x
|
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.
|
32
|
|
Item
3.
|
44
|
|
Item
4.
|
46
|
|
47
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||
Item
1.
|
47
|
|
Item
1A.
|
47
|
|
Item
2.
|
48
|
|
Item
6.
|
49
|
|
50
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||
51
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Financial
Statements
|
September
27,
2009
|
December 28,
2008(1)
|
|||||||
Assets
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$
|
472,126
|
$
|
202,331
|
||||
Restricted
cash and cash equivalents, current portion
|
77,088
|
13,240
|
||||||
Short-term
investments
|
796
|
17,179
|
||||||
Accounts
receivable, net
|
243,528
|
194,222
|
||||||
Costs
and estimated earnings in excess of billings
|
73,519
|
30,326
|
||||||
Inventories
|
239,211
|
251,542
|
||||||
Advances
to suppliers, current portion
|
22,718
|
43,190
|
||||||
Prepaid
expenses and other current assets
|
107,294
|
98,254
|
||||||
Total
current assets
|
1,236,280
|
850,284
|
||||||
Restricted
cash and cash equivalents, net of current portion
|
243,700
|
162,037
|
||||||
Long-term
investments
|
8,426
|
23,577
|
||||||
Property,
plant and equipment, net
|
695,409
|
629,247
|
||||||
Goodwill
|
198,329
|
196,720
|
||||||
Other
intangible assets, net
|
29,115
|
39,490
|
||||||
Advances
to suppliers, net of current portion
|
115,136
|
119,420
|
||||||
Other
long-term assets
|
89,836
|
76,751
|
||||||
Total
assets
|
$
|
2,616,231
|
$
|
2,097,526
|
||||
Liabilities
and Stockholders’ Equity
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$
|
232,547
|
$
|
263,241
|
||||
Accrued
liabilities
|
159,695
|
157,049
|
||||||
Billings
in excess of costs and estimated earnings
|
17,484
|
11,806
|
||||||
Convertible
debt, current portion
|
135,518
|
—
|
||||||
Customer
advances, current portion
|
22,406
|
19,035
|
||||||
Total
current liabilities
|
567,650
|
451,131
|
||||||
Long-term
debt
|
188,915
|
54,598
|
||||||
Convertible
debt, net of current portion
|
395,438
|
357,173
|
||||||
Customer
advances, net of current portion
|
74,736
|
91,359
|
||||||
Long-term
deferred tax liability
|
9,468
|
8,141
|
||||||
Other
long-term liabilities
|
26,398
|
25,950
|
||||||
Total
liabilities
|
1,262,605
|
988,352
|
||||||
Commitments
and contingencies (Note 10)
|
||||||||
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; 55,186,633 and 44,055,644 shares of class A common stock
issued; 54,858,480 and 43,849,566 shares of class A common stock
outstanding, at September 27, 2009 and December 28, 2008,
respectively
|
97
|
86
|
||||||
Additional
paid-in capital
|
1,287,711
|
1,065,745
|
||||||
Accumulated
other comprehensive loss
|
(31,644
|
)
|
(25,611
|
)
|
||||
Retained
earnings
|
109,827
|
77,611
|
||||||
1,365,991
|
1,117,831
|
|||||||
Less:
shares of class A common stock held in treasury, at cost; 328,153 and
206,078 shares at September 27, 2009 and December 28, 2008,
respectively
|
(12,365
|
)
|
(8,657
|
)
|
||||
Total
stockholders’ equity
|
1,353,626
|
1,109,174
|
||||||
Total
liabilities and stockholders’ equity
|
$
|
2,616,231
|
$
|
2,097,526
|
(1)
|
As
adjusted to reflect the adoption of new accounting guidance for
convertible debt instruments that may be settled in cash upon conversion
(see Note 1).
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
September
27,
2009
|
September
28,
2008(1)
|
September
27,
2009
|
September
28,
2008(1)
|
|||||||||||||
Revenue:
|
||||||||||||||||
Systems
|
$
|
168,412
|
$
|
193,330
|
$
|
383,233
|
$
|
642,774
|
||||||||
Components
|
297,895
|
184,170
|
594,505
|
391,178
|
||||||||||||
Total
revenue
|
466,307
|
377,500
|
977,738
|
1,033,952
|
||||||||||||
Operating
costs and expenses:
|
||||||||||||||||
Cost
of systems revenue
|
144,859
|
158,829
|
325,003
|
511,316
|
||||||||||||
Cost
of components revenue
|
232,164
|
113,358
|
457,240
|
271,288
|
||||||||||||
Research
and development
|
8,250
|
6,049
|
23,067
|
15,504
|
||||||||||||
Sales,
general and administrative
|
46,473
|
46,075
|
130,511
|
123,141
|
||||||||||||
Total
operating costs and expenses
|
431,746
|
324,311
|
935,821
|
921,249
|
||||||||||||
Operating
income
|
34,561
|
53,189
|
41,917
|
112,703
|
||||||||||||
Other
income (expense):
|
||||||||||||||||
Interest
income
|
—
|
2,650
|
1,949
|
9,086
|
||||||||||||
Interest
expense
|
(9,854
|
)
|
(5,743
|
)
|
(25,503
|
)
|
(18,137
|
)
|
||||||||
Gain
on purchased options
|
—
|
—
|
21,193
|
—
|
||||||||||||
Other,
net
|
585
|
(5,691
|
)
|
(3,765
|
)
|
(8,546
|
)
|
|||||||||
Other
income (expense), net
|
(9,269
|
)
|
(8,784
|
)
|
(6,126
|
)
|
(17,597
|
)
|
||||||||
Income
before income taxes and equity in earnings of unconsolidated
investees
|
25,292
|
44,405
|
35,791
|
95,106
|
||||||||||||
Income
tax provision
|
15,088
|
|
21,856
|
10,580
|
31,275
|
|||||||||||
Income
before equity in earnings of unconsolidated
investees
|
10,204
|
22,549
|
25,211
|
63,831
|
||||||||||||
Equity
in earnings of unconsolidated investees
|
2,627
|
2,132
|
7,005
|
4,006
|
||||||||||||
Net
income
|
$
|
12,831
|
$
|
24,681
|
$
|
32,216
|
$
|
67,837
|
||||||||
Net
income per share of class A and class B common
stock:
|
||||||||||||||||
Basic
|
$
|
0.14
|
$
|
0.30
|
$
|
0.36
|
$
|
0.84
|
||||||||
Diluted
|
$
|
0.13
|
$
|
0.29
|
$
|
0.35
|
$
|
0.80
|
||||||||
Weighted-average
shares:
|
||||||||||||||||
Basic
|
94,668
|
80,465
|
89,764
|
79,614
|
||||||||||||
Diluted
|
96,319
|
84,064
|
91,513
|
83,477
|
(1)
|
As
adjusted to reflect the adoption of new accounting guidance for both
convertible debt instruments that may be settled in cash upon conversion
and unvested share-based payment awards that contain rights to
nonforfeitable dividends are participating securities (see Note
1).
|
Nine
Months Ended
|
||||||||
September
27,
2009
|
September
28,
2008(1)
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
income
|
$
|
32,216
|
$
|
67,837
|
||||
Adjustments
to reconcile net income to net cash provided by operating
activities:
|
||||||||
Stock-based
compensation
|
34,204
|
52,026
|
||||||
Depreciation
|
60,348
|
35,741
|
||||||
Amortization
of other intangible assets
|
12,296
|
12,552
|
||||||
Impairment
of investments and long-lived assets
|
1,997
|
3,136
|
||||||
Non-cash
interest expense
|
16,186
|
12,717
|
||||||
Amortization
of debt issuance costs
|
2,454
|
1,611
|
||||||
Gain
on purchased options
|
(21,193
|
)
|
—
|
|||||
Equity
in earnings of unconsolidated investees
|
(7,005
|
)
|
(4,006
|
)
|
||||
Excess
tax benefits from stock-based award activity
|
(14,744
|
)
|
(33,899
|
)
|
||||
Deferred
income taxes and other tax liabilities
|
277
|
29,738
|
||||||
Changes
in operating assets and liabilities, net of effect of
acquisitions:
|
||||||||
Accounts
receivable
|
(43,285
|
)
|
(55,324
|
)
|
||||
Costs
and estimated earnings in excess of billings
|
(41,416
|
)
|
(17,700
|
)
|
||||
Inventories
|
20,914
|
(48,301
|
)
|
|||||
Prepaid
expenses and other assets
|
(9,440
|
)
|
(29,636
|
)
|
||||
Advances
to suppliers
|
24,877
|
19,102
|
||||||
Accounts
payable and other accrued liabilities
|
(31,345
|
)
|
76,513
|
|||||
Billings
in excess of costs and estimated earnings
|
4,877
|
(60,064
|
)
|
|||||
Customer
advances
|
(13,639
|
)
|
45,884
|
|||||
Net
cash provided by operating activities
|
28,579
|
107,927
|
||||||
Cash
flows from investing activities:
|
||||||||
Increase
in restricted cash and cash equivalents
|
(145,583
|
)
|
(42,153
|
)
|
||||
Purchases
of property, plant and equipment
|
(150,093
|
)
|
(150,302
|
)
|
||||
Proceeds
from sale of equipment to third-party
|
9,878
|
—
|
||||||
Purchases
of available-for-sale securities
|
—
|
(65,748
|
)
|
|||||
Proceeds
from sales or maturities of available-for-sale
securities
|
29,545
|
133,948
|
||||||
Cash
paid for acquisitions, net of cash acquired
|
—
|
(18,311
|
)
|
|||||
Cash
paid for investments in joint ventures and other non-public
companies
|
—
|
(24,625
|
)
|
|||||
Net
cash used in investing activities
|
(256,253
|
)
|
(167,191
|
)
|
||||
Cash
flows from financing activities:
|
||||||||
Proceeds
from issuance of long-term debt, net of issuance
costs
|
137,735
|
—
|
||||||
Proceeds
from issuance of convertible debt, net of issuance
costs
|
225,018
|
—
|
||||||
Proceeds
from offering of class A common stock, net of offering
expenses
|
218,781
|
—
|
||||||
Cash
paid for repurchase of convertible debt
|
(75,636
|
)
|
—
|
|||||
Cash
paid for purchased options
|
(97,336
|
)
|
—
|
|||||
Proceeds
from warrant transactions
|
71,001
|
—
|
||||||
Proceeds
from exercises of stock options
|
1,408
|
3,786
|
||||||
Excess
tax benefits from stock-based award activity
|
14,744
|
33,899
|
||||||
Purchases
of stock for tax withholding obligations on vested restricted
stock
|
(3,708
|
)
|
(5,853
|
)
|
||||
Net
cash provided by financing activities
|
492,007
|
31,832
|
||||||
Effect
of exchange rate changes on cash and cash
equivalents
|
5,462
|
(1,166
|
)
|
|||||
Net
increase (decrease) in cash and cash equivalents
|
269,795
|
(28,598
|
)
|
|||||
Cash
and cash equivalents at beginning of period
|
202,331
|
285,214
|
||||||
Cash
and cash equivalents at end of period
|
$
|
472,126
|
$
|
256,616
|
||||
Non-cash
transactions:
|
||||||||
Additions
to property, plant and equipment included in accounts payable and other
accrued liabilities
|
$
|
—
|
$
|
46,780
|
||||
Non-cash
interest expense capitalized and added to the cost of qualified
assets
|
4,456
|
6,367
|
||||||
Issuance
of common stock for purchase acquisition
|
1,471
|
3,054
|
||||||
Change
in goodwill relating to adjustments to acquired net
assets
|
—
|
231
|
(1)
|
As
adjusted to reflect the adoption of new accounting guidance for
convertible debt instruments that may be settled in cash upon conversion
(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, net of current portion
|
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)
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||||
As
Adjusted
in
this
Quarterly
Report
on
Form 10-Q
|
As
Previously Reported in
Quarterly
Report
on
Form 10-Q
|
As
Adjusted
in
this
Quarterly
Report
on
Form 10-Q
|
As
Previously Reported in
Quarterly
Report
on
Form 10-Q
|
|||||||||||||
Cost
of systems revenue
|
$
|
158,829
|
$
|
158,730
|
$
|
511,316
|
$
|
511,080
|
||||||||
Cost
of components revenue
|
113,358
|
113,149
|
271,288
|
270,901
|
||||||||||||
Operating
income
|
53,189
|
53,497
|
112,703
|
113,326
|
||||||||||||
Interest
expense
|
(5,743
|
)
|
(1,411
|
)
|
(18,137)
|
(4,286
|
)
|
|||||||||
Other,
net
|
(5,691
|
)
|
(5,692
|
)
|
(8,546)
|
(9,519
|
)
|
|||||||||
Income
before income taxes and equity in earnings of unconsolidated
investees
|
44,405
|
49,044
|
95,106
|
108,607
|
||||||||||||
Income
tax provision
|
21,856
|
29,797
|
31,275
|
49,869
|
||||||||||||
Income
before equity in earnings of unconsolidated
investees
|
22,549
|
19,247
|
63,831
|
58,738
|
||||||||||||
Net
income
|
24,681
|
21,379
|
67,837
|
62,744
|
(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
|
$
|
67,837
|
$
|
62,744
|
||||
Depreciation
|
35,741
|
35,595
|
||||||
Non-cash
interest expense
|
12,717
|
—
|
||||||
Amortization
of debt issuance costs
|
1,611
|
972
|
||||||
Deferred
income taxes and other tax liabilities
|
29,738
|
48,333
|
||||||
Net
cash provided by operating activities
|
107,927
|
107,927
|
(In thousands, except per share data)
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||||
As
Adjusted
in
this
Quarterly
Report
on
Form 10-Q
|
As
Previously Reported in
Quarterly
Report
on
Form 10-Q
|
As
Adjusted
in
this
Quarterly
Report
on
Form 10-Q
|
As
Previously Reported in
Quarterly
Report
on
Form 10-Q
|
|||||||||||||
Net
income
|
$
|
24,681
|
$
|
21,379
|
$
|
67,837
|
$
|
62,744
|
||||||||
Net
income per share of class A and class B common
stock:
|
||||||||||||||||
Basic
|
$
|
0.30
|
$
|
0.27
|
$
|
0.84
|
$
|
0.79
|
||||||||
Diluted
|
$
|
0.29
|
$
|
0.25
|
$
|
0.80
|
$
|
0.75
|
||||||||
Weighted-average
shares:
|
||||||||||||||||
Basic
|
80,465
|
80,465
|
79,614
|
79,614
|
||||||||||||
Diluted
|
84,064
|
84,488
|
83,477
|
84,061
|
(In
thousands)
|
September
27,
2009
|
December 28,
2008
|
||||||
Accounts
receivable, net:
|
||||||||
Accounts
receivable, gross
|
$
|
247,751
|
$
|
196,316
|
||||
Less:
Allowance for doubtful accounts
|
(2,307
|
)
|
(1,863
|
)
|
||||
Less:
Allowance for sales returns
|
(1,916
|
)
|
(231
|
)
|
||||
$
|
243,528
|
$
|
194,222
|
|||||
Prepaid
expenses and other current assets:
|
||||||||
VAT
receivables, current portion
|
$
|
37,867
|
$
|
26,489
|
||||
Deferred
tax assets
|
5,658
|
5,658
|
||||||
Foreign
currency derivatives
|
2,670
|
11,443
|
||||||
Other
receivables(1)
|
30,591
|
36,749
|
||||||
Other
prepaid expenses
|
30,508
|
17,915
|
||||||
$
|
107,294
|
$
|
98,254
|
|||||
(1) Includes
tolling agreements with suppliers in which the Company provides
polysilicon required for silicon ingot manufacturing and procures the
manufactured silicon ingots from the suppliers (see Note
10).
|
||||||||
Other
long-term assets:
|
||||||||
VAT
receivables, net of current portion
|
$
|
7,536
|
$
|
6,692
|
||||
Investments
in joint ventures
|
35,993
|
29,007
|
||||||
Note
receivable(2)
|
10,000
|
10,000
|
||||||
Other
|
36,307
|
31,052
|
||||||
$
|
89,836
|
$
|
76,751
|
|||||
(2) In
June 2008, the Company loaned $10.0 million to a third-party private
company pursuant to a three-year note receivable that is convertible into
equity at the Company’s option.
|
||||||||
Accrued
liabilities:
|
||||||||
VAT
payables
|
$
|
20,796
|
$
|
18,934
|
||||
Income
taxes payable
|
—
|
|
13,402
|
|||||
Short-term
deferred tax liability
|
5,658
|
5,658
|
||||||
Foreign
currency derivatives
|
49,553
|
45,791
|
||||||
Short-term
warranty reserves
|
36,329
|
23,872
|
||||||
Employee
compensation and employee benefits
|
15,229
|
19,018
|
||||||
Other
|
32,130
|
30,374
|
||||||
$
|
159,695
|
$
|
157,049
|
(In
thousands)
|
September
27,
2009
|
December 28,
2008
|
||||||
Raw
materials(1)
|
$
|
62,137
|
$
|
96,351
|
||||
Work-in-process
(2)
|
38,782
|
26,155
|
||||||
Finished
goods(3)
|
138,292
|
129,036
|
||||||
$
|
239,211
|
$
|
251,542
|
|||||
(1) In
addition to polysilicon and other raw materials for solar cell
manufacturing, raw materials include installation materials for systems
projects.
|
||||||||
(2) In
the Annual Report on Form 10-K for the year ended December 28, 2008, solar
cells to be sold to customers were previously disclosed as finished goods
and solar cells to be manufactured into solar panels at our solar panel
assembly facility were previously disclosed as raw materials. In this
Quarterly Report on Form 10-Q, the balance of work-in-process as of
December 28, 2008 is adjusted to include all solar
cells.
|
||||||||
(3) In
the Annual Report on Form 10-K for the year ended December 28, 2008,
third-party solar panels to be used in the construction of solar power
systems by the Systems Segment were previously disclosed as raw materials.
In this Quarterly Report on Form 10-Q, the balance of finished goods as of
December 28, 2008 is adjusted to include third-party solar panels. In
addition, the balance of finished goods as of December 28, 2008 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 new accounting guidance for convertible debt instruments that
may be settled in cash upon conversion (see Note 1).
|
(In
thousands)
|
September
27,
2009
|
December 28,
2008(1)
|
||||||
Property,
plant and equipment, net:
|
||||||||
Land
and buildings
|
$
|
17,269
|
$
|
13,912
|
||||
Manufacturing
equipment
|
538,958
|
387,860
|
||||||
Computer
equipment
|
40,087
|
26,957
|
||||||
Furniture
and fixtures
|
4,501
|
4,327
|
||||||
Leasehold
improvements
|
195,532
|
148,190
|
||||||
Construction-in-process
|
60,362
|
149,657
|
||||||
856,709
|
730,903
|
|||||||
Less:
Accumulated depreciation
|
(161,300
|
)
|
(101,656
|
)
|
||||
$
|
695,409
|
$
|
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 new accounting guidance for convertible debt
instruments that may be settled in cash upon conversion (see Note
1).
|
(In
thousands)
|
Systems
|
Components
|
Total
|
|||||||||
As
of December 28, 2008
|
$
|
181,801
|
$
|
14,919
|
$
|
196,720
|
||||||
Goodwill
arising from business combination
|
581
|
—
|
581
|
|||||||||
Translation
adjustment
|
—
|
1,028
|
1,028
|
|||||||||
As
of September 27, 2009
|
$
|
182,382
|
$
|
15,947
|
$
|
198,329
|
(In
thousands)
|
Gross
|
Accumulated
Amortization
|
Net
|
|||||||||
As
of September 27, 2009
|
||||||||||||
Patents
and purchased technology
|
$
|
51,398
|
$
|
(39,341
|
)
|
$
|
12,057
|
|||||
Purchased
in-process research and development
|
1,000
|
—
|
1,000
|
|||||||||
Trade
names
|
2,622
|
(2,094
|
)
|
528
|
||||||||
Customer
relationships and other
|
28,580
|
(13,050
|
)
|
15,530
|
||||||||
$ |
83,600
|
$
|
(54,485
|
)
|
$
|
29,115
|
||||||
As
of December 28, 2008
|
||||||||||||
Patents
and purchased technology
|
$
|
51,398
|
$
|
(31,322
|
)
|
$
|
20,076
|
|||||
Trade
names
|
2,501
|
(1,685
|
)
|
816
|
||||||||
Customer
relationships and other
|
27,456
|
(8,858
|
)
|
18,598
|
||||||||
$
|
81,355
|
$
|
(41,865
|
)
|
$
|
39,490
|
2009
(remaining three months)
|
$
|
4,170
|
||
2010
|
15,406
|
|||
2011
|
5,315
|
|||
2012
|
4,119
|
|||
Thereafter
|
105
|
|||
$
|
29,115
|
September
27, 2009
|
||||||||||||||||
(In
thousands)
|
Level
1
|
Level
2
|
Level
3
|
Total
|
||||||||||||
Assets
|
||||||||||||||||
Money
market funds
|
$
|
550,489
|
$
|
—
|
$
|
796
|
$
|
551,285
|
||||||||
Bank
notes
|
24,029
|
—
|
—
|
24,029
|
||||||||||||
Corporate
securities
|
—
|
—
|
8,426
|
8,426
|
||||||||||||
Total
available-for-sale securities
|
$
|
574,518
|
$
|
—
|
$
|
9,222
|
$
|
583,740
|
December
28, 2008
|
||||||||||||||||
(In
thousands)
|
Level
1
|
Level
2
|
Level
3
|
Total
|
||||||||||||
Assets
|
||||||||||||||||
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 3.7% to 7.8%, which incorporates a spread for both
credit and liquidity risk.
|
(In
thousands)
|
Money
Market
Funds
|
Auction
Rate Securities
|
||||||
Balance
as of December 28, 2008
|
$
|
7,185
|
$
|
23,577
|
||||
Sales
and distributions (1)
|
(5,151
|
)
|
(14,392
|
)
|
||||
Impairment
loss recorded in “Other, net”
|
(1,238
|
)
|
(759
|
)
|
||||
Balance
as of September 27, 2009 (2)
|
$
|
796
|
$
|
8,426
|
(1)
|
In
the three and nine months ended September 27, 2009, the Company sold
auction rate securities with a carrying value of $9.9 million and
$14.4 million, respectively, for $9.8 million and $14.4 million,
respectively, to third-parties outside of the auction process and
received distributions of zero and $5.2 million, respectively, from the
Reserve Funds.
|
(2)
|
In
October 2009, the Company sold an auction rate security with a carrying
value of $4.0 million for $4.1 million to a third-party outside of the
auction process and received distributions of $0.5 million from the
Reserve Funds.
|
(In
thousands)
|
Money
Market
Funds
|
Auction
Rate Securities
|
||||||
Balance
as of December 31, 2007
|
$
|
—
|
$
|
—
|
||||
Transfers
from Level 1 to Level 3
|
26,677
|
—
|
||||||
Transfers
from Level 2 to Level 3
|
—
|
29,050
|
||||||
Purchases
|
—
|
10,000
|
||||||
Sales
and distributions (1)
|
—
|
(13,000
|
)
|
|||||
Impairment
loss recorded in “Other, net”
|
(933
|
)
|
—
|
|||||
Unrealized
loss included in “Other comprehensive income”
|
—
|
(1,033
|
)
|
|||||
Balance
as of September 28, 2008
|
$
|
25,744
|
$
|
25,017
|
(1)
|
In
both the three and nine months ended September 28, 2008, the Company sold
auction rate securities with a carrying value of $12.5 million for their
stated par value of $13.0 million to the issuer of the
securities outside of the auction
process.
|
September
27, 2009
|
December 28, 2008
|
|||||||||||||||||||||||||||||||
Unrealized
|
Unrealized
|
|||||||||||||||||||||||||||||||
(In thousands)
|
Cost
|
Gross
Gains
|
Gross
Losses
|
Fair
Value
|
Cost
|
Gross
Gains
|
Gross
Losses
|
Fair
Value
|
||||||||||||||||||||||||
Money
market funds
|
$
|
551,285
|
$
|
—
|
$
|
—
|
$
|
551,285
|
$
|
234,375
|
$
|
—
|
$
|
—
|
$
|
234,375
|
||||||||||||||||
Bank
notes
|
24,029
|
—
|
—
|
24,029
|
49,610
|
—
|
—
|
49,610
|
||||||||||||||||||||||||
Corporate
securities
|
8,426
|
—
|
—
|
8,426
|
33,579
|
2
|
(10
|
)
|
33,571
|
|||||||||||||||||||||||
Total
available-for-sale securities
|
$
|
583,740
|
$
|
—
|
$
|
—
|
$
|
583,740
|
$
|
317,564
|
$
|
2
|
$
|
(10
|
)
|
$
|
317,556
|
September 27, 2009
|
December 28, 2008
|
|||||||||||||||||||||||
(In thousands)
|
Available-
For-Sale
|
Cash
Deposits
|
Total
|
Available-
For-Sale
|
Cash
Deposits
|
Total
|
||||||||||||||||||
Cash
and cash equivalents
|
$
|
395,700
|
$
|
76,426
|
$
|
472,126
|
$
|
101,523
|
$
|
100,808
|
$
|
202,331
|
||||||||||||
Short-term
restricted cash(1)
|
77,088
|
—
|
77,088
|
13,240
|
—
|
13,240
|
||||||||||||||||||
Short-term
investments
|
796
|
—
|
796
|
17,179
|
—
|
17,179
|
||||||||||||||||||
Long-term
restricted cash(1, 2)
|
101,730
|
141,970
|
243,700
|
162,037
|
—
|
162,037
|
||||||||||||||||||
Long-term
investments
|
8,426
|
—
|
8,426
|
23,577
|
—
|
23,577
|
||||||||||||||||||
$
|
583,740
|
$
|
218,396
|
$
|
802,136
|
$
|
317,556
|
$
|
100,808
|
$
|
418,364
|
(1)
|
Includes
cash collateralized bank standby letters of credit the Company provided to
securitize advance payments received from
customers.
|
(2)
|
Includes
cash obtained under the Company’s facility agreement with the Malaysian
Government to finance the construction of its planned third solar cell
manufacturing facility in Malaysia.
|
(In thousands)
|
September
27,
2009
|
December
28,
2008(1)
|
||||||
Due
in less than one year
|
$
|
575,314
|
$
|
293,979
|
||||
Due
from one to twenty years
|
8,426
|
23,577
|
||||||
$
|
583,740
|
$
|
317,556
|
(1)
|
Contractual
maturities of available-for-sale securities as of December 28, 2008 is
adjusted in this Quarterly Report on Form 10-Q to reflect the maturities
of the debt and equity securities rather than the maturities of the bank
standby letters of credit, as previously presented in the Annual Report on
Form 10-K for the year ended December 28, 2008. The majority of the
Company’s cash collateralized bank standby letters of credit have longer
maturities than the related debt and equity securities used to
collateralize such customer advance
payments.
|
Common
and
Preferred
Stock
|
||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
||||||
Balance
at the beginning of the period
|
$
|
32,066
|
$
|
5,304
|
||||
Purchases
|
1,500
|
14,625
|
||||||
Payments
|
(19
|
)
|
—
|
|||||
Equity
in earnings of unconsolidated investees
|
7,005
|
4,006
|
||||||
Balance
at the end of the period
|
$
|
40,552
|
$
|
23,935
|
2009
(remaining three months)
|
$
|
86,996
|
||
2010
|
161,414
|
|||
2011
|
121,564
|
|||
2012
|
72,694
|
|||
$
|
442,668
|
2009
(remaining three months)
|
$
|
15,084
|
||
2010
|
9,763
|
|||
2011
|
8,295
|
|||
2012
|
8,000
|
|||
2013
|
8,000
|
|||
Thereafter
|
48,000
|
|||
$
|
97,142
|
(In
thousands)
|
Three
Months
Ended
|
Nine
Months
Ended
|
||||||
Cost
of systems revenue
|
$
|
—
|
$
|
259
|
||||
Cost
of components revenue
|
—
|
49
|
||||||
Research
and development
|
—
|
130
|
||||||
Sales,
general and administrative
|
—
|
1,244
|
||||||
Total
restructuring charges
|
$
|
—
|
$
|
1,682
|
2009
(remaining three months)
|
$
|
1,440
|
||
2010
|
5,214
|
|||
2011
|
3,790
|
|||
2012
|
2,912
|
|||
2013
|
2,828
|
|||
Thereafter
|
14,707
|
|||
$
|
30,891
|
2009
(remaining three months)
|
$
|
181,483
|
||
2010
|
612,745
|
|||
2011
|
708,974
|
|||
2012
|
635,214
|
|||
2013
|
665,191
|
|||
Thereafter
|
3,630,400
|
|||
$
|
6,434,007
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Balance
at the beginning of the period
|
$
|
34,108
|
$
|
22,521
|
$
|
28,062
|
$
|
17,194
|
||||||||
Accruals
for warranties issued during the period
|
6,756
|
4,163
|
15,749
|
14,003
|
||||||||||||
Settlements
made during the period
|
(1,069
|
)
|
(2,920
|
)
|
(4,016
|
)
|
(7,433
|
)
|
||||||||
Balance
at the end of the period
|
$
|
39,795
|
$
|
23,764
|
$
|
39,795
|
$
|
23,764
|
(In
thousands)
|
Nine
Months
Ended
|
|||
Revenue
|
$
|
67,249
|
||
Gross
margin
|
36,631
|
|||
Operating
income
|
33,121
|
|||
Net
income
|
15,463
|
September
27, 2009
|
December 28, 2008
|
|||||||||||||||||||||||
(In thousands)
|
Carrying
Value
|
Face
Value
|
Fair
Value(1)
|
Carrying
Value
|
Face
Value
|
Fair
Value(1)
|
||||||||||||||||||
4.75%
debentures
|
$
|
230,000
|
$
|
230,000
|
$
|
314,010
|
$
|
—
|
$
|
—
|
$
|
—
|
||||||||||||
1.25%
debentures
|
165,438
|
198,608
|
179,492
|
156,350
|
198,608
|
143,991
|
||||||||||||||||||
0.75%
debentures
|
135,518
|
143,883
|
138,667
|
200,823
|
225,000
|
166,747
|
||||||||||||||||||
$
|
530,956
|
$
|
572,491
|
$
|
632,169
|
$
|
357,173
|
$
|
423,608
|
$
|
310,738
|
(1)
|
The
fair value of the convertible debt was determined based on quoted market
prices as reported by an independent pricing
source.
|
2009
(remaining three months)
|
$
|
5,618
|
||
2010
|
19,332
|
|||
2011
|
14,687
|
|||
2012
|
1,898
|
|||
$
|
41,535
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Net
income
|
$
|
12,831
|
$
|
24,681
|
$
|
32,216
|
$
|
67,837
|
||||||||
Other
comprehensive income:
|
||||||||||||||||
Translation
adjustment
|
4,124
|
(16,570
|
)
|
(9,933
|
)
|
(4,241
|
)
|
|||||||||
Unrealized
gain (loss) on investments, net of tax
|
—
|
(138
|
)
|
8
|
(1,140
|
)
|
||||||||||
Unrealized
gain on derivatives, net of tax
|
327
|
435
|
3,892
|
4,030
|
||||||||||||
Total
comprehensive income
|
$
|
17,282
|
$
|
8,408
|
$
|
26,183
|
$
|
66,486
|
(In
thousands)
|
Balance
Sheet Classification
|
Significant
Other
Observable
Inputs
(Level
2)
|
|||
Assets
|
Prepaid
expenses and other current assets
|
||||
Cash
flow hedges:
|
|||||
Foreign
currency option contracts
|
$
|
1,359
|
|||
Balance
sheet hedges:
|
|||||
Foreign
currency forward exchange contracts
|
$
|
1,311
|
|||
Liabilities
|
Accrued
liabilities
|
||||
Cash
flow hedges:
|
|||||
Foreign
currency forward exchange contracts
|
$
|
40,546
|
|||
Balance
sheet hedges:
|
|||||
Foreign
currency forward exchange contracts
|
$
|
9,007
|
Unrealized
Loss Recognized in OCI (Effective Portion)
|
Loss
Reclassified from OCI to Cost of Revenue (Effective
Portion)
|
Gain
(Loss) Recognized in Other, Net on Derivatives (Ineffective Portion and
Amount Excluded from Effectiveness Testing)
|
||||||||||||||||||
(In
thousands)
|
As
of
September
27,
2009
|
Three
Months
Ended
September
27,
2009
|
Nine
Months
Ended
September
27,
2009
|
Three
Months
Ended
September
27,
2009
|
Nine
Months
Ended
September
27,
2009
|
|||||||||||||||
Cash
flow hedges:
|
||||||||||||||||||||
Foreign
currency option contracts
|
$
|
—
|
$
|
—
|
$
|
—
|
$
|
(2,177
|
)
|
$
|
(3,053
|
)
|
||||||||
Foreign
currency forward exchange contracts
|
(22,193
|
)
|
(10,625
|
)
|
(10,750
|
)
|
812
|
(846
|
)
|
|||||||||||
$
|
(22,193
|
)
|
$
|
(10,650
|
)
|
$
|
(10,775
|
)
|
$
|
(1,365
|
)
|
$
|
(3,899
|
)
|
(In
thousands)
|
Three
Months
Ended
September
27,
2009
|
Nine
Months
Ended
September
27,
2009
|
||||||
Balance
sheet hedges:
|
||||||||
Foreign
currency forward exchange contracts
|
$
|
(12,648
|
)
|
$
|
(16,634
|
)
|
As
of
|
||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
||||||
Stock
options
|
394
|
116
|
||||||
Restricted
stock units
|
1,960
|
335
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(In
thousands, except per share data)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Basic
net income per share:
|
||||||||||||||||
Net
income
|
$
|
12,831
|
$
|
24,681
|
$
|
32,216
|
$
|
67,837
|
||||||||
Less: Undistributed
earnings allocated to unvested restricted stock
awards
|
(40
|
)
|
(259
|
)
|
(124
|
)
|
(879
|
)
|
||||||||
Net
income available to common stockholders
|
$
|
12,791
|
$
|
24,422
|
$
|
32,092
|
$
|
66,958
|
||||||||
Basic
weighted-average common shares
|
94,668
|
80,465
|
89,764
|
79,614
|
||||||||||||
Basic
net income per share
|
$
|
0.14
|
$
|
0.30
|
$
|
0.36
|
$
|
0.84
|
||||||||
Diluted
net income per share:
|
||||||||||||||||
Net
income
|
$
|
12,831
|
$
|
24,681
|
$
|
32,216
|
$
|
67,837
|
||||||||
Less: Undistributed
earnings allocated to unvested restricted stock
awards
|
(39
|
)
|
|
(248
|
)
|
(122
|
)
|
(862
|
)
|
|||||||
Diluted
net income
|
$
|
12,792
|
$
|
24,433
|
$
|
32,094
|
$
|
66,975
|
||||||||
Basic
weighted-average common shares
|
94,668
|
80,465
|
89,764
|
79,614
|
||||||||||||
Effect
of dilutive securities:
|
||||||||||||||||
Stock
options
|
1,436
|
2,438
|
1,612
|
2,708
|
||||||||||||
Restricted
stock units
|
215
|
134
|
137
|
91
|
||||||||||||
1.25%
debentures
|
—
|
1,027
|
—
|
1,044
|
||||||||||||
0.75%
debentures
|
—
|
—
|
—
|
20
|
||||||||||||
Diluted
weighted-average common shares
|
96,319
|
84,064
|
91,513
|
83,477
|
||||||||||||
Diluted
net income per share
|
$
|
0.13
|
$
|
0.29
|
$
|
0.35
|
$
|
0.80
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Cost
of systems revenue
|
$
|
1,494
|
$
|
2,911
|
$
|
3,266
|
$
|
7,661
|
||||||||
Cost
of components revenue
|
2,808
|
1,964
|
6,489
|
6,057
|
||||||||||||
Research
and development
|
1,736
|
987
|
4,649
|
2,770
|
||||||||||||
Sales,
general and administrative
|
7,036
|
13,049
|
19,800
|
35,538
|
||||||||||||
Total
stock-based compensation expense
|
$
|
13,074
|
$
|
18,911
|
$
|
34,204
|
$
|
52,026
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Employee
stock options
|
$
|
1,048
|
$
|
1,072
|
$
|
3,346
|
$
|
3,273
|
||||||||
Restricted
stock awards and units
|
10,955
|
10,053
|
30,470
|
28,183
|
||||||||||||
Shares
and options released from re-vesting restrictions
|
—
|
7,627
|
168
|
21,260
|
||||||||||||
Change
in stock-based compensation capitalized in inventory
|
1,071
|
159
|
220
|
(690
|
)
|
|||||||||||
Total
stock-based compensation expense
|
$
|
13,074
|
$
|
18,911
|
$
|
34,204
|
$
|
52,026
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(As
a percentage of total revenue)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Revenue
by geography:
|
||||||||||||||||
United
States
|
32
|
%
|
49
|
%
|
46
|
%
|
29
|
%
|
||||||||
Europe:
|
||||||||||||||||
Germany
|
26
|
%
|
10
|
%
|
21
|
%
|
8
|
%
|
||||||||
Italy
|
29
|
%
|
5
|
%
|
20
|
%
|
3
|
%
|
||||||||
Spain
|
3
|
%
|
16
|
%
|
2
|
%
|
44
|
%
|
||||||||
Other
|
5
|
%
|
8
|
%
|
6
|
%
|
7
|
%
|
||||||||
Rest
of world
|
5
|
%
|
12
|
%
|
5
|
%
|
9
|
%
|
||||||||
100
|
%
|
100
|
%
|
100
|
%
|
100
|
%
|
|||||||||
Revenue
by segment:
|
||||||||||||||||
Systems
|
36
|
%
|
51
|
%
|
39
|
%
|
62
|
%
|
||||||||
Components
|
64
|
%
|
49
|
%
|
61
|
%
|
38
|
%
|
||||||||
100
|
%
|
100
|
%
|
100
|
%
|
100
|
%
|
|||||||||
Gross
margin by segment:
|
||||||||||||||||
Systems
|
14
|
%
|
18
|
%
|
15
|
%
|
20
|
%
|
||||||||
Components
|
22
|
%
|
38
|
%
|
23
|
%
|
31
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||
(As
a percentage of total revenue)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||
Significant
Customers:
|
Business
Segment
|
|||||||||||||
SunRay
Renewable Energy
|
Systems
|
15%
|
*
|
*
|
*
|
|||||||||
Florida
Power & Light Company
|
Systems
|
*
|
*
|
14%
|
*
|
|||||||||
Naturener
Group
|
Systems
|
*
|
11%
|
*
|
23%
|
|||||||||
Sedwick
Corporate, S.L.
|
Systems
|
*
|
*
|
*
|
15%
|
|
•
|
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
|
Nine
Months Ended
|
||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
|||||||||||
Systems
revenue
|
$
|
168,412
|
$
|
193,330
|
$
|
383,233
|
$
|
642,774
|
|||||||
Components
revenue
|
297,895
|
184,170
|
594,505
|
391,178
|
|||||||||||
Total
revenue
|
$
|
466,307
|
$
|
377,500
|
$
|
977,738
|
$
|
1,033,952
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||
(As
a percentage of total revenue)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||
Significant
Customers:
|
Business
Segment
|
|||||||||||||
SunRay
Renewable Energy (“SunRay”)
|
Systems
|
15%
|
*
|
*
|
*
|
|||||||||
Florida
Power & Light Company (“FPL”)
|
Systems
|
*
|
*
|
14%
|
*
|
|||||||||
Naturener
Group
|
Systems
|
*
|
11%
|
*
|
23%
|
|||||||||
Sedwick
Corporate, S.L.
|
Systems
|
*
|
*
|
*
|
15%
|
Three
Months Ended
|
||||||||||||||||||||||
Systems
|
Components
|
Consolidated
|
||||||||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||||||
Amortization
of other intangible assets
|
$
|
1,841
|
$
|
1,841
|
$
|
961
|
$
|
1,106
|
$
|
2,802
|
$
|
2,947
|
||||||||||
Stock-based
compensation
|
1,494
|
2,911
|
2,808
|
1,964
|
4,302
|
4,875
|
||||||||||||||||
Impairment
of long-lived assets
|
—
|
(1,343
|
)
|
—
|
(1,943
|
)
|
—
|
(3,286
|
)
|
|||||||||||||
Non-cash
interest expense
|
87
|
100
|
278
|
144
|
365
|
244
|
||||||||||||||||
Materials
and other cost of revenue
|
141,437
|
155,320
|
228,117
|
112,087
|
369,554
|
267,407
|
||||||||||||||||
Total
cost of revenue
|
$
|
144,859
|
$
|
158,829
|
$
|
232,164
|
$
|
113,358
|
$
|
377,023
|
$
|
272,187
|
||||||||||
Total
cost of revenue as a percentage of revenue
|
86
|
%
|
82
|
%
|
78
|
%
|
62
|
%
|
81
|
%
|
72
|
%
|
||||||||||
Total
gross margin percentage
|
14
|
%
|
18
|
%
|
22
|
%
|
38
|
%
|
19
|
%
|
28
|
%
|
Nine
Months Ended
|
||||||||||||||||||||||
Systems
|
Components
|
Consolidated
|
||||||||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||||||
Amortization
of other intangible assets
|
$
|
5,523
|
$
|
5,850
|
$
|
2,867
|
$
|
3,216
|
$
|
8,390
|
$
|
9,066
|
||||||||||
Stock-based
compensation
|
3,266
|
7,661
|
6,489
|
6,057
|
9,755
|
13,718
|
||||||||||||||||
Impairment
of long-lived assets
|
—
|
—
|
—
|
2,203
|
—
|
2,203
|
||||||||||||||||
Non-cash
interest expense
|
664
|
201
|
1,441
|
276
|
2,105
|
477
|
||||||||||||||||
Materials
and other cost of revenue
|
315,550
|
497,604
|
446,443
|
259,536
|
761,993
|
757,140
|
||||||||||||||||
Total
cost of revenue
|
$
|
325,003
|
$
|
511,316
|
$
|
457,240
|
$
|
271,288
|
$
|
782,243
|
$
|
782,604
|
||||||||||
Total
cost of revenue as a percentage of revenue
|
85
|
%
|
80
|
%
|
77
|
%
|
69
|
%
|
80
|
%
|
76
|
%
|
||||||||||
Total
gross margin percentage
|
15
|
%
|
20
|
%
|
23
|
%
|
31
|
%
|
20
|
%
|
24
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
|||||||||||
Research
and development
|
$
|
8,250
|
$
|
6,049
|
$
|
23,067
|
$
|
15,504
|
|||||||
As
a percentage of revenue
|
2
|
%
|
2
|
%
|
2
|
%
|
1
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Sales,
general and administrative
|
$
|
46,473
|
$
|
46,075
|
$
|
130,511
|
$
|
123,141
|
||||||||
As
a percentage of revenue
|
10
|
%
|
12
|
%
|
13
|
%
|
12
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Interest
income
|
$
|
—
|
$
|
2,650
|
$
|
1,949
|
$
|
9,086
|
||||||||
As
a percentage of revenue
|
—
|
%
|
1
|
%
|
—
|
%
|
1
|
%
|
||||||||
Interest
expense
|
$
|
(9,854
|
)
|
$
|
(5,743
|
)
|
$
|
(25,503
|
)
|
$
|
(18,137
|
)
|
||||
As
a percentage of revenue
|
2
|
%
|
2
|
%
|
3
|
%
|
2
|
%
|
||||||||
Gain
on purchased options
|
$
|
—
|
$
|
—
|
$
|
21,193
|
$
|
—
|
||||||||
As
a percentage of revenue
|
—
|
%
|
—
|
%
|
2
|
%
|
—
|
%
|
||||||||
Other,
net
|
$
|
585
|
$
|
(5,691
|
)
|
$
|
(3,765
|
)
|
$
|
(8,546
|
)
|
|||||
As
a percentage of revenue
|
—
|
%
|
2
|
%
|
—
|
%
|
1
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Gain
(loss) on derivatives and foreign exchange
|
$
|
696
|
$
|
(4,579
|
)
|
$
|
(1,852
|
)
|
$
|
(7,407
|
)
|
|||||
Impairment
of investments
|
(190
|
)
|
(933
|
)
|
(1,997
|
)
|
(933
|
)
|
||||||||
Other
income (expense), net
|
79
|
(179
|
)
|
84
|
(206
|
)
|
||||||||||
Total
other, net
|
$
|
585
|
$
|
(5,691
|
)
|
$
|
(3,765
|
)
|
$
|
(8,546
|
)
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Income
tax provision
|
$
|
15,088
|
$
|
21,856
|
$
|
10,580
|
$
|
31,275
|
||||||||
As
a percentage of revenue
|
3
|
%
|
6
|
%
|
1
|
%
|
3
|
%
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||||||
(Dollars
in thousands)
|
September
27,
2009
|
September
28,
2008
|
September
27,
2009
|
September
28,
2008
|
||||||||||||
Equity
in earnings of unconsolidated investees
|
$
|
2,627
|
$
|
2,132
|
$
|
7,005
|
$
|
4,006
|
||||||||
As
a percentage of revenue
|
1
|
%
|
1
|
%
|
1
|
%
|
—
|
%
|
Nine
Months Ended
|
||||||||
(In
thousands)
|
September
27,
2009
|
September
28,
2008
|
||||||
Net
cash provided by operating activities
|
$
|
28,579
|
$
|
107,927
|
||||
Net
cash used in investing activities
|
(256,253
|
)
|
(167,191
|
)
|
||||
Net
cash provided by financing activities
|
492,007
|
31,832
|
Payments
Due by Period
|
||||||||||||||||||||
(In
thousands)
|
Total
|
2009
(remaining
3
months)
|
2010
–2011
|
2012
–2013
|
Beyond
2013
|
|||||||||||||||
Convertible
debt, including interest
|
$
|
684,488
|
$
|
3,622
|
$
|
28,973
|
$
|
28,973
|
$
|
622,920
|
||||||||||
Term
loan from Union Bank, including interest
|
31,121
|
172
|
27,177
|
3,772
|
—
|
|||||||||||||||
Loan
from Malaysian Government
|
162,665
|
—
|
—
|
—
|
162,665
|
|||||||||||||||
Customer
advances
|
97,142
|
15,084
|
18,058
|
16,000
|
48,000
|
|||||||||||||||
Lease
commitments
|
30,891
|
1,440
|
9,004
|
5,740
|
14,707
|
|||||||||||||||
Utility
obligations
|
750
|
—
|
—
|
—
|
750
|
|||||||||||||||
Non-cancelable
purchase orders
|
39,460
|
38,810
|
650
|
—
|
—
|
|||||||||||||||
Purchase
commitments under agreements
|
6,394,547
|
142,673
|
1,321,069
|
1,300,405
|
3,630,400
|
|||||||||||||||
Total
|
$
|
7,441,064
|
$
|
201,801
|
$
|
1,404,931
|
$
|
1,354,890
|
$
|
4,479,442
|
Quantitative
and Qualitative Disclosure About Market
Risk
|
Period
|
Total
Number of
Shares
Purchased
(in
thousands)(1)
|
Average
Price
Paid
Per Share
|
Total
Number of Shares Purchased as Part of Publicly Announced Plans or
Programs
|
Maximum
Number of Shares That May Yet Be Purchased Under the Publicly Announced
Plans or Programs
|
|||
June
29, 2009 through July 26, 2009
|
7
|
$25.96
|
—
|
—
|
|||
July
27, 2009 through August 23, 2009
|
11
|
$30.08
|
—
|
—
|
|||
August
24, 2009 through September 27, 2009
|
8
|
$27.53
|
—
|
—
|
|||
|
26
|
$28.15
|
—
|
—
|
(1)
|
The
total number of shares purchased includes only shares surrendered to
satisfy tax withholding obligations in connection with the vesting of
restricted stock issued to employees.
|
Exhibit
Number
|
Description
|
||
10.1*† |
Amendment
No. 1 to Supply Agreement, dated September 22, 2006, by and between
SunPower Philippines Manufacturing, Ltd. and OCI Company Ltd. (formerly
known as DC Chemical Co., Ltd.).
|
||
10.2*† |
Amendment
No. 2 to Ingot Supply Agreement, dated August 1, 2009, by and between
SunPower Corporation and Woongjin Energy Co. Ltd.
|
||
10.3*† |
Amendment
No. 3 to Polysilicon Supply Agreement, dated August 1, 2009, by and
between SunPower Philippines Manufacturing, Ltd. and Woongjin Energy Co.
Ltd.
|
||
10.4* |
Second
Amendment to Amended and Restated Credit Agreement, dated August 31, 2009,
by and between SunPower Corporation and Wells Fargo Bank, National
Association.
|
||
10.5* |
First
Amendment to Loan Agreement, dated August 31, 2009, by and among SunPower
Corporation; SunPower Corporation, Systems; SunPower North America, LLC;
and Union Bank, N.A.
|
||
10.6* |
Form
of Employment Agreement for Executive Officers.
|
||
10.7*† |
Amendment
Four to Turnkey Engineering, Procurement and Construction Agreement, dated
September 25, 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: November
2, 2009
|
By:
|
/s/ DENNIS
V. ARRIOLA
|
Dennis
V. Arriola
|
||
Senior
Vice President and
|
||
Chief
Financial Officer
|
Exhibit
Number
|
Description
|
||
10.1*† |
Amendment
No. 1 to Supply Agreement, dated September 22, 2006, by and between
SunPower Philippines Manufacturing, Ltd. and OCI Company Ltd. (formerly
known as DC Chemical Co., Ltd.).
|
||
10.2*† |
Amendment
No. 2 to Ingot Supply Agreement, dated August 1, 2009, by and between
SunPower Corporation and Woongjin Energy Co. Ltd.
|
||
10.3*† |
Amendment
No. 3 to Polysilicon Supply Agreement, dated August 1, 2009, by and
between SunPower Philippines Manufacturing, Ltd. and Woongjin Energy Co.
Ltd.
|
||
10.4* |
Second
Amendment to Amended and Restated Credit Agreement, dated August 31, 2009,
by and between SunPower Corporation and Wells Fargo Bank, National
Association.
|
||
10.5* |
First
Amendment to Loan Agreement, dated August 31, 2009, by and among SunPower
Corporation; SunPower Corporation, Systems; SunPower North America, LLC;
and Union Bank, N.A.
|
||
10.6* |
Form
of Employment Agreement for Executive Officers.
|
||
10.7*† |
Amendment
Four to Turnkey Engineering, Procurement and Construction Agreement, dated
September 25, 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
|
1.
|
All
capitalized terms used herein but not defined shall have the same meaning
attributable to such terms as defined in the
Agreement.
|
a.
|
Section
3.1 is hereby deleted in its entirety and replaced as
follows:
|
Calendar Year
|
Product Type
|
“Agreed Quantity”
|
Price
|
2008
|
Chunk
|
Lower
of (a) *** metric tons; or (b) ***% of the volume of the Product
manufactured by DCC in calendar year 2008
|
US$
***/kg
|
2009
|
Chunk
|
Lower
of (a) *** metric tons; or (b) ***% of the volume of the Product
manufactured by DCC in calendar year 2009
|
US$
***/kg
|
2010
|
Chunk
|
Lower
of (a) *** metric tons; or (b) ***% of the volume of the Product
manufactured by DCC in calendar year 2010
|
US$
***/kg
|
2011
|
Chunk
|
Lower
of (a) *** metric tons; or (b) ***% of the volume of the
|
US$
***/kg
|
Product
manufactured by DCC in calendar year 2011
|
|||
b.
|
Section
3.3 is hereby deleted in its entirety and replaced as
follows:
|
c.
|
Section
4.1.1 is hereby deleted in its entirety and
replaced
|
Date
|
Amount
|
October
1, 2006
|
US$***
|
November
1, 2006
|
US$***
|
January
2, 2007
|
US$***
|
April
1, 2007
|
US$***
|
July
1, 2007
|
US$***
|
Total
|
US$***
|
d.
|
Section
4.1.1 is hereby deleted in its entirety and replaced as
follows:
|
Calendar
Year
|
Annual
Credit Ceiling
|
2008
|
US$***
|
2009
|
US$***
|
Total
|
US$***
|
e.
|
Section
4.1.3 is hereby deleted in its entirety and replaced as
follows:
|
f.
|
Section
10.1 is hereby deleted in its entirety and replaced as
follows:
|
g.
|
Schedule
1, “Popcorn contents : less than 15% in an package” is hereby deleted in
its entirety and replaced as
follows:
|
|
3.
|
Miscellaneous.
|
|
a.
|
This
Amendment shall be deemed effective as of the date first set forth
above. Except as amended hereby, the Agreement shall remain in
full force and effect and shall otherwise be unaffected
hereby.
|
|
b.
|
This
Amendment shall be governed by and construed and enforced in accordance
with the laws of England, without giving effect to the rules respecting
its conflicts of law principles.
|
|
c.
|
All
disputes, controversies, claims or difference arising out of, or in
connection with this Amendment, or a breach hereof, shall be finally
settled by arbitration in Hong Kong in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce. The arbitration shall be conducted by an arbitration
board consisting of three arbitrators. Each Party shall appoint
one arbitrator and the two appointed arbitrators shall appoint a third
arbitrator who shall serve as the chairman of the arbitration
board. The award rendered by the arbitrators shall be final and
binding upon the Parties. Each Party consents to service of
process with respect to any such dispute by any method of notice specified
in Section
11.3 of the Agreement. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this
Amendment and is expressly
excluded.
|
|
d.
|
This
Amendment may be executed in two counterparts, each of such counterparts
shall for all purposes be deemed to be an original, and both such
counterparts shall together constitute but one and the same
instrument. If any term, provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, illegal, or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall
remain in full and effect and shall in no way be affected, impaired or
invalidated.
|
|
[Signature page
follows]
|
DC Chemical Co., Ltd. | |||
|
By:
|
/s/ *** | |
Name | *** | ||
Title | *** | ||
SunPower Philippines Manufacturing, Ltd. | |||
|
By:
|
/s/Tom Werner | |
Name | Tom Werner | ||
Title | CEO | ||
|
By:
|
/s/ P.M. Pai | |
Name | P.M. Pai | ||
Title | Chief Operating Officer | ||
|
By:
|
/s/ Jon Whiteman | |
Name | Jon Whiteman | ||
Title | VicePresident, Strategic Supply | ||
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
|
a.
|
Either
Party may at any time propose changes to the Specifications by a written
Engineering Change Notice (an “ECN”) to the
other party; provided however, Purchaser must approve all
ECN’s.
|
b.
|
The
recipient of an ECN will use all reasonable efforts to provide a detailed
response within seven (7) days of
receipt.
|
c.
|
Suppliers
will advise Purchaser of the likely impact of an ECN (including but not
limited to delivery scheduling and prices) on the provisions of any
relevant Purchase Orders.
|
d.
|
Neither
Party will unreasonably withhold or delay agreement to an ECN and the
Parties will endeavor to agree and implement at the earliest opportunity
ECN’s relating to personal and product
safety.
|
e.
|
Until
an ECN and any associated impact have been agreed in writing, the Parties
will continue to perform their obligations without taking account of that
ECN.
|
WOONGJIN
ENERGY CO., LTD
By:
/s/ Hak Do
Yoo
Name:
Hak Do
Yoo
Title:
CEO
Date:
9/18/09
|
SUNPOWER
CORPORATION
By:
/s/ Marty
Neese
Name:
Marty
Neese
Title:
COO
Date:
9-18-09
|
Year
|
Poly
Price
|
Cost
Savings
|
150mm
Ingot Price
|
165mm
Ingot Price
|
165mm
w/*** Price*
|
3
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
4
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
5
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
6
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
7
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
8
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
9
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
Year
|
Poly
Price
|
Cost
Savings
|
150mm
Ingot Price
|
160mm
Ingot Price
|
160mm
w/*** Price*
|
3
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
4
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
5
|
$***
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
6
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
7
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
8
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
|
9
|
$***
|
$***
|
$***
|
=$***
- $*** x (XXXMT/***MT)
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
|
WOONJIN ENERGY CO.,
LTD
|
SUNPOWER PHILIPPINES MANUFATURING, LTD. | |||
/s/Hak
Do Yoo
|
/s/
Marty Neese
|
|||
Name:
Hak Do Yoo
|
Name:
Marty Neese
|
|||
Title:
CEO
Date: Sept 2, 2009
|
Title:
COO
Date: 9-18-09
|
SUNPOWER CORPORATION |
WELLS
FARGO BANK,
NATIONAL ASSOCIATION
|
|||
By:
/s/Dennis Arriola
|
By:
/s/ Matthew A. Servatius
|
|||
Dennis
Arriola
|
Matthew
A. Servatius
|
|||
Chief
Financial Officer
|
Vice
President
|
a.
|
Borrower
and each Guarantor shall have executed and delivered to Lender this
Amendment; and
|
b.
|
The
representations and warranties of Borrower under the Loan Agreement and
this Amendment shall be true and correct as of the date
hereof.
|
SUNPOWER
CORPORATION
By: /s/ Dennis
Arriola
Name: Dennis
Arriola
Title: SVP
and CFO
|
UNION
BANK, N.A.
By: /s/ Allan B.
Miner
Name: Allan
B. Miner
Title: Vice
President
|
SUNPOWER
CORPORATION, SYSTEMS
By: /s/ Dennis
Arriola
Name: Dennis
Arriola
Title: SVP
and CFO
|
|
SUNPOWER
NORTH AMERICA, LLC
By:
SunPower Corporation, its sole member
By: /s/ Dennis
Arriola
Name:
Dennis Arriola
Title: SVP
and CFO
|
1.
|
Section
7(a) provides for a lump-sum payment equal to 36 months (instead of 24
months) of base salary, a lump-sum payment equal to the target annual
bonus multiplied by three (instead of two), continuation of health
benefits for up to 36 months (instead of 24
months).
|
2.
|
Section
8(a) grants accelerated vesting of awards, regardless of whether
termination or resignation is in Connection with a Change of Control
(instead of only in Connection with a Change of
Control). However, it specifies that vesting is not accelerated
with respect to performance-based equity awards which are subject to
achievement of specified milestones that are not achieved as of the
Termination Date.
|
3.
|
Section
9(e) requires Mr. Werner’s agreement not to compete for a period of twelve
months following the Termination Date if his employment is terminated by
the company without Cause or by him for Good Reason, and is not in
Connection with a Change of
Control.
|
1.
|
The
agreements become effective on November 1, 2008 (instead of August 28,
2008), when the officers’ pre-existing employment agreements expire, and
the new agreements expire on August 28,
2011.
|
2.
|
Section
10(f) cites the company’s current business location in Richmond,
California (instead of San Jose, California) as the original location for
determining whether the officers’ primary place of business is moved more
than 45 miles from their current primary place of
business.
|
1.
|
Section
7(a) provides that Mr. Neese only becomes eligible for certain benefits as
of July 2, 2009, and that prior to July 2, 2009 Mr. Neese is entitled to a
lump-sum payment equal to $1,500,000 if his employment is terminated by
the company without Cause.
|
1.
|
Section
17 incorporates Mr. Arriola’s October 13, 2008 offer letter that provides
the following additional terms:
|
a.
|
Eligible
to receive a $300,000.00 sign on bonus (less withholding tax). This bonus
will be paid in full after completion of 30 days continuous employment
with SunPower. The cash bonus shall be subject to a vest rate of 1/12th
per month. It is designed in part to incentivize you to remain
employed with SunPower for at least one full year. Therefore, it will not
be vested or earned until you have completed each monthly benchmark, and
it will not be earned in full until Arriola has completed a full year of
service with SunPower. In the event of Arriola’s voluntary termination
from SunPower before completing one year of service, unless for “Good
Reason” as defined by the Employment Agreement, the unvested cash bonus
shall be repaid by you to SunPower. If Arriola is terminated without
cause within 12 months of employment, he will not be required to repay the
unvested portion of the sign on
bonus.
|
b.
|
SunPower
will reimburse Arriola for personal legal expenses to review his offer
terms and agreements, not to exceed
$10,000.
|
c.
|
Entitled
to participate in SunPower’s Executive Relocation program. A summary of
relocation benefits is included in the table
below:
|
Benefit
|
SunPower
Executive Relocation Practice
|
|
Moving
|
Household
Goods
|
100%
of cost to move one household, including speciality pack and ship
items
|
Car(s)
|
Ship
2 cars
|
|
Recreational
Vehicles
|
none
|
|
Household
Goods storage
|
if
needed, for 12 month period
|
|
Househunting
|
Number
of trips
|
3
trips
|
Duration
|
10
days
|
|
Spouse
|
Included
|
|
Temporary
Expenses
|
Term
|
Up
to 60 days
|
Amount
|
Actual
expenses
|
|
Settling
in Allowance
|
1
month's salary payable after 30 days worked
|
|
Temporary
Housing
|
Up
to 12 months, not to exceed $80,000, or until home
sells
|
|
Selling
Old Home
|
Closing
costs
|
All
closing costs
|
Buying
old home
|
No
purchase of old home
|
|
Loss
on sale protection
|
$500,000.00
maximum benefit
|
|
Carrying
cost
|
none
|
|
Buying
New Home
|
Closing
costs
|
Cover
all closing costs on purchase of home or land
|
Mortgage
points
|
up
to 2 points
|
|
Company
Loans
|
none
|
|
Tax
Support
|
Gross
up
|
Provided
on all taxable income for relocation expenses described in this offer
letter
|
Tax
advice
|
Provided
for 2 year period
|
2.
|
Mr. Arriola’s relocation benefits
were modified on September 4, 2009. The amended
relocation benefits provide that SunPower may purchase his home at the
current fair market value, determined by a third party relocation service
company and independent appraisers. The amended relocation
benefits also provide that he will receive up to an additional $150,000
(for a maximum of $650,000) of compensation for loss on the sale of his
home. Additionally, the amended relocation benefits provide
that the compensation or loss on the sale of his home will not be deemed
earned in full until completing two more years of employment; the
compensation shall be subject to vest and deemed earned at a rate of
1/4th for each
six
|
months of continued employment. However, if SunPower terminates his employment without “Cause” (as defined in his employment agreement dated November 17, 2008), or if he resigns for “Good Reason” (as defined in his employment agreement dated November 17, 2008), prior to completing two more full years of employment with SunPower, vesting will accelerate and the unvested portion of such compensation will be deemed fully earned. . |
A.
|
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR.”
|
|
b.
|
Has
carefully read and fully understands all of the provisions of this
Agreement.
|
|
For
Employee:
|
|
Dated:
|
|
For
SunPower Corporation:
|
|
Dated:
|
By:
|
CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
|
Revised
9-24-09
|
||||||||
APPENDIX N - Termination Payment
Schedule
|
||||||||
Schedule
of Termination of Values
|
||||||||
Termination
Dollars Due*
|
%
Owed of Total Contract Price
|
If
Terminated After:
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
|
|||||
$***
|
***%
|
***
|
|
|||||
$***
|
***%
|
***
|
|
|||||
$***
|
***%
|
***
|
|
|||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
$***
|
***%
|
***
|
||||||
*Termination
values are based on a Contract Price of $***. If the Contract Price is
adjusted pursuant to the Agreement, the termination values shall be
adjusted to the product of the adjusted Contract Price and the applicable
"% Owed of Total Contract Price" for a given termination
value.
|
||||||||
Note:
|
||||||||
The
Termination Payment due and payable upon a termination on or prior to
January 1, 2009, shall be the applicable amount provided for under the
column "Termination Dollars Due" for a termination on or after a date
specified under the column "If Terminated After" less the aggregate amount
of the Contract Price paid by FPL to Contractor as of such date. The
Termination Payment due and payable upon a termination after January 1,
2009 shall be the greater of: (1) the applicable amount provided for under
the column "Termination Dollars Due" for a termination on or after a date
specified under the column "If Terminated After" less the aggregate amount
of the Contract Price paid by FPL to Contractor as of such date and (2)
the aggregate amount of outstanding approved and unpaid Requests for
Payment made pursuant to the Agreement which entitle Contractor to payment
in accordance with the Construction and Milestone Payment
Schedule. If FPL issues a Notice to Proceed before January 1,
2009, the parties will consider, in their sole discretion, amending by
mutual agreement the dates stated in this Appendix N.
|
||||||||
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)
|