
|
||||||
Interest
expense
|
(6,121
|
)
|
(6,297
|
)
|
||||
Other,
net
|
(7,157
|
)
|
715
|
|||||
Other
income (expense), net
|
(12,094
|
) |
(1,435
|
)
|
||||
Income
(loss) before income taxes and equity in earnings of unconsolidated
investees
|
(14,593
|
) |
13,260
|
|||||
Income
tax provision (benefit)
|
(8,562
|
) |
1,805
|
|||||
Income
(loss) before equity in earnings of unconsolidated
investees
|
(6,031
|
) |
11,455
|
|||||
Equity
in earnings of unconsolidated investees, net of
taxes
|
1,245
|
544
|
||||||
Net
income (loss)
|
$
|
(4,786
|
) |
$
|
11,999
|
|||
Net
income (loss) per share of class A and class B common
stock:
|
||||||||
Basic
|
$
|
(0.06
|
) |
$
|
0.15
|
|||
Diluted
|
$
|
(0.06
|
) |
$
|
0.14
|
|||
Weighted-average
shares:
|
||||||||
Basic
|
83,749
|
78,965
|
||||||
Diluted
|
83,749
|
83,002
|
(1)
|
As
adjusted due to the implementation of FSP APB 14-1 and FSP EITF 03-6-1
(see Note 1).
|
Three Months Ended
|
||||||||
March 29,
2009
|
March 30,
2008(1)
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
income (loss)
|
$
|
(4,786
|
) |
$
|
11,999
|
|||
Adjustments
to reconcile net income (loss) to net cash used in operating
activities:
|
||||||||
Stock-based
compensation
|
9,483
|
14,508
|
||||||
Depreciation
|
18,365
|
10,139
|
||||||
Amortization
of intangible assets
|
4,052
|
4,317
|
||||||
Impairment
of long-lived assets
|
1,318
|
5,489
|
||||||
Non-cash
interest expense
|
5,021
|
4,384
|
||||||
Amortization
of debt issuance costs
|
537
|
537
|
||||||
Equity
in earnings of unconsolidated investees
|
(1,245
|
)
|
(544
|
)
|
||||
Excess
tax benefits from stock-based award activity
|
—
|
(4,361
|
)
|
|||||
Deferred
income taxes and other tax liabilities
|
(6,369
|
) |
(455
|
) | ||||
Changes
in operating assets and liabilities, net of effect of
acquisition:
|
||||||||
Accounts
receivable
|
40,931
|
(17,162
|
)
|
|||||
Costs
and estimated earnings in excess of billings
|
(3,797
|
)
|
(20,709
|
)
|
||||
Inventories
|
(95,870
|
)
|
(39,530
|
)
|
||||
Prepaid
expenses and other assets
|
11,913
|
(13,948
|
)
|
|||||
Advances
to suppliers
|
7,993
|
(2,559
|
)
|
|||||
Accounts
payable and other accrued liabilities
|
(27,199
|
)
|
22,983
|
|||||
Billings
in excess of costs and estimated earnings
|
(4,612
|
)
|
(43,663
|
)
|
||||
Customer
advances
|
(8,860
|
)
|
(786
|
)
|
||||
Net
cash used in operating activities
|
(53,125
|
)
|
(69,361
|
)
|
||||
Cash
flows from investing activities:
|
||||||||
Increase
in restricted cash and cash equivalents
|
(9,185
|
)
|
(55,550
|
)
|
||||
Purchase
of property, plant and equipment
|
(52,101
|
)
|
(50,790
|
)
|
||||
Purchase
of available-for-sale securities
|
—
|
(50,970
|
)
|
|||||
Proceeds
from sales or maturities of available-for-sale
securities
|
18,177
|
84,106
|
||||||
Cash
paid for acquisition, net of cash acquired
|
—
|
(13,484
|
)
|
|||||
Cash
paid for investments in joint ventures and other non-public
companies
|
—
|
(5,625
|
)
|
|||||
Net
cash used in investing activities
|
(43,109
|
)
|
(92,313
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Proceeds
from issuance of long-term debt
|
51,232
|
—
|
||||||
Proceeds
from exercise of stock options
|
396
|
1,138
|
||||||
Excess
tax benefits from stock-based award activity
|
—
|
4,361
|
||||||
Purchases
of stock for tax withholding obligations on vested restricted
stock
|
(2,359
|
)
|
(3,334
|
)
|
||||
Net
cash provided by financing activities
|
49,269
|
2,165
|
||||||
Effect
of exchange rate changes on cash and cash
equivalents
|
(6,256
|
)
|
6,817
|
|||||
Net
decrease in cash and cash equivalents
|
(53,221
|
)
|
(152,692
|
)
|
||||
Cash
and cash equivalents at beginning of period
|
202,331
|
285,214
|
||||||
Cash
and cash equivalents at end of period
|
$
|
149,110
|
$
|
132,522
|
||||
Non-cash
transactions:
|
||||||||
Additions
to property, plant and equipment acquired under accounts payable and other
accrued liabilities
|
$
|
22,571
|
$
|
4,446
|
||||
Non-cash
interest expense capitalized and added to the cost of qualified
assets
|
2,073
|
1,784
|
||||||
Change
in goodwill relating to adjustments to acquired net
assets
|
—
|
231
|
(1)
|
As
adjusted due to the implementation of FSP APB 14-1 (see Note
1).
|
(In thousands)
|
As Adjusted
in this
Quarterly Report
on Form 10-Q
|
As Previously Reported in
Annual Report
on Form 10-K
|
|||||
Assets
|
|||||||
Inventories
|
$
|
251,542
|
$
|
251,388
|
|||
Prepaid
expenses and other current assets
|
98,254
|
96,104
|
|||||
Property,
plant and equipment, net
|
629,247
|
612,687
|
|||||
Other
long-term assets
|
76,751
|
74,224
|
|||||
Total
assets
|
2,097,526
|
2,076,135
|
|||||
Liabilities
|
|||||||
Convertible
debt
|
357,173
|
423,608
|
|||||
Deferred
tax liability, net of current portion
|
8,141
|
8,115
|
|||||
Total
liabilities
|
988,352
|
1,054,761
|
|||||
Stockholders’
Equity
|
|||||||
Additional
paid-in capital
|
1,065,745
|
1,003,954
|
|||||
Retained
earnings
|
77,611
|
51,602
|
|||||
Total
stockholders’ equity
|
1,109,174 |
1,021,374
|
(In
thousands)
|
As Adjusted
in this
Quarterly Report
on Form 10-Q
|
As Previously Reported in
Quarterly Report
on Form 10-Q
|
||||||
Cost
of systems revenue
|
$ | 143,264 | $ | 143,213 | ||||
Cost
of components revenue
|
77,242 | 77,168 | ||||||
Operating
income
|
14,695 | 14,820 | ||||||
Interest
expense
|
(6,297 | ) | (1,464 | ) | ||||
Other,
net
|
715 | (257 | ) | |||||
Income
before income taxes and equity in earnings of unconsolidated
investees
|
13,260 | 17,246 | ||||||
Income
tax provision
|
1,805 | 5,033 | ||||||
Income
before equity in earnings of unconsolidated
investees
|
11,455 | 12,213 | ||||||
Net
income
|
11,999 | 12,757 |
(In thousands)
|
As Adjusted
in this
Quarterly Report
on Form 10-Q
|
As Previously Reported in
Quarterly Report
on Form 10-Q
|
||||||
Cash
flows from operating activities:
|
||||||||
Net
income
|
$ | 11,999 | $ | 12,757 | ||||
Depreciation
|
10,139 | 10,102 | ||||||
Non-cash
interest expense
|
4,384 | — | ||||||
Amortization
of debt issuance costs
|
537 | 972 | ||||||
Deferred
income taxes and other tax liabilities
|
(455 | ) | 2,773 | |||||
Net
cash used in operating activities
|
(69,361 | ) | (69,361 | ) |
(In thousands, except per share
data)
|
As Adjusted
in this
Quarterly Report
on Form 10-Q
|
As Previously Reported in
Quarterly Report
on Form 10-Q
|
|||||
Net
income
|
$
|
11,999
|
$
|
11,999
|
|||
Net
income per share of class A and class B common
stock:
|
|||||||
Basic
|
$
|
0.15
|
$
|
0.15
|
|||
Diluted
|
$
|
0.14
|
$
|
0.14
|
|||
Weighted-average
shares:
|
|||||||
Basic
|
78,965
|
78,965
|
|||||
Diluted
|
83,002
|
83,661
|
(In thousands)
|
March 29,
2009
|
December 28,
2008(2)
|
||||||
Inventories:
|
||||||||
Raw
materials(1)
|
$
|
124,759
|
$
|
130,082
|
||||
Work-in-process
|
12,872
|
15,505
|
||||||
Finished
goods
|
205,538
|
105,955
|
||||||
$
|
343,169
|
$
|
251,542
|
(1)
|
In
addition to polysilicon and other raw materials for solar cell
manufacturing, raw materials include solar panels purchased from
third-party vendors and installation materials for systems
projects.
|
(2)
|
The
balance of finished goods increased by $0.2 million for the change in
amortization of capitalized non-cash interest expense capitalized in
inventory as a result of the Company’s adoption of FSP APB 14-1 (see Note
1).
|
(In thousands)
|
March 29,
2009
|
December 28,
2008(1)
|
||||||
Property,
plant and equipment, net:
|
||||||||
Land
and buildings
|
$
|
13,914
|
$
|
13,912
|
||||
Manufacturing
equipment
|
450,879
|
387,860
|
||||||
Computer
equipment
|
36,849
|
26,957
|
||||||
Furniture
and fixtures
|
4,330
|
4,327
|
||||||
Leasehold
improvements
|
159,748
|
148,190
|
||||||
Construction-in-process
|
141,869
|
149,657
|
||||||
807,589
|
730,903
|
|||||||
Less:
Accumulated depreciation
|
(120,430
|
)
|
(101,656
|
)
|
||||
$
|
687,159
|
$
|
629,247
|
(1)
|
Property,
plant and equipment, net increased $16.6 million for non-cash interest
expense associated with the 1.25% debentures and 0.75% debentures that was
capitalized and added to the cost of qualified assets as a result of the
Company’s adoption of FSP APB 14-1 (see Note
1).
|
(In thousands)
|
Systems
|
Components
|
Total
|
|||||||||
As
of December 28, 2008
|
$
|
181,801
|
$
|
14,919
|
$
|
196,720
|
||||||
Translation
adjustment
|
—
|
(496
|
) |
(496
|
) | |||||||
As
of March 29, 2009
|
$
|
181,801
|
$
|
14,423
|
$
|
196,224
|
(In thousands)
|
Gross
|
Accumulated
Amortization
|
Net
|
|||||||||
As
of March 29, 2009
|
||||||||||||
Patents
and purchased technology
|
$
|
51,398
|
$
|
(33,995
|
) |
$
|
17,403
|
|||||
Tradenames
|
2,478
|
(1,768
|
) |
710
|
||||||||
Customer
relationships and other
|
27,381
|
(10,109
|
) |
17,272
|
||||||||
$
|
81,257
|
$
|
(45,872
|
) |
$
|
35,385
|
||||||
As
of December 28, 2008
|
||||||||||||
Patents
and purchased technology
|
$
|
51,398
|
$
|
(31,322
|
)
|
$
|
20,076
|
|||||
Tradenames
|
2,501
|
(1,685
|
)
|
816
|
||||||||
Customer
relationships and other
|
27,456
|
(8,858
|
)
|
18,598
|
||||||||
$
|
81,355
|
$
|
(41,865
|
)
|
$
|
39,490
|
2009
(remaining nine months)
|
$
|
12,182
|
||
2010
|
14,656
|
|||
2011
|
4,546
|
|||
2012
|
3,896
|
|||
Thereafter
|
105
|
|||
$
|
35,385
|
March 29, 2009
|
||||||||||||||||
(In thousands)
|
Level 1
|
Level 2
|
Level 3
|
Total
|
||||||||||||
Asset
|
||||||||||||||||
Money
market funds
|
$
|
186,462
|
$
|
—
|
$
|
2,297
|
$
|
188,759
|
||||||||
Bank
notes
|
16,631
|
—
|
—
|
16,631
|
||||||||||||
Corporate
securities
|
—
|
—
|
18,971
|
18,971
|
||||||||||||
Total
available-for-sale securities
|
$
|
203,093
|
$
|
—
|
$
|
21,268
|
$
|
224,361
|
December 28, 2008
|
||||||||||||||||
(In thousands)
|
Level 1
|
Level 2
|
Level 3
|
Total
|
||||||||||||
Asset
|
||||||||||||||||
Money
market funds
|
$
|
227,190
|
$
|
—
|
$
|
7,185
|
$
|
234,375
|
||||||||
Bank
notes
|
49,610
|
—
|
—
|
49,610
|
||||||||||||
Corporate
securities
|
—
|
9,994
|
23,577
|
33,571
|
||||||||||||
Total
available-for-sale securities
|
$
|
276,800
|
$
|
9,994
|
$
|
30,762
|
$
|
317,556
|
|
·
|
5
years to liquidity;
|
|
·
|
continued
receipt of contractual interest which provides a premium spread for failed
auctions; and
|
|
·
|
discount
rates ranging from 4.5% to 6.3%, which incorporates a spread for both
credit and liquidity risk.
|
(In thousands)
|
Money Market
Funds
|
Auction Rate Securities
|
||||||
Balance
at December 28, 2008
|
$
|
7,185
|
$
|
23,577
|
||||
Sales
and distributions (1)
|
(3,650
|
)
|
(4,526
|
)
|
||||
Impairment
loss recorded in “Other, net”
|
(1,238
|
)
|
(80
|
)
|
||||
Balance
at March 29, 2009 (2)
|
$
|
2,297
|
$
|
18,971
|
(1)
|
The
Company sold an auction rate security with a carrying value of $4.5
million for $4.6 million to a third-party outside of the auction
process and received distributions of $3.7 million from the Reserve
Funds.
|
(2)
|
On
April 17, 2009, the Company received distributions of $1.1 million from
the Reserve Funds.
|
(In thousands)
|
Auction Rate Securities
|
|||
Balance
at December 31, 2007
|
$
|
—
|
||
Transfers
from Level 2 to Level 3
|
29,050
|
|||
Purchases
|
10,000
|
|||
Unrealized
loss included in other comprehensive income
|
(1,445
|
)
|
||
Balance
at March 30, 2008
|
$
|
37,605
|
(In thousands)
|
March 29,
2009
|
December 28,
2008
|
||||||
Included
in:
|
||||||||
Cash
equivalents
|
$
|
18,631
|
$
|
101,523
|
||||
Short-term
restricted cash and cash equivalents(1)
|
12,663
|
13,240
|
||||||
Short-term
investments
|
2,297
|
17,179
|
||||||
Long-term
restricted cash and cash equivalents(1, 2)
|
171,799
|
162,037
|
||||||
Long-term
investments
|
18,971
|
23,577
|
||||||
$
|
224,361
|
$
|
317,556
|
(1)
|
The
Company provided security in the form of cash collateralized bank standby
letters of credit for advance payments received from
customers.
|
(2)
|
In
January 2009 and December 2008, the Company borrowed Malaysian Ringgit
185.0 million and 190.0 million, respectively, or approximately $51.2
million and $52.7 million, respectively, from the Malaysian Government
under its facility agreement to finance the construction of its planned
third solar cell manufacturing facility in
Malaysia.
|
2009
(remaining nine months)
|
$
|
92,546
|
||
2010
|
161,414
|
|||
2011
|
121,564
|
|||
2012
|
72,694
|
|||
$
|
448,218
|
(in thousands)
|
Workforce
Reduction
|
|||
Balance
as of December 28, 2008
|
$ | — | ||
Restructuring
charges
|
1,185 | |||
Cash
payments
|
(1,029 | ) | ||
Balance
as of March 29, 2009
|
$ | 156 |
Three
Months Ended
|
||||
(in thousands)
|
March 29, 2009
|
|||
Cost
of systems revenue
|
$ | 179 | ||
Cost
of components revenue
|
28 | |||
Research
and development
|
77 | |||
Sales,
general and administrative
|
901 | |||
Total
restructuring charges
|
$ | 1,185 |
2009
(remaining nine months)
|
$
|
4,096
|
||
2010
|
4,932
|
|||
2011
|
3,642
|
|||
2012
|
2,814
|
|||
2013
|
2,756
|
|||
Thereafter
|
14,597
|
|||
$
|
32,837
|
2009
(remaining nine months)
|
$
|
376,790
|
||
2010
|
519,550
|
|||
2011
|
546,438
|
|||
2012
|
359,223
|
|||
2013
|
277,531
|
|||
Thereafter
|
2,028,257
|
|||
$
|
4,107,789
|
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Balance
at the beginning of the period
|
$
|
28,062
|
$
|
17,194
|
||||
Accruals
for warranties issued during the period
|
3,677
|
4,899
|
||||||
Settlements
made during the period
|
(1,173
|
)
|
(2,576
|
)
|
||||
Balance
at the end of the period
|
$
|
30,566
|
$
|
19,517
|
2009
(remaining nine months)
|
$
|
20,589
|
||
2010
|
22,667
|
|||
2011
|
14,686
|
|||
2012
|
1,898
|
|||
$
|
59,840
|
As of
|
||||||||||||||||
March 29, 2009
|
December 28, 2008
|
|||||||||||||||
(In thousands)
|
Face Value
|
Fair Value*
|
Face Value
|
Fair Value*
|
||||||||||||
1.25%
debentures
|
$
|
198,608
|
$
|
151,190
|
$
|
198,608
|
$
|
143,991
|
||||||||
0.75%
debentures
|
225,000
|
187,875
|
225,000
|
166,747
|
||||||||||||
Total
convertible debt
|
$
|
423,608
|
$
|
339,065
|
$
|
423,608
|
$
|
310,738
|
*
|
The
fair value of the convertible debt was determined based on quoted market
prices as reported by an independent pricing
source.
|
Three Months Ended
|
||||||||
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Net
income (loss)
|
$
|
(4,786
|
)
|
$
|
11,999
|
|||
Other
comprehensive income:
|
||||||||
Translation
adjustment
|
(16,608
|
)
|
10,405
|
|||||
Unrealized
gain (loss) on investments, net of tax
|
8
|
(1,471
|
)
|
|||||
Unrealized
gain (loss) on derivatives, net of tax
|
22,534
|
(1,456
|
)
|
|||||
Total
comprehensive income
|
$
|
1,148
|
$
|
19,477
|
(In thousands)
|
Balance Sheet Location
|
Significant Other
Observable Inputs
(Level 2)
|
||||
Asset
|
||||||
Derivatives
not designated as hedging instruments under SFAS No.
133
|
||||||
Balance
sheet hedges
|
||||||
Foreign
currency forward exchange contracts
|
Prepaid
expenses and other current assets
|
$
|
2,173
|
|||
Liability
|
||||||
Derivatives
not designated as hedging instruments under SFAS No.
133
|
||||||
Balance
sheet hedges
|
||||||
Foreign
currency forward exchange contracts
|
Accrued
liabilities
|
$
|
9,940
|
|||
Derivatives
designated as hedging instruments under SFAS No. 133
|
||||||
Cash
flow hedges
|
||||||
Foreign
currency forward exchange contracts
|
Accrued
liabilities
|
$
|
7,856
|
|||
Foreign
currency option contracts
|
Accrued
liabilities
|
485
|
||||
$
|
8,341
|
Unrealized Loss Recognized in OCI (Effective
Portion)
|
Loss Reclassified from OCI to Cost of Revenue
(Effective Portion)
|
Loss Recognized in Other, Net on Derivatives
(Ineffective Portion and Amount Excluded from Effectiveness
Testing)
|
||||||||
As
of
|
Three
Months Ended
|
Three
Months Ended
|
||||||||
(In thousands)
|
March 29,
2009
|
March 29,
2009
|
March 29,
2009
|
|||||||
Cash
flow hedges
|
||||||||||
Foreign
currency forward exchange contracts
|
$ | (3,551 | ) | $ | (125 | ) | $ | (1,478 | ) | |
Foreign
currency option contracts
|
— | — | (485 | ) | ||||||
$ | (3,551 | ) | $ | (125 | ) | $ | (1,963 | ) |
(In
thousands)
|
||||
Derivatives
not designated as hedging instruments under SFAS No.
133
|
||||
Balance
sheet hedges
|
||||
Foreign
currency forward exchange contracts
|
$ | (1,838 | ) |
As of
|
||||||||
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Stock
options
|
2,089
|
17
|
||||||
Restricted
stock units
|
332
|
412
|
Three Months Ended
|
||||||||
(In thousands, except per share
amounts)
|
March 29,
2009
|
March 30,
2008
|
||||||
Basic
net income (loss) per share
|
||||||||
Net
income (loss)
|
$ |
(4,786
|
)
|
$ |
11,999
|
|||
Less: Undistributed
earnings allocated to unvested restricted stock
awards(1)
|
—
|
187
|
||||||
Net
income (loss) available to common stockholders
|
$ |
(4,786
|
)
|
$ |
11,812
|
|||
Basic
weighted-average common shares
|
83,749
|
78,965
|
||||||
Net
income (loss) per share
|
$ |
(0.06
|
)
|
$ |
0.15
|
|||
Diluted
net income (loss) per share
|
||||||||
Net
income (loss)
|
$ |
(4,786
|
)
|
$ |
11,999
|
|||
Less: Undistributed
earnings allocated to unvested restricted stock
awards(1)
|
—
|
178
|
||||||
Net
income (loss) available to common stockholders
|
$ |
(4,786
|
)
|
$ |
11,821
|
|||
Basic
weighted-average common shares
|
83,749
|
78,965
|
||||||
Effect
of dilutive securities:
|
||||||||
Stock
options
|
—
|
3,038
|
||||||
Restricted
stock units
|
—
|
39
|
||||||
1.25%
debentures
|
—
|
960
|
||||||
Diluted
weighted-average common shares
|
83,749
|
83,002
|
||||||
Net
income (loss) per share
|
$ |
(0.06
|
)
|
$ |
0.14
|
Three Months Ended
|
||||||||
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Cost
of systems revenue
|
$
|
298
|
$
|
2,511
|
||||
Cost
of components revenue
|
525
|
1,203
|
||||||
Research
and development
|
1,431
|
811
|
||||||
Sales,
general and administrative
|
7,229
|
9,983
|
||||||
Total
stock-based compensation expense
|
$
|
9,483
|
$
|
14,508
|
Three Months Ended
|
||||||||
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Employee
stock options
|
$
|
1,028
|
$
|
1,187
|
||||
Restricted
stock awards and units
|
10,513
|
7,901
|
||||||
Shares
and options released from re-vesting restrictions
|
168
|
6,006
|
||||||
Change
in stock-based compensation capitalized in inventory
|
(2,226
|
)
|
(586
|
)
|
||||
Total
stock-based compensation expense
|
$
|
9,483
|
$
|
14,508
|
Shares
(in thousands)
|
Weighted-
Average
Exercise
Price Per Share
|
|||||||
Outstanding
as of December 28, 2008
|
2,545
|
$
|
8.96
|
|||||
Exercised
|
(118
|
)
|
3.36
|
|||||
Forfeited
|
(24
|
)
|
28.83
|
|||||
Outstanding
as of March 29, 2009
|
2,403
|
9.03
|
||||||
Exercisable
as of March 29, 2009
|
1,625
|
4.26
|
Stock Options
|
Restricted Stock Awards and
Units
|
|||||||||||||||
Shares
(in thousands)
|
Weighted-
Average
Exercise Price
Per Share
|
Shares
(in thousands)
|
Weighted-
Average
Grant Date Fair
Value Per Share
|
|||||||||||||
Outstanding
as of December 28, 2008
|
1,113
|
$
|
14.82
|
1,604
|
$
|
69.71
|
||||||||||
Granted
|
—
|
—
|
1,156
|
27.94
|
||||||||||||
Vested(1)
|
(311
|
)
|
3.28
|
(211
|
)
|
63.40
|
||||||||||
Forfeited
|
(24
|
)
|
28.83
|
(151
|
)
|
70.83
|
||||||||||
Outstanding
as of March 29, 2009
|
778
|
19.00
|
2,398
|
49.90
|
(1)
|
Restricted
stock awards and units vested include shares withheld on behalf of
employees to satisfy the minimum statutory tax withholding
requirements.
|
Three Months Ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Revenue
by geography:
|
||||||||
United
States
|
61
|
%
|
21
|
%
|
||||
Europe:
|
||||||||
Spain
|
4
|
|
52
|
|
||||
Italy
|
15
|
|
3
|
|
||||
Germany
|
11
|
|
8
|
|
||||
Other
|
5
|
|
4
|
|
||||
Rest
of world
|
4
|
|
12
|
|
||||
100
|
%
|
100
|
%
|
|||||
Revenue
by segment:
|
||||||||
Systems
|
50
|
%
|
65
|
%
|
||||
Components
|
50
|
|
35
|
|
||||
100
|
%
|
100
|
%
|
|||||
Gross
margin by segment:
|
||||||||
Systems
|
17
|
%
|
20
|
%
|
||||
Components
|
28
|
%
|
19
|
%
|
|
Three Months Ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
||||||||
Significant Customers |
Business
Segment
|
||||||||
Florida
Power & Light Company (“FPL”)
|
Systems
|
26%
|
—%
|
||||||
Sedwick
Corporate, S.L.
|
Systems
|
*
|
30%
|
||||||
Naturener
Group
|
Systems
|
*
|
13%
|
•
|
superior
performance, including the ability to generate up to 50% more power per
unit area;
|
•
|
superior
aesthetics, with our uniformly black surface design that eliminates highly
visible reflective grid lines and metal interconnect ribbons;
and
|
•
|
more
efficient use of silicon, a key raw material used in the manufacture of
solar cells.
|
•
|
superior
performance delivered by maximizing energy delivery and financial return
through systems technology design;
|
•
|
superior
systems design to meet customer needs and reduce cost, including
non-penetrating, fast roof installation technologies;
and
|
•
|
superior
channel breadth and delivery capability including turnkey
systems.
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Systems
|
$
|
106,097
|
$
|
178,851
|
||||
Components
|
107,690
|
94,850
|
||||||
Total
revenue
|
$
|
213,787
|
$
|
273,701
|
Three Months Ended
|
|||||||||
March 29,
2009
|
March 30,
2008
|
||||||||
Significant
customers
|
Business
Segment
|
||||||||
FPL
|
Systems
|
26%
|
—%
|
||||||
Sedwick
Corporate, S.L.
|
Systems
|
*
|
30%
|
||||||
Naturener
Group
|
Systems
|
*
|
13%
|
Three Months Ended
|
||||||||||||||||||||||
Systems
|
Components
|
Consolidated
|
||||||||||||||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
March 29,
2009
|
March 30,
2008
|
March 29,
2009
|
March 30,
2008
|
||||||||||||||||
Amortization
of intangible assets
|
$
|
1,841
|
$
|
2,168
|
$
|
952
|
$
|
1,044
|
$
|
2,793
|
$
|
3,212
|
||||||||||
Stock-based
compensation
|
298
|
2,511
|
525
|
1,203
|
823
|
3,714
|
||||||||||||||||
Impairment
of long-lived assets
|
—
|
1,343
|
—
|
4,146
|
—
|
5,489
|
||||||||||||||||
Non-cash
interest expense
|
230
|
36
|
270
|
52
|
500
|
88
|
||||||||||||||||
Factory
pre-operating costs
|
236
|
267
|
355
|
386
|
591
|
653
|
||||||||||||||||
Restructuring
charges
|
179
|
—
|
28
|
—
|
207
|
—
|
||||||||||||||||
Materials
and other cost of revenue
|
85,567
|
136,939
|
75,558
|
70,411
|
161,125
|
207,350
|
||||||||||||||||
Total
cost of revenue
|
$
|
88,351
|
$
|
143,264
|
$
|
77,688
|
$
|
77,242
|
$
|
166,039
|
$
|
220,506
|
||||||||||
Total
cost of revenue as a percentage of revenue
|
83
|
%
|
80
|
%
|
72
|
%
|
81
|
%
|
78
|
%
|
81
|
%
|
||||||||||
Total
gross margin percentage
|
17
|
%
|
20
|
%
|
28
|
%
|
19
|
%
|
22
|
%
|
19
|
%
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Research and
development
|
$
|
7,964
|
$
|
4,642
|
||||
As
a percentage of revenue
|
4
|
%
|
2
|
%
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Sales,
general and administrative
|
$
|
42,283
|
$
|
33,858
|
||||
As
a percentage of revenue
|
20
|
%
|
12
|
%
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Interest
income
|
$
|
1,184
|
$
|
4,147
|
||||
As
a percentage of revenue
|
1
|
%
|
2
|
%
|
||||
Interest
expense
|
$
|
6,121
|
$
|
6,297
|
||||
As
a percentage of revenue
|
3
|
%
|
2
|
%
|
||||
Other,
net
|
$
|
(7,157
|
) |
$
|
715
|
|||
As
a percentage of revenue
|
3
|
%
|
—
|
%
|
Three Months Ended
|
||||||||
(In
thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Gain
(loss) on derivatives and foreign exchange
|
$
|
(5,778
|
)
|
$
|
756
|
|||
Impairment
of investments
|
(1,318
|
)
|
—
|
|||||
Other
income (expense), net
|
(61
|
)
|
(41
|
)
|
||||
Total
other, net
|
$
|
(7,157
|
)
|
$
|
715
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Income
tax provision (benefit)
|
$
|
(8,562
|
)
|
$
|
1,805
|
|||
As
a percentage of revenue
|
4
|
%
|
1
|
%
|
Three Months Ended
|
||||||||
(Dollars in thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Equity
in earnings of unconsolidated investees, net of
taxes
|
$
|
1,245
|
$
|
544
|
||||
As
a percentage of revenue
|
1
|
%
|
0
|
%
|
Three Months Ended
|
||||||||
(In thousands)
|
March 29,
2009
|
March 30,
2008
|
||||||
Net
cash used in operating activities
|
$
|
(53,125
|
) |
$
|
(69,361
|
)
|
||
Net
cash used in investing activities
|
(43,109
|
) |
(92,313
|
)
|
||||
Net
cash provided by financing activities
|
49,269
|
2,165
|
Payments Due by Period
|
||||||||||||||||||||
(In thousands)
|
Total
|
2009
(remaining
9 months)
|
2010 – 2011
|
2012 – 2013
|
Beyond
2013
|
|||||||||||||||
Customer
advances, including interest
|
$
|
101,761
|
$
|
11,577
|
$
|
26,184
|
$
|
16,000
|
$
|
48,000
|
||||||||||
Convertible
debt, including interest
|
498,922
|
3,128
|
8,340
|
8,340
|
479,114
|
|||||||||||||||
Loan
from Malaysian Government
|
103,850
|
—
|
—
|
—
|
103,850
|
|||||||||||||||
Lease
commitments
|
32,837
|
4,096
|
8,574
|
5,570
|
14,597
|
|||||||||||||||
Utility
obligations
|
750
|
—
|
—
|
—
|
750
|
|||||||||||||||
Royalty
obligations
|
154
|
154
|
—
|
—
|
—
|
|||||||||||||||
Non-cancelable
purchase orders
|
115,632
|
114,982
|
650
|
—
|
—
|
|||||||||||||||
Purchase
commitments under agreements
|
3,992,157
|
261,808
|
1,065,338
|
636,754
|
2,028,257
|
|||||||||||||||
Total
|
$
|
4,846,063
|
$
|
395,745
|
$
|
1,109,086
|
$
|
666,664
|
$
|
2,674,568
|
Item 3.
|
Quantitative
and Qualitative Disclosure About Market
Risk
|
Item 4.
|
Controls
and Procedures
|
Item 6.
|
Exhibits
|
Exhibit
Number
|
Description
|
|
10.1†*
|
Long-Term
Supply Agreement, dated January 6, 2009, by and between SunPower
Corporation and Hemlock Semiconductor, LLC.
|
|
10.2*
|
Amendment
to Long-Term Supply Agreement, dated January 6, 2009, by and among
SunPower Corporation, Hemlock Semiconductor, LLC, and SunPower Philippines
Manufacturing Limited.
|
|
10.3*
|
Amended
and Restated SunPower Corporation Annual Key Employee Bonus
Plan.
|
|
10.4*
|
Amended
and Restated SunPower Corporation Key Employee Quarterly Key Initiative
Bonus Plan.
|
|
10.5*
|
Amendment
to Credit Agreement, dated February 25, 2009, by and between SunPower
Corporation and Wells Fargo Bank, National Association.
|
|
10.6*
|
Amendment
to Second Amended and Restated SunPower Corporation 2005 Stock Incentive
Plan dated March 12, 2009.
|
|
10.7*†
|
Amended
and Restated Credit Agreement, dated March 20, 2009, by and between
SunPower Corporation and Wells Fargo Bank, National
Association.
|
|
10.8*
|
Continuing
Guaranty, dated March 20, 2009, by and between SunPower North America, LLC
and Wells Fargo Bank, National Association.
|
|
10.9*†
|
Amendment
Three to Turnkey Engineering, Procurement and Construction Agreement,
dated March 26, 2009, by and between SunPower Corporation, Systems and
Florida Power and Light Company.
|
|
31.1*
|
Certification
by Chief Executive Officer Pursuant to Rule
13a-14(a)/15d-14(a).
|
|
31.2*
|
Certification
by Chief Financial Officer Pursuant to Rule
13a-14(a)/15d-14(a).
|
|
32.1*
|
Certification
Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of
2002.
|
SUNPOWER
CORPORATION
|
||
Dated:
May 8, 2009
|
By:
|
/s/ DENNIS V.
ARRIOLA
|
Dennis
V. Arriola
|
||
Senior
Vice President and
|
||
Chief
Financial Officer
|
Exhibit
Number
|
Description
|
|
10.1†*
|
Long-Term
Supply Agreement, dated January 6, 2009, by and between SunPower
Corporation and Hemlock Semiconductor, LLC.
|
|
10.2*
|
Amendment
to Long-Term Supply Agreement, dated January 6, 2009, by and among
SunPower Corporation, Hemlock Semiconductor, LLC, and SunPower Philippines
Manufacturing Limited.
|
|
10.3*
|
Amended
and Restated SunPower Corporation Annual Key Employee Bonus
Plan.
|
|
10.4*
|
Amended
and Restated SunPower Corporation Key Employee Quarterly Key Initiative
Bonus Plan.
|
|
10.5*
|
Amendment
to Credit Agreement, dated February 25, 2009, by and between SunPower
Corporation and Wells Fargo Bank, National Association.
|
|
10.6*
|
Amendment
to Second Amended and Restated SunPower Corporation 2005 Stock Incentive
Plan dated March 12, 2009.
|
|
10.7*†
|
Amended
and Restated Credit Agreement, dated March 20, 2009, by and between
SunPower Corporation and Wells Fargo Bank, National
Association.
|
|
10.8*
|
Continuing
Guaranty, dated March 20, 2009, by and between SunPower North America, LLC
and Wells Fargo Bank, National Association.
|
|
10.9*†
|
Amendment
Three to Turnkey Engineering, Procurement and Construction Agreement,
dated March 26, 2009, by and between SunPower Corporation, Systems and
Florida Power and Light Company.
|
|
31.1*
|
Certification
by Chief Executive Officer Pursuant to Rule
13a-14(a)/15d-14(a).
|
|
31.2*
|
Certification
by Chief Financial Officer Pursuant to Rule
13a-14(a)/15d-14(a).
|
|
32.1*
|
Certification
Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of
2002.
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
|
(a)
|
“Affiliate”
of either party means an entity that controls said party, is controlled by
said party, or is under common control or common ownership with said
party. For purposes of this definition, “control” and
“controlled” mean the possession of the power to direct or cause the
direction of the management and policies of such an entity, whether
through the ownership of voting securities, by contract, by management
agreement or otherwise.
|
(b)
|
“Agreement”
means this Long-Term Supply
Agreement.
|
(c)
|
“Buyer”
means SunPower Corporation.
|
(d)
|
“Effective
Date” means the date on which execution of this Agreement has been
completed by both parties.
|
(e)
|
“Gross
Price” for each Product means the Gross Price per kilogram for each year
of this Agreement as set forth in Section 4 hereof and Tables II A and B,
and Tables III A - I, of Exhibit B, subject to the adjustments set
forth in this Agreement.
|
(f)
|
“Net
Price” for each Product means the Gross Price per kilogram minus the
Advance Payment per kilogram for each year of this Agreement set forth in
Table I of Exhibit B, subject to the adjustments set forth in this
Agreement.
|
(g)
|
“Net
Remaining Advance Payment Balance” for each calendar year is set forth in
Table 1 of Exhibit B.
|
(h)
|
“Seller”
means Hemlock Semiconductor, LLC.
|
(a)
|
Buyer
may transfer the Products without prior written consent of Seller to
wholly-owned or majority-owned subsidiaries of the Buyer (hereinafter
together with Buyer referred to as the “Buyer Group”) for Buyer’s
manufacturing purposes in solar applications only, and for no other
purpose; and
|
(b)
|
Buyer
may transfer the Products without prior written consent of the Seller to
persons who have entered into supply agreements with a Buyer Group member
to produce ingots and/or wafers from such transferred Products for such
Buyer Group member, for Buyer’s manufacturing purposes in solar
applications. Buyer shall notify Seller of each such transfer,
provide copies of the Buyer Group transfer agreements upon entering into
such agreements and notify Seller upon termination of such
agreements.
|
(a)
|
Default
by Seller-Failure to Supply Product. Upon default by
Seller of its obligation to deliver a material amount of the Contract
Quantity of Product listed on Table I of Exhibit B, and such failure is
not the result of a Force Majeure Event as defined in Section 19 or any
default by Buyer, Buyer may serve a written notice of default upon
Seller. Seller shall have 180 days (commencing on the date
written notice is received by Seller) to cure such default. If
such default is not cured within 180 days, and provided there is no
uncured Buyer default, Buyer at its option may elect to terminate this
Agreement by a second written notice
to
|
(b)
|
Limitation
of Buyer’s Remedies. EXCEPT AS PROVIDED IN SECTION
11(a), SECTION 14, SECTION 15 AND SECTION 17 HEREOF, NO OTHER REMEDY
(INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR
LOST PROFITS, LOST SALES, INJURY TO PERSON OR PROPERTY, OR ANY OTHER
INCIDENTAL OR CONSEQUENTIAL LOSS) SHALL BE AVAILABLE TO
BUYER.
|
(c)
|
Default
by Buyer. Upon receipt of written notice from Seller of
default by Buyer of its obligation
to:
|
(i)
|
make
any installment of the Advance Payment;
or
|
(ii)
|
comply
with its purchase or take-or-pay obligations;
or
|
(iii)
|
make
payment for the Products;
|
A.
|
payment
by Buyer to Seller of all Advance Payment amounts due under Section 6 and
not yet paid by Buyer to Seller;
and
|
B.
|
retention
of any Net Remaining Advance Payment Balance;
and
|
C.
|
payment
by Buyer to Seller for all Product delivered;
and
|
D.
|
acceleration
of payment by Buyer to Seller for all remaining Contract Quantity of
Product at the Net Price in effect for HSC DMS and/or HS DMS at the time
of Buyer’s default, subject to any price adjustment provided for in this
Agreement, including without limitation, under Section 8 or Section
18.
|
(a)
|
Seller
and Buyer acknowledge and agree that certain information each party has
received or may receive from the other party or from a Seller or Buyer
Affiliate in connection with this Agreement, including information
regarding research, technology, technical specifications, product
developments, marketing plans or conditions, products, business
strategies, and the like, constitutes “Confidential Information” of the
other party and shall be deemed disclosed by the other party to the
receiving party. The purpose for exchanging Confidential
Information is to allow the parties to use Confidential Information solely
for the purpose of meeting their obligations and responsibilities under
this Agreement. The party receiving any Confidential
Information, and its employees, attorneys, financial advisors, officers,
directors, shareholders and members who receive Confidential Information,
shall not, except with the prior written consent of the disclosing party,
(i) use Confidential Information for any purpose other than those purposes
permitted under this Agreement, whether for itself or for the benefit of
another, or (ii) divulge, disclose, publish or communicate, to any person,
firm, corporation or entity, in any manner whatsoever, the terms of this
Agreement or any Confidential Information of the disclosing party;
provided, however, that (i) each party hereto may use, divulge, disclose
or communicate the terms of this Agreement or Confidential Information of
the disclosing party to its Affiliates, members, and/or shareholders, and
Affiliates of those entities, on a “need-to-know” basis, subject to the
provisions of this Section 12, without first obtaining the other party’s
written consent, and (ii) Buyer may use, divulge, disclose or communicate
the terms of this Agreement or Confidential Information of the disclosing
party to persons who have entered into a supply agreement with a Buyer
Group member (as provided in Section 2(b) hereof) on a “need to know”
basis, subject to the provisions of this Section 12, provided that Seller
has consented in writing in advance to such disclosure, which consent
shall not be unreasonably withheld. Each party further agrees,
for itself and for any person to whom a disclosure is permitted and made,
to use the same degree of care to maintain as confidential and to avoid
non-permitted use or disclosure of the Confidential Information disclosed
to it under this Agreement as it employs with respect to its own
confidential information, but at all times shall use at least reasonable
care to
|
protect against a non-permitted use or disclosure. Confidential Information does not and shall not include information that: |
(i)
|
was
already known to the receiving party at the time such Confidential
Information is disclosed by the other
party;
|
(ii)
|
was
or became publicly known through no wrongful act of the receiving
party;
|
(iii)
|
was
rightfully received from a third party without
restriction;
|
(iv)
|
was
independently developed by the receiving party;
or
|
(v)
|
was
required for legal or financial reporting purposes to be disclosed;
provided, however, that the party being required to disclose shall, if
circumstances permit, provide advance notice to the other party and shall
allow the other party a reasonable opportunity to oppose such disclosure,
if appropriate, and assist the other party, at such party’s sole expense,
in obtaining a protective order or other method of maintaining
confidentiality of such Confidential
Information.
|
(b)
|
The
parties further acknowledge and agree that certain of the Confidential
Information that has been or will be provided to Buyer in connection with
this Agreement concerns technical information related to the Products, the
design, composition, performance, characteristics, manufacture, and use of
the Products, and applications for the Products, including research, test
results, and test methodologies, and also constitutes or reflects trade
secrets of Seller or an Affiliate of Seller (herein collectively “Seller’s
Trade Secrets”). Buyer acknowledges and agrees that Seller’s
Trade Secrets are owned by Seller or an Affiliate of Seller, are secret,
are being provided to Buyer in confidence, are the subject of reasonable
efforts by Seller to keep them secret, and that Seller has derived value
because of their secrecy, as evidenced in part by the parties entering
into this Agreement. Buyer agrees for itself and any person to
whom a disclosure is permitted and made, to use the same degree of care to
maintain as confidential and to avoid any non-permitted use or disclosure
of Seller’s Trade Secrets as it employs with respect to its own trade
secret information, but at all times shall use at least reasonable care to
protect Seller’s Trade Secrets against non-permitted use or
disclosure. The obligations not to use and not to disclose
Seller’s Trade Secrets shall continue during the Term of this Agreement
and, with respect to each Seller Trade Secret, for so long thereafter as
Seller and/or Seller’s Affiliate maintains such Trade Secret as a trade
secret, and thus survive the termination or expiration of this
Agreement.
|
(c)
|
Buyer
will be liable for any breach of this Section 12 by any Buyer Group
members or any person to whom Buyer is permitted to disclose Seller’s
Confidential Information and/or Seller’s Trade Secrets. In the
event of a breach or a threatened breach of this Section 12, Buyer
acknowledges and agrees that Seller will face irreparable injury which
cannot be completely or adequately remedied by monetary damages and that
Seller shall be entitled, in addition to remedies otherwise available at
law or in equity, to a temporary restraining order, a preliminary
injunction, and a final injunction enjoining such breach or threatened
breach.
|
(d)
|
Seller
will be liable for any breach of this Section 12 by any person to whom
Seller is permitted to disclose Buyer’s Confidential
Information. In the event of a breach or a threatened breach of
this Section 12, Seller acknowledges and agrees that Buyer will face
irreparable injury which cannot be completely or adequately remedied by
monetary damages and that Buyer shall be entitled, in addition to remedies
otherwise available at law or in equity, to a temporary restraining order,
a preliminary injunction, and a final injunction enjoining such breach or
threatened breach.
|
(a)
|
Organization
and Good Standing. Such party is a corporation or
limited liability company, as applicable, duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization
and has the requisite corporate or limited liability company, as
applicable, power authority to own, lease and operate its properties and
to carry on its business as now conducted. Such party is not in
default under or in violation of any provisions of its organizational
documents.
|
(b)
|
Authority
and Enforceability. Such party has all corporate or
limited liability company, as applicable, power and authority to execute
and deliver this Agreement and perform its obligations
hereunder. The execution and delivery by such party of this
Agreement and the performance by such party of the transactions
contemplated hereby have each been duly and validly authorized by all
necessary corporate or limited liability company, as applicable,
action. This Agreement has been duly executed and delivered by
such party and, assuming due execution and delivery by the other party,
constitutes a valid and binding obligation of such party, enforceable
against it in accordance with its
terms.
|
(c)
|
No
Conflicts; Consents. The execution and delivery of this
Agreement by such party, the performance by it of its obligations
hereunder, and the compliance by it with the terms and conditions hereof,
will not: (i) violate any provision of its organizational documents, or
(ii) violate any law, rule, regulation, accounting principle, financial
disclosure obligation, or order of any court or governmental authority or
agency that is applicable to or binding on such party. The
execution and delivery by such party of this Agreement and the performance
by such party of its obligations hereunder do not require: (a) any
authorization, consent or approval of, or notice to, any person or entity
under any contract or agreement to which such party is party; or (b) any
authorization, consent, approval, certification, license or order of, or
any filing with or notice to, any governmental
entity.
|
(d)
|
Legal
Proceedings. There are no legal proceedings pending or,
to the knowledge of such party, threatened before any governmental
department, commission, board, agency, or instrumentality that would
prevent the execution and delivery by such party of this Agreement, the
consummation of the transactions contemplated hereby or the performance by
such party of its obligations hereunder, or that would otherwise adversely
affect the validity or enforceability of this Agreement, nor, to the
knowledge of such party, is there any reasonable basis for any such
proceeding.
|
|
If
to Seller to:
|
Hemlock
Semiconductor, LLC
|
|
12334
Geddes Road
|
|
Hemlock,
Michigan 48626
|
|
Attn.:
Vice President of Marketing
|
|
Fax
No.: (989) 642-7400
|
|
With
a copy to:
|
Hemlock
Semiconductor, LLC
|
|
12334
Geddes Road
|
|
Hemlock,
Michigan 48626
|
|
Attn.:
General Counsel/Legal Department
|
|
Fax
No.: (989) 642-7400
|
|
If
to Buyer to:
|
SunPower
Corporation
|
|
Attn: Jon
Whiteman
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
|
With
a copy to:
|
SunPower
Corporation
|
|
Attn: General
Counsel
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
SUNPOWER
CORPORATION
|
HEMLOCK
SEMICONDUCTOR, LLC
|
By: /s/ Marty T. Neese
|
By: /s/ Gary R. Homan
|
Printed
Name: Marty T. Neese
|
Printed
Name: Gary R. Homan
|
Title:
Chief Operating Officer
|
Title:
Vice President
|
Date: January 9, 2009
|
Date: January 6,
2009
|
Total
Contract Quantity
(in
Kilograms)
***
|
Total
Advance Payment
$***
|
||
Calendar
Year
|
Contract
Quantity
Per
Year
(in
Kilograms)
|
Advance
Payment
Per
Kilogram
|
Net
Remaining Advance
Payment
at Year-End
(to
be Prorated for Buyer Payments for Contract Quantity)
|
2011
|
***
|
$***
|
$***
**
|
2012
|
***
|
$***
|
$***
|
2013
|
***
|
$***
|
$***
|
2014
|
***
|
$***
|
$***
|
2015
|
***
|
$***
|
$***
|
2016
|
***
|
$***
|
$***
|
2017
|
***
|
$***
|
$***
|
2018
|
***
|
$***
|
$***
|
2019
|
***
|
$***
|
$***
|
2020
|
***
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2012
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2013
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2014
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2015
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2016
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2017
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2018
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2019
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
2020
|
HS
DMS or HSC DMS
|
Chunk
|
Bulk
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2012
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2013
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2014
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2015
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2016
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2017
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2018
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2019
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
2020
|
HS
SGB OR HSC SGB
|
Chunk
|
10
kg Bags
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2012
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2013
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2014
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2015
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2016
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2017
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2018
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2019
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
2020
|
HS
DMSL or HSC DMSL
|
Big
Piece
|
10
kg Bags
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2012
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2013
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2014
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2015
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2016
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2017
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2018
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2019
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
2020
|
HS
900 or HSC 900
|
Chunk
|
Bulk
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2012
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2013
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2014
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2015
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2016
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2017
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2018
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2019
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2020
|
HS
840 or HSC 840
|
Chips
|
10
kg Bags
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2012
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2013
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2014
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2015
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2016
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2017
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2018
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2019
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
2020
|
HS
850 or HSC 850
|
Chips
|
10
kg Bags
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2012
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2013
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2014
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2015
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2016
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2017
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2018
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2019
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
2020
|
HS
SCE or HSC SCE
|
Carbon
Ends
|
Bulk
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2012
|
HC
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2013
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2014
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2015
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2016
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2017
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2018
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2019
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
2020
|
HS
PTBS or HSC PTBS
|
Fall-Out
|
Bulk
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2012
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2013
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2014
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2015
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2016
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2017
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2018
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2019
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
2020
|
HS
PCE or HSC PCE
|
Etched
CE
|
10
kg Bags
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2012
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2013
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2014
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2015
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2016
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2017
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2018
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2019
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2020
|
HS
P75 or HSC P75
|
Processed
Fines
|
Drum
|
$***
|
$***
|
Calendar
Year
|
Product
|
Type
|
Package
|
Gross
Price Per kg
|
Net
Price Per kg
|
2011
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2012
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2013
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2014
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2015
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2016
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2017
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2018
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2019
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
2020
|
HS
P80 or HSC P80
|
Processed
Fines
|
Drum
|
$***
|
$***
|
Example of Electricity Cost
Increases
|
||||||||||||
2009
|
2010
|
2011
|
2012
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
2019
|
2020
|
|
Electricity
Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
Cumulative
Electricity Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
Actual
Electricity Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
Cumulative
Average Actual Electricity Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
Percentage
Difference:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
Price
Change / KG:
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
Example of Labor Cost
Increases
|
|||||||||||||||||||||||||
2009
|
2010
|
2011
|
2012
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
2019
|
2020
|
||||||||||||||
Labor
Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|||||||||||||
Cumulative
Labor Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|||||||||||||
Actual
Labor Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|||||||||||||
Cumulative
Actual Labor Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|||||||||||||
Percentage
Difference:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|||||||||||||
Price
Change / KG:
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
Example of Silicon Metal Cost
Increases
|
|||||||||||||
2009
|
2010
|
2011
|
2012
|
2013
|
2014
|
2015
|
2016
|
2017
|
2018
|
2019
|
2020
|
||
Silicon
Metal Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|
Cumulative
Silicon Metal Base Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|
Actual
Silicon Metal Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|
Cumulative
Actual Silicon Metal Percentage:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|
Percentage
Difference:
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
***%
|
|
Price
Change / KG:
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
$***
|
|
If
to Seller to:
|
Hemlock
Semiconductor, LLC
|
|
12334
Geddes Road
|
|
Hemlock,
Michigan 48626
|
|
Attn.:
Vice President of Marketing
|
|
Fax
No.: (989) 642-7400
|
|
With
a copy to:
|
Hemlock
Semiconductor, LLC
|
|
12334
Geddes Road
|
|
Hemlock,
Michigan 48626
|
|
Attn.:
General Counsel/Legal Department
|
|
Fax
No.: (989) 642-7400
|
|
If
to Parent to:
|
SunPower
Corporation
|
|
Attn: Jon
Whiteman
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
|
With
a copy to:
|
SunPower
Corporation
|
|
Attn: General
Counsel
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
|
If
to Subsidiary to:
|
SunPower
Corporation
|
|
Attn: Jon
Whiteman
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
|
With
a copy to:
|
SunPower
Corporation
|
|
Attn: General
Counsel
|
|
3939
North First Street
|
|
San
Jose, California 95134
|
|
Fax
No.: (408) 240-5402
|
SUBSIDIARY:
SUNPOWER
PHILIPPINES MANUFACTURING LIMITED
/s/
Marty T.
Neese
By: Marty
T. Neese
Title:
C.O.O.
|
PARENT:
SUNPOWER
CORPORATION
/s/
Marty T. Neese
By:
Marty T. Neese
Title:
C.O.O.
|
SELLER:
HEMLOCK
SEMICONDUCTOR, LLC
/s/
Gary R.
Homan
By: Gary
R. Homan
Title:
Vice President
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|
1.1
The objective of this Key Employee Quarterly Key Initiative Bonus Plan
(“KI Plan”) is to provide incentives to key employees of SunPower
Corporation and its subsidiaries (collectively, the “Company”) based on
the Company’s quarterly corporate milestones and an individual's
performance against set individual key initiatives (KIs). The
KI Plan shall be administered by the Compensation Committee appointed by
the Board of Directors of SunPower
Corporation.
|
|
2.1
This quarterly program will be effective as of January 1,
2009. ”Plan Periods” under the KI Plan will correspond to the
fiscal quarters of the Company.
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4.1
|
KI Target Bonus
Percentages. Each KI Plan participant will be allocated
a KI target bonus expressed as a percentage of his or her base
salary. KI target bonus percentages are set by the Compensation
Committee. The Compensation Committee may, in its discretion,
set maximum caps on the payout amount for KI bonuses. The
Compensation Committee may delegate establishing KI target bonus
percentages to officers of the Company; provided that executive officer KI
target bonus percentages must be approved by the Compensation
Committee.
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|
4.2 KI Plan
Components.
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|
(i)
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Quarterly KI
Score. At the start of each quarter the participant will
formulate with his or her supervisor a list of key initiatives for such
quarter. Each initiative will be allocated a certain number of
points, and the quarterly scorecard shall total 100
points. Following each quarter the participant’s supervisor
will score the participant’s achievement of key initiatives (expressed as
a percentage).
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(ii)
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Company Milestone
Score. With respect to each quarter the Board of
Directors will establish quarterly corporate milestones for such
quarter. Each company milestone will be allocated a certain
number of points. Following each quarter, the executive
officers of the Company will score the achievement of company milestones
(expressed as a percentage).
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|
(iii)PBT
Score. At the start of each quarter the executive
officers will establish an internal profit before tax financial target for
the Company (“Plan PBT”). Following each quarter the actual
profit before tax for such quarter will be determined (“Actual
PBT”).
|
(i)
|
If
the Actual PBT is less than 90% of the Plan PBT, no KI bonus payout will
be made for the quarter.
|
(ii)
|
If
the Actual PBT is equal to or greater than 90% of the Plan PBT, but the
company milestone score is equal to or less than 60%, no KI bonus payout
will be made for the quarter.
|
(iii)
|
If
both the Actual PBT is equal to or greater than 90% AND the company
milestone score is greater than 60%, the quarterly KI bonus will be paid
as follows:
|
(iv)
|
If
both the Actual PBT is equal to or greater than 90% and the company
milestone score is greater than 100%, the quarterly KI bonus may be
prorated and paid above 100%, subject to a maximum cap of
110%.
|
5.1
|
Payout
calculations under the KI Plan will be based on the plan participant's
base salary at the end of the quarter being measured and not the base
salary at the time the milestone and KI portion of the bonus is
paid.
|
5.2
|
In
the event a participant’s KI target bonus percentage is changed during the
quarter, the new KI target bonus will be effective at the beginning of the
immediately following quarter. The participant’s KI payout for
the current quarter shall be based on the KI target bonus in effect at the
beginning of that quarter.
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|
6.1 KI
attainment for the completed quarter and proposed KI for the next quarter
are reviewed at the end of each quarter no later than the third Friday of
the first month of the quarter.
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6.2
|
In
setting KIs, a 0% threshold may be defined for each KI. This
threshold, which could be timing and/or deliverable-based, is a point at
which a KI score starts to be earned. If a participant does not
reach/complete the minimum threshold, such KI will be scored 0%
(zero). Progress beyond the threshold earns the participant a
pro-rated score up to 110%. The score for a particular KI item
cannot exceed 110%. Scoring greater than 100% for a KI item is
usually limited to numeric or quantitative
goals.
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|
6.3
The Chief Executive Officer’s quarterly KI score is the actual corporate
milestone score for such quarter.
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|
7.1
Employment: To
be eligible for any portion of the bonus payment, the participant must be
employed by the Company at the scheduled payment date. A
participant who terminates employment prior to the payment date will be
ineligible for any and all bonuses not yet paid, except as otherwise
provided in this article or any separate agreement approved by the
Compensation Committee.
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|
7.2 New
Hires: New Hires shall be eligible to participate in the
bonus program starting the first of the month following the month of
hire.
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|
7.3
Disability: If
a participant is unable to perform the essential functions of his or her
job with or without a reasonable accommodation and is eligible to receive
disability benefits under the standards used by the Company's disability
benefit plan, the participant will receive a bonus calculated as follows:
the quarter in which the disability begins will be considered a completed
quarter and the KI bonus for that quarter will be paid as though KI
attainment was 100%.
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|
7.4
Retirement: If
a participant retires, i.e. permanent termination of employment with the
Company in accordance with the Company's retirement policies, the
participant will receive a bonus calculated as follows: the quarter in
which the retirement begins will be considered a completed quarter and the
KI bonus for that quarter will be paid as though KI attainment was
100%. Thereafter, quarterly participation
ceases.
|
|
7.5
Death: If
a participant dies, awards will be paid to the beneficiary designated by
the participant or, if no such designation has been made, to the persons
entitled thereto as determined by a court of competent
jurisdiction. The bonus will be calculated as
follows: the quarter in which death occurred will be considered
a completed quarter and the KI bonus for that quarter will be paid as
though KI attainment was 100%. Thereafter, quarterly
participation ceases.
|
|
7.6
Lay-off: If
a participant is terminated by lay-off during a Plan Period, the quarter
in which the lay-off occurred will be considered a completed quarter and
the KI bonus for that quarter will be paid as though KI attainment was
100%. Thereafter, quarterly participation
ceases.
|
|
7.8 All
qualified bonus payments including future scheduled payments pursuant to
Section’s 7.3, 7.4, and 7.5 will be paid in
lump-sum.
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|
7.9
The Chief Executive Officer reserves the right to reduce the bonus award
of a participant on a pro-rata basis to reflect a participant's leave of
absence during the applicable Plan
Period.
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|
8.1
Unless as defined in article 8.4, no right or interest in this KI Plan is
transferable or assignable except by will or laws of descent and
distribution.
|
|
8.2
Participation in this KI Plan does not guarantee any right to continued
employment with the Company.
|
|
8.3
Participation in the KI Plan in a particular Plan Period is not a
guarantee to participate in subsequent Plan
Periods.
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|
8.4
Management reserves the right to discontinue participation of any
participant in this KI Plan, at any time, and for whatever
reasons.
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|
8.5 This KI Plan is
unfunded and the Company does not intend to set up a sinking
fund. Consequently, payments arising out of bonus earned
shall be paid out of the Company's general assets. Each actual
KI bonus shall be paid in cash (or its equivalent value in shares as
determined by the Committee or its designee) in a single lump
sum. Accounts recognized by the Company for book purposes are
not an indication of funds set aside for payment. KI Plan
participants are considered as general creditors of the Company and
the obligation of the Company is purely contractual and is not secured by
any particular Company
asset.
|
|
8.6
The provision of this KI Plan shall not limit the ability of the
Compensation Committee (or its designees) to modify said KI Plan, or adopt
such other plans on matters of compensation, bonus or incentive, which in
its own judgment it deems proper, at any
time.
|
A.
|
Section
4(b)(iii) is amended as follows:
|
B.
|
Section
4(b)(iv) is amended as follows:
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
|
(a)
|
Letter of Credit
Line. Subject to the terms and conditions of this
Agreement, Bank hereby agrees to establish a letter of credit line
(“Letter of Credit Line”) under which Bank shall issue or cause an
affiliate to issue commercial and standby letters of credit for the
account of Borrower to finance working capital and other corporate
requirements (each, a "Letter of Credit" and collectively, "Letters of
Credit") from time to time up to and including March 27, 2014; provided
however, that the aggregate of all undrawn amounts, and all amounts drawn
and unreimbursed, under any Letters of Credit issued under the Letter of
Credit Line shall not at any time exceed the principal amount of One
Hundred Fifty Million Dollars ($150,000,000.00). The form and
substance of each Letter of Credit shall be subject to approval by Bank,
in its sole discretion. Each Letter of Credit shall be issued
for a term not to extend beyond March 27, 2014, as designated by
Borrower. Each Letter of Credit shall be subject to the
additional terms of the Commercial and Standby Letter of Credit
Agreements, as applicable, to be dated as of the date of their respective
execution, applications thereunder, and any related documents required by
Bank in connection with the issuance thereof (each, a "Letter of Credit
Agreement").
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|
(i)
|
This
Agreement and each promissory note or other instrument or document
required hereby.
|
|
(ii)
|
LLC
Certificate: Continuing Guaranty, in the form previously agreed by Bank
and Borrower.
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|
(iii)
|
Continuing
Guaranty from SunPower North America,
LLC.
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|
(iv)
|
Such
other documents as Bank may reasonably require under any other Section of
this Agreement.
|
(b)
|
Total
Liabilities divided by Tangible Net Worth not greater than 2.00 to 1.0,
determined as of the end of each fiscal quarter, with "Total Liabilities"
defined as the aggregate of current liabilities and non-current
liabilities less subordinated debt, and with "Tangible Net Worth" defined
as the aggregate of total stockholders' equity plus subordinated debt less
any intangible assets and less any loans or advances to, or investments
in, any related entities or individuals, in each case on a GAAP
basis. Without limitation of the foregoing, Total Liabilities
shall include the amount available to be drawn under all outstanding
letters of credit (including Letters of Credit and Subfeature Letters of
Credit) issued for the account of Borrower and/or any
Subsidiary.
|
(b)
|
the
merger or consolidation of any Third Party Obligor with or into any other
entity, provided that the surviving entity shall be a Third Party
Obligor;
|
|
(d)
|
investments
in other entities, including joint
ventures.
|
BANK:
|
WELLS
FARGO BANK, NATIONAL ASSOCIATION
|
Goldms\My
Documents\sunpower-crAgt-NewNEW3.doc (Rev. 11/06)
AU#5681
#7576615169
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--
|
As
of March 20, 2009
|
|
Services
|
Price
|
STANDBY
LC
|
|
Issuance
|
20
bps p.a. with a maturity on or before July 31, 2102 and 35 bps pa with
maturity thereafter
|
Amendment—Increase
|
Same
pricing as issuance, based on maturity
|
Amendment—No
Increase
|
$65.00
min.
|
Examination/Payment
|
Same
pricing as issuance based on maturity, $250.00 min.
|
Transfer
|
Same
pricing as issuance based on maturity, $250.00 min.
|
Assignment
|
$500.00
($750.00 with LC copy)
|
Consultation
to Structure LC
|
$200.00/hr.
|
Special
Handling
|
$250.00
min.
|
Cancellation
|
$100.00
|
Commercial
LCs - Services Price
|
EXPORT
LC
|
Pre-Advice- $50.00
|
Advice
- $110.00
|
Confirmation
- $150.00 min./qtr.
|
Confirmation—Standby
LC $500.00 min./qtr.
|
Amendment -
$75.00
|
Amendment—Confirmed
LC Applicable confirmation fee, $100.00 min.
|
Negotiation
By arrangement or 1/8%, $150.00 min.
|
Documents
Sent Unexamined $100.00
|
Acceptance/Confirmation
Deferred Payment By arrangement or 3% p.a., $150.00
min.
|
Deferred
Payment—Unconfirmed $100.00
|
Discrepancy
$90.00
|
Transfer
By arrangement or 1/4%, $250.00 min.
|
Assignment
By arrangement or 1/4%, $250.00 min., $2,500.00 max.
|
Cancellation
$100.00
|
Goldms\My
Documents\sunpower-crAgt-NewNEW3.doc (Rev. 11/06)
AU#5681
#7576615169
|
--
|
1.
|
SunPower
North America, LLC, a Delaware limited liability company and wholly owned
subsidiary of SunPower Corporation;
|
2.
|
Pluto
Acquisition Company, LLC, a Delaware limited liability company in which
SunPower Corporation is the sole
member;
|
3.
|
SunPower
Corporation, Systems, a Delaware corporation, formerly known as PowerLight
Corporation, and wholly owned subsidiary of Pluto Acquisition Company,
LLC;
|
4.
|
Solar
Star TO, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
5.
|
Solar
Star YC, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
6.
|
Solar
Star I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
7.
|
Solar
Star II, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
8.
|
SunPower
Technology Ltd., a Cayman Islands entity and wholly owned subsidiary of
SunPower Corporation;
|
9.
|
SunPower
Corporation (Switzerland) SARL, a Swiss entity and wholly owned subsidiary
of SunPower Technology, Ltd.;
|
10.
|
SunPower
Philippines Manufacturing Ltd., a Cayman Islands entity and wholly owned
subsidiary of SunPower Technology,
Ltd.;
|
11.
|
SunPower
Systems SA, a Swiss entity and wholly owned subsidiary of SunPower
Corporation, Systems;
|
12.
|
SunPower
GmbH, a German entity and wholly owned subsidiary of SunPower Systems
SA;
|
13.
|
SPWR
Energias Renovaveis Unipessoal Limitada, a Portuguese entity and wholly
owned subsidiary of SunPower Systems
SA;
|
14.
|
SunPower
Energy Systems Spain, S.L., a Spanish entity and wholly owned subsidiary
of SunPower Systems SA;
|
15.
|
SunPower
Development Company, a Delaware corporation and wholly owned subsidiary of
SunPower Corporation;
|
16.
|
SunPower
Bermuda Holdings, a Bermuda exempted general partnership in which SunPower
Corporation and SunPower Corporation, Systems are general
partners;
|
17.
|
SunPower
Foundation, a California nonprofit corporation and wholly-owned subsidiary
of SunPower Corporation;
|
18.
|
SunPower
Philippines Ltd. – Regional Operating Headquarters (ROHQ), a Cayman
Islands multinational company and a wholly-owned subsidiary of SunPower
Technology Ltd.;
|
19.
|
SunPower
Malaysia Manufacturing Sdn Bhd, a Malaysian private company limited by
shares and a wholly-owned subsidiary of SunPower Technology
Ltd.;
|
20.
|
SPML
Land, Inc., a Philippines company and a wholly-owned subsidiary of
SunPower Philippines Manufacturing
Ltd;
|
21.
|
SunPower
Energy Systems Korea, a company organized under the laws of Korea and a
wholly-owned subsidiary of SunPower Systems
SA;
|
22.
|
SunPower
Italia Srl, a company organized under the laws of Italy and a wholly-owned
subsidiary of SunPower Systems SA;
|
23.
|
SunPower
Corporation Australia Pty Ltd, an Australian proprietary company limited
by shares and a wholly-owned subsidiary of SunPower Systems
SA;
|
24.
|
SunPower
France SAS, a company organized under the laws of France and a
wholly-owned subsidiary of SunPower Systems
SA;
|
25.
|
SunPower
Energy Systems Canada Corporation, an unlimited liability corporation
incorporated under the laws of Nova Scotia and a wholly-owned subsidiary
of SunPower Systems SA;
|
26.
|
Helios
Solar Star A-1 Company, an unlimited liability corporation incorporated
under the laws of Nova Scotia and a wholly-owned subsidiary of SunPower
Energy Systems Canada Corporation;
|
27.
|
Helios
Solar Star A-1, LP, a limited partnership organized under the laws of Nova
Scotia in which SunPower Energy Systems Canada Corporation and Helios
Solar Star A-1 Company are the only
partners;
|
28.
|
Greater
Sandhill I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
29.
|
High
Plains Ranch I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
30.
|
High
Plains Ranch II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
31.
|
Morgan
Stanley SunPower Solar 2007 LLC, a Delaware limited liability company in
which MS Solar I, LLC and SunPower Corporation, Systems are the only
members;
|
32.
|
MS
Solar Star I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
33.
|
Parrey,
LLC, a Delaware limited liability company in which SunPower Corporation,
Systems is the sole member;
|
34.
|
Solar
Star Arizona I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
35.
|
Solar
Star BBY CA I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
36.
|
Solar
Star BBY HI I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
37.
|
Solar
Star BBY NJ I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
38.
|
Solar
Star California I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
39.
|
Solar
Star California IV, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
40.
|
Solar
Star California VII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
41.
|
Solar
Star California VIII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
42.
|
Solar
Star California XI, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
43.
|
Solar
Star California XII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
44.
|
Solar
Star California XIII, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
45.
|
Solar
Star California XIV, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
46.
|
Solar
Star California XV, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
47.
|
Solar
Star Connecticut I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
48.
|
Solar
Star Estancia I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
49.
|
Solar
Star Hawaii I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
50.
|
Solar
Star Hawaii II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
51.
|
Solar
Star Hawaii III, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
52.
|
Solar
Star HI Air, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
53.
|
Solar
Star Koyo I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
54.
|
Solar
Star Mervyns I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
55.
|
Solar
Star MWHI I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
56.
|
Solar
Star New Jersey II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
57.
|
Solar
Star New Jersey III, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
58.
|
Solar
Star New Jersey IV, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
59.
|
Solar
Star New Jersey V, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
60.
|
Solar
Star New Jersey VI, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
61.
|
Solar
Star North Carolina I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
62.
|
Solar
Star Ohio I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
63.
|
Solar
Star Rancho CWD I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
64.
|
SPWR
Galaxy Holdco 2007 LLC, a Delaware limited liability company in which EFS
Solar Star Holdings LLC (99%) and SunPower Corporation, Systems are the
only members;
|
65.
|
Solar
Star TJX I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole member;
and
|
66.
|
SSSA,
LLC, a Delaware limited liability company in which SunPower Corporation,
Systems is the sole member.
|
Goldms\My
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AU#5681
#7576615169
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--
|
1.
|
Solar
Star TO, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
2.
|
Solar
Star YC, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
3.
|
Solar
Star I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
4.
|
Solar
Star II, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
5.
|
Greater
Sandhill I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
6.
|
High
Plains Ranch I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
7.
|
High
Plains Ranch II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
8.
|
Morgan
Stanley SunPower Solar 2007 LLC, a Delaware limited liability company in
which MS Solar I, LLC and SunPower Corporation, Systems are the only
members;
|
9.
|
MS
Solar Star I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
10.
|
Parrey,
LLC, a Delaware limited liability company in which SunPower Corporation,
Systems is the sole member;
|
11.
|
Solar
Star Arizona I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
12.
|
Solar
Star BBY CA I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
13.
|
Solar
Star BBY HI I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
14.
|
Solar
Star BBY NJ I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
15.
|
Solar
Star California I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
16.
|
Solar
Star California IV, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
17.
|
Solar
Star California VII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
18.
|
Solar
Star California VIII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
19.
|
Solar
Star California XI, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
20.
|
Solar
Star California XII, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
21.
|
Solar
Star California XIII, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
22.
|
Solar
Star California XIV, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
23.
|
Solar
Star California XV, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
24.
|
Solar
Star Connecticut I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
25.
|
Solar
Star Estancia I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
26.
|
Solar
Star Hawaii I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
27.
|
Solar
Star Hawaii II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
28.
|
Solar
Star Hawaii III, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
29.
|
Solar
Star HI Air, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
30.
|
Solar
Star Koyo I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
31.
|
Solar
Star Mervyns I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
32.
|
Solar
Star MWHI I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
33.
|
Solar
Star New Jersey II, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
34.
|
Solar
Star New Jersey III, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
35.
|
Solar
Star New Jersey IV, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
36.
|
Solar
Star New Jersey V, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
37.
|
Solar
Star New Jersey VI, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
38.
|
Solar
Star North Carolina I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
39.
|
Solar
Star Ohio I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole
member;
|
40.
|
Solar
Star Rancho CWD I, LLC, a Delaware limited liability company in which
SunPower Corporation, Systems is the sole
member;
|
41.
|
SPWR
Galaxy Holdco 2007 LLC, a Delaware limited liability company in which EFS
Solar Star Holdings LLC (99%) and SunPower Corporation, Systems are the
only members;
|
42.
|
Solar
Star TJX I, LLC, a Delaware limited liability company in which SunPower
Corporation, Systems is the sole member;
and
|
43.
|
SSSA,
LLC, a Delaware limited liability company in which SunPower Corporation,
Systems is the sole member.
|
Goldms\My
Documents\sunpower-crAgt-NewNEW3.doc (Rev. 11/06)
AU#5681
#7576615169
|
--
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
|
1. Mobilize for Construction | *** |
2. Begin Bearing Pedestals | *** |
3. Bearing Pedestals 50% Complete | *** |
4. Electrical Interconnection Complete | *** |
5. Bearing Pedestals Complete | *** |
6. Torque Arms Installed Complete | *** |
7. PV Modules 100% Delivered | *** |
8. Communications Infrastructure for DAS Complete | *** |
9. Tracker Erection Complete | *** |
10. PV Modules Installed Complete | *** |
11. Electrical Construction Complete | *** |
12. Provisional Acceptance | *** |
Revised
3-25-09
|
|||
APPENDIX N - Termination Payment
Schedule
|
|||
Schedule
of Termination of Values
|
|||
Termination
Dollars Due*
|
%
Owed of Total Contract Price
|
If
Terminated After:
|
|
***
|
***
|
***
|
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***
|
***
|
***
|
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***
|
***
|
***
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***
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***
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***
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***
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***
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***
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***
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***
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***
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***
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|
***
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|
***
|
***
|
|
***
|
***
|
***
|
|
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of SunPower
Corporation;
|
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(s) 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.
|
The
registrant’s other certifying officer(s) 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):
|
/S/ THOMAS H. WERNER
|
|
Thomas
H. Werner
|
|
Chief
Executive Officer
|
|
(Principal
Executive Officer)
|
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of SunPower
Corporation;
|
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(s) 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.
|
The
registrant’s other certifying officer(s) 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):
|
/s/
Dennis V. Arriola
|
|
Dennis
V. Arriola
|
|
Senior
Vice President and Chief Financial Officer
|
|
(Principal
Financial and Accounting Officer)
|
/S/ THOMAS H. WERNER
|
|
Thomas
H. Werner
|
|
Chief
Executive Officer
|
|
(Principal
Executive Officer)
|
|
/s/
Dennis V. Arriola
|
|
Dennis
V. Arriola
|
|
Senior
Vice President and Chief Financial Officer
|
|
(Principal
Financial and Accounting Officer)
|