As
filed with the Securities and Exchange Commission on May 8, 2008
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
SunPower
Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
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94-3008969
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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3939
North First Street
San
Jose, California 95134
(408) 240-5500
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
SunPower
Corporation 2005 Stock Incentive Plan
(Full
title of the plan)
Bruce
R. Ledesma, Esq.
General
Counsel
SunPower
Corporation
3939
North First Street
San
Jose, California 59134
(408) 240-5500
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
R.
Todd Johnson, Esq.
Stephen
E. Gillette, Esq.
Jones
Day
1755
Embarcadero Road
Palo
Alto, California 94303
(650)
739-3939
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Title
of Each Class of Securities To Be Registered
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Amount To Be
Registered (1)(2)
|
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Proposed Maximum
Offering
Price
Per Share (3)
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Proposed Maximum
Aggregate Offering
Price (3)
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Amount
of
Registration Fee
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|||||||||||
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Class A
Common Stock, par value $0.001 per share
|
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1,700,000
|
|
|
$
80.15
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$
136,255,000
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|
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$
5354.82
|
||||||||
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(1)
|
Represents
additional shares of Class A Common Stock, par
value $0.001 per share (the “Common Stock”), of SunPower Corporation, a
Delaware corporation (the “Registrant”), issuable pursuant to the Second
Amended and Restated SunPower Corporation 2005 Stock Incentive Plan (the
“Plan”) being registered hereon.
|
|
(2)
|
Pursuant
to Rule 416 of the Securities Act of 1933 (the “Securities Act”), this
Registration Statement also covers such additional shares of Common Stock
as may become issuable pursuant to the anti-dilution provisions of the
Plan.
|
|
(3)
|
Estimated
solely for purposes of calculating the amount of the registration fee,
calculated pursuant to paragraphs (c) and (h) of Rule 457 of the
General Rules and Regulations under the Securities Act, on the basis of
the average of the high and low sales prices of the Common Stock on
May 5, 2008 as reported on the Nasdaq Global
Market.
|
EXPLANATORY
NOTE
The
Registrant is filing this Registration Statement on Form S-8 for the purpose of
increasing the number of shares of Common Stock for which a Registration
Statement of the Registrant on Form S-8 relating to the Second Amended and
Restated SunPower Corporation 2005 Stock Incentive Plan (the “Plan”) is
effective.
The
contents of the Registrant’s Form S-8 Registration Statements filed with the
Securities and Exchange Commission (the “Commission”) on December 15, 2005
(File No. 333-130340) and May 7, 2007 (File No. 333-142679) are hereby
incorporated herein by reference.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION
STATEMENT
Item 3.
Incorporation of Documents by Reference.
The
following documents have been filed by the Registrant with the Commission and
are incorporated herein by reference:
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(a)
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The
Registrant’s Annual Report on Form 10-K for the year ended
December 30, 2007;
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(b)
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The
Registrant’s Current Reports on Form 8-K, filed January 16, 2008 (but only
the information reported under Item 1.01 thereof is incorporated herein by
reference), January 22, 2008, January 24, 2008 (both the Current Reports
on Form 8-K filed on this day), February 5, 2008, February 14, 2008 (but
only the information reported under Item 1.01 thereof is incorporated
herein by reference), March 28, 2008, April 10, 2008 and April 17, 2008;
and
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(c)
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The
description of the Class A Common Stock included in the Registrant’s
Form 8-A filed on October 31, 2005, and any amendment or report the
Registrant may file with the Commission for the purpose of updating such
description.
|
All
documents filed by the Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “ Exchange
Act ”) subsequent to the date of this registration statement and prior to
the filing of a post-effective amendment that indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, will be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents. Any
statement contained in any document incorporated or deemed to be incorporated by
reference herein will be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded will not be deemed, except as modified or
superseded, to constitute a part of this registration
statement.
1
Item 8. Exhibits
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Exhibit
Number
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Description
of Exhibit
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4.1
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Form
of Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.(i)2 to Amendment No. 6 to the Registrant’s
Registration Statement on Form S-1/A (Commission No. 333-127854), filed
with the Securities and Exchange Commission on November 15,
2005).
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|
4.2
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|
Form
of Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.(ii)2 to Amendment No. 1 to the Registrant’s
Registration Statement on Form S-1/A (Commission No. 333-127854), filed
with the Securities and Exchange Commission on October 11,
2005).
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4.3
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Second
Amended and Restated SunPower Corporation 2005 Stock Incentive Plan and
forms of agreements thereunder, effective May 8, 2008.
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4.4
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Investor
Rights Agreement, dated October 6, 2005, by and between the Registrant and
Cypress Semiconductor Corporation (incorporated by reference to Exhibit
10.14 to Amendment No. 1 to the Registrant’s Registration Statement on
Form S-1/A (Commission No. 333-127854), filed with the Securities and
Exchange Commission on October 11, 2005).
|
|
4.5
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|
Specimen
Class A Common Stock Certificate (incorporated by reference to Exhibit 4.1
to Amendment No. 4 to the Registrant’s Registration Statement on Form
S-1/A filed with the Securities and Exchange Commission on November 14,
2005).
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5.1
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Opinion
of Jones Day.
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23.1
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Consent
of PricewaterhouseCoopers LLP, independent registered public
accountants.
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23.2
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Consent
of Jones Day (included in Exhibit 5.1).
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24.1
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Powers
of Attorney.
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2
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of San
Jose, State of California, on this 8th day of May, 2008.
| SUNPOWER CORPORATION | |||
|
|
By:
|
/s/ Bruce R. Ledesma | |
| Name: Bruce R. Ledesma | |||
| Title: General Counsel | |||
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
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SIGNATURE
|
TITLE
|
DATE
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||
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/s/
Thomas H. Werner
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Chief
Executive Officer and Director
(Principal
Executive Officer)
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May
8, 2008
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||
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Thomas
H. Werner
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||||
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/s/
Emmanuel T. Hernandez
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Chief
Financial Officer
(Principal
Financial and Accounting Officer)
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May
8, 2008
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||
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Emmanuel
T. Hernandez
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||||
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*
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Chairman
of the Board of Directors
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May
8, 2008
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||
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T.
J. Rodgers
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*
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Director
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May
8, 2008
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||
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W.
Steve Albrecht
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||||
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*
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Director
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May
8, 2008
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||
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Betsy
S. Atkins
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||||
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*
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Director
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May
8, 2008
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||
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Pat
Wood III
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* Bruce
R. Ledesma, the undersigned attorney-in-fact, by signing his name hereto, does
hereby sign and execute this Registration Statement on behalf of the above
indicated officers and/or directors pursuant to powers of attorney filed with
the Securities and Exchange Commission.
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May
8, 2008
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By: /s/ Bruce R. Ledesma
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Bruce
R. Ledesma, Attorney-in-Fact
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||
3
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Exhibit
Number
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Description
of Exhibit
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4.1
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Form
of Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.(i)2 to Amendment No. 6 to the Registrant’s
Registration Statement on Form S-1/A (Commission No. 333-127854), filed
with the Securities and Exchange Commission on November 15,
2005).
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|
4.2
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Form
of Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.(ii)2 to Amendment No. 1 to the Registrant’s
Registration Statement on Form S-1/A (Commission No. 333-127854), filed
with the Securities and Exchange Commission on October 11,
2005).
|
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4.3
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Second
Amended and Restated SunPower Corporation 2005 Stock Incentive Plan and
forms of agreements thereunder, effective May 8, 2008.
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4.4
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Investor
Rights Agreement, dated October 6, 2005, by and between the Registrant and
Cypress Semiconductor Corporation (incorporated by reference to Exhibit
10.14 to Amendment No. 1 to the Registrant’s Registration Statement on
Form S-1/A (Commission No. 333-127854), filed with the Securities and
Exchange Commission on October 11, 2005).
|
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4.5
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Specimen
Class A Common Stock Certificate (incorporated by reference to Exhibit 4.1
to Amendment No. 4 to the Registrant’s Registration Statement on Form
S-1/A filed with the Securities and Exchange Commission on November 14,
2005).
|
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5.1
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Opinion
of Jones Day.
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23.1
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Consent
of PricewaterhouseCoopers LLP, independent registered public
accountants.
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23.2
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Consent
of Jones Day (included in Exhibit 5.1).
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24.1
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Powers
of Attorney.
|
4
EXHIBIT
4.3
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
(Adopted
by the Board on August 12, 2005, amended by the Board on September 23,
2005, amended by the Board and the stockholders on October 5, 2005, amended by
the Board and the stockholders on May 4, 2006, amended by the Board and the
stockholders effective February 12, 2007, amended by the Board and the
stockholders effective May 4, 2007, and amended by the Board and the
stockholders on May 8, 2008).
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Page
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SECTION
1.
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A-1
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SECTION
2.
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A-1
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(a)
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A-1
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(b)
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A-1
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(c)
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A-1
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(d)
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A-1
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(e)
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A-2
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(f)
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A-2
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(g)
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A-2
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(h)
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A-2
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(i)
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A-2
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(j)
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A-2
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(k)
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A-2
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(l)
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A-2
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(m)
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A-2
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(n)
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A-2
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(o)
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A-2
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(p)
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A-2
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(q)
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A-3
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(r)
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A-3
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(s)
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A-3
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(t)
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A-3
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(u)
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A-3
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(v)
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A-3
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(w)
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A-3
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(x)
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A-3
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(y)
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A-3
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(z)
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A-3
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(aa)
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A-3
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(bb)
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A-3
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(cc)
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A-3
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(dd)
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A-3
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(ee)
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A-3
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(ff)
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A-3
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(gg)
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A-3
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(hh)
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A-4
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SECTION
3.
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A-4
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(a)
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A-4
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(b)
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A-4
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(c)
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A-4
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(d)
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A-4
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SECTION
4.
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A-5
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(a)
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A-5
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(b)
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A-5
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(c)
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A-6
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(d)
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A-6
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(e)
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A-6
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SECTION
5.
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A-6
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(a)
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A-6
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(b)
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A-6
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(c)
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A-6
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SECTION
6.
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A-7
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(a)
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A-7
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(b)
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A-7
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(c)
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A-7
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(d)
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A-7
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(e)
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A-7
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SECTION
7.
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A-7
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(a)
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A-7
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(b)
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A-7
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(c)
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A-7
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(d)
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A-7
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(e)
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A-7
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(f)
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A-8
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(g)
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A-8
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(h)
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A-8
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(i)
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A-8
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(j)
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A-8
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(k)
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A-8
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SECTION
8.
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A-8
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|||
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(a)
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A-8
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(b)
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A-8
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(c)
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A-8
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(d)
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A-8
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(e)
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A-9
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(f)
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A-9
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(g)
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A-9
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SECTION
9.
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A-9
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|||
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(a)
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A-9
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(b)
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A-9
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(c)
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A-9
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(d)
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A-9
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(e)
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A-9
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(f)
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A-9
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(g)
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A-9
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(h)
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A-9
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SECTION
10.
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A-10
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|||
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(a)
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A-10
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(b)
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A-10
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(c)
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A-10
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(d)
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A-10
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(e)
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A-10
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(f)
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A-10
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(g)
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A-10
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SECTION
11.
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A-10
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(a)
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A-10
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(b)
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A-11
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(c)
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A-11
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(d)
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A-11
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SECTION
12.
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A-11
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(a)
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A-11
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(b)
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A-12
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SECTION
13.
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A-12
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SECTION
14.
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A-12
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|||
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(a)
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A-12
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(b)
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A-12
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(c)
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A-12
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SECTION
15.
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A-12
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SECTION
16.
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A-12
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(a)
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A-12
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(b)
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A-12
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SECTION
17.
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A-13
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(a)
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A-13
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(b)
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A-13
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SECTION
18.
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A-14
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SECTION
19.
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A-14
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(a)
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A-14
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(b)
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A-14
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(c)
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A-14
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SECTION
20.
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A-14
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SUNPOWER
CORPORATION
SECOND
AMENDED AND RESTATED SUNPOWER CORPORATION 2005 STOCK INCENTIVE PLAN
The Plan
was adopted by the Board of Directors on August 12, 2005, and amended by
the Board of Directors on September 23, 2005, and the Plan as so amended
was approved by the shareholders of the Company on October 10, 2005, to be
effective as of the date of the initial offering of Stock to the public pursuant
to a registration statement filed by the Company with the Securities and
Exchange Commission (the “Effective Date”), which was November 17, 2005.
The Plan reflects the two for one reverse stock split effected on
November 10, 2005. The Plan was subsequently amended by the Board of
Directors and the shareholders of the Company on May 4, 2006, amended by
the Board of Directors and the shareholders of the Company again effective
February 12, 2007, amended by the Board of Directors and the shareholders
of the Company effective May 4, 2007, and again amended by the Board of
Directors and the shareholders of the Company effective May 8, 2008. The purpose
of the Plan is to promote the long-term success of the Company and the creation
of stockholder value by (a) encouraging Employees, Outside Directors and
Consultants to focus on critical long-range objectives, (b) encouraging the
attraction and retention of Employees, Outside Directors and Consultants with
exceptional qualifications and (c) linking Employees, Outside Directors and
Consultants directly to stockholder interests through increased stock ownership.
The Plan seeks to achieve this purpose by providing for Awards in the form of
restricted shares, stock units, options (which may constitute incentive stock
options or nonstatutory stock options) or stock appreciation
rights.
(i) Any
“person” (as defined below) other than Cypress Semiconductor Corporation who by
the acquisition or aggregation of securities, is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company’s then outstanding securities ordinarily
(and apart from rights accruing under special circumstances) having the right to
vote at elections of directors (the “Base Capital Stock”); except that any
change in the relative beneficial ownership of the Company’s securities by any
person resulting solely from a reduction in the aggregate number of outstanding
shares of Base Capital Stock, and any decrease thereafter in such person’s
ownership of securities, shall be disregarded until such person increases in any
manner, directly or indirectly, such person’s beneficial ownership of any
securities of the Company; or
(ii) The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if persons who were not
stockholders of the Company immediately prior to such merger, consolidation or
other reorganization own immediately after such merger, consolidation or other
reorganization 50% or more of the voting power of the outstanding securities of
each of (A) the continuing or surviving entity and (B) any direct or
indirect parent corporation of such continuing or surviving entity;
or
(iii) The
sale, transfer or other disposition of all or substantially all of the Company’s
assets.
For
purposes of subsection (d)(ii) above, the term “person” shall have the same
meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but shall
exclude (1) a trustee or other fiduciary holding securities under an
employee benefit plan maintained by the Company or a Parent or Subsidiary and
(2) a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of the
Stock.
Any other
provision of this Section 2(d) notwithstanding, a transaction shall not
constitute a Change in Control if its sole purpose is to change the state of the
Company’s incorporation or to create a holding company that will be owned in
substantially the same proportions by the persons who held the Company’s
securities immediately before
A-1
(i) If
the Stock was traded over-the-counter on the date in question but was not traded
on The Nasdaq Stock Market LLC, then the Fair Market Value shall be equal to the
last transaction price quoted for such date by the OTC Bulletin Board or, if not
so quoted, shall be equal to the mean between the last reported representative
bid and asked prices quoted for such date by the principal automated
inter-dealer quotation system on which the Stock is quoted or, if the Stock is
not quoted on any such system, by the Pink Sheets LLC;
(ii) If
the Stock was traded on The Nasdaq Stock Market LLC, then the Fair Market Value
shall be equal to the last reported sale price quoted for such date by The
Nasdaq Stock Market LLC;
(iii) If
the Stock was traded on a United States stock exchange on the date in question,
then the Fair Market Value shall be equal to the closing price reported for such
date by the applicable composite-transactions report; and
(iv) If
none of the foregoing provisions is applicable, then the Fair Market Value shall
be determined by the Committee in good faith on such basis as it deems
appropriate.
In all
cases, the determination of Fair Market Value by the Committee shall be
conclusive and binding on all persons.
(o) “Offeree” shall mean an
individual to whom the Committee has offered the right to acquire Shares under
the Plan (other than upon exercise of an Option).
(p)
“ Option ” shall mean
an ISO or Nonstatutory Option granted under the Plan and entitling the holder to
purchase Shares.
A-2
A-3
A corporation
that attains the status of a Subsidiary on a date after the adoption of the Plan
shall be considered a Subsidiary commencing as of such date.
(i) To
interpret the Plan and to apply its provisions;
(ii) To
adopt, amend or rescind rules, procedures and forms relating to the Plan,
including rules and regulations relating to sub-plans established for the
purpose of satisfying applicable foreign laws including qualifying for preferred
tax treatment under applicable foreign tax laws;
(iii) To
authorize any person to execute, on behalf of the Company, any instrument
required to carry out the purposes of the Plan;
(iv)To
determine when Awards are to be granted under the Plan;
(v) To
select the Offerees and Optionees;
(vi)To
determine the number of Shares to be made subject to each Award;
(vii) To
prescribe the terms and conditions of each Award, including (without limitation)
the Exercise Price and Purchase Price, and the vesting or duration of the Award
(including accelerating the vesting of Awards, either at the time of the Award
or thereafter, without the consent of the Participant), to determine whether an
Option is to be classified as an ISO or as a Nonstatutory Option, and to specify
the provisions of the agreement relating to such Award;
(viii) To
amend any outstanding Award agreement, subject to applicable legal restrictions
and to the consent of the Participant if the Participant’s rights or obligations
would be materially impaired;
(ix) To
prescribe the consideration for the grant of each Award or other right under the
Plan and to determine the sufficiency of such consideration;
(x) To
determine the disposition of each Award or other right under the Plan in the
event of a Participant’s divorce or dissolution of marriage;
A-4
(xi) To
determine whether Awards under the Plan will be granted in replacement of other
grants under an incentive or other compensation plan of an acquired
business;
(xii) To
correct any defect, supply any omission, or reconcile any inconsistency in the
Plan or any Award agreement;
(xiii) To
establish or verify the extent of satisfaction of any performance goals or other
conditions applicable to the grant, issuance, exercisability, vesting and/or
ability to retain any Award; and
(xiv) To
take any other actions deemed necessary or advisable for the administration of
the Plan.
Subject
to the requirements of applicable law, the Committee may designate persons other
than members of the Committee to carry out its responsibilities and may
prescribe such conditions and limitations as it may deem appropriate, except
that the Committee may not delegate its authority with regard to the selection
for participation of or the granting of Options or other rights under the Plan
to persons subject to Section 16 of the Exchange Act. All decisions,
interpretations and other actions of the Committee shall be final and binding on
all Offerees, all Optionees, and all persons deriving their rights from an
Offeree or Optionee. No member of the Committee shall be liable for any action
that he has taken or has failed to take in good faith with respect to the Plan,
any Option, or any right to acquire Shares under the Plan.
(i) Each
Outside Director who first joins the Board of Directors on or after the date of
the Company’s 2008 annual meeting of stockholders shall receive, subject to
approval of the Plan by the Company’s stockholders, a grant of 6,600 Stock Units
(subject to adjustment under Section 11) on the date of his or her election
to the Board of Directors. Twenty percent (20%) of such Stock Units granted
under this Section 4(b)(i) shall vest and become exercisable on the first
anniversary of the date of grant. The balance of such Stock Units (i.e. the
remaining eighty percent (80%)) shall vest and become exercisable annually
over a four-year period beginning on the day which is one year after the first
anniversary of the date of grant, at an annual rate of 20% of the total number
of Stock Units. Notwithstanding the foregoing, each such Stock Unit shall become
vested if a Change in Control occurs with respect to the Company during the
Outside Director’s Service.
(ii) On
the first business day following the conclusion of each regular annual meeting
of the Company’s stockholders, commencing with the Company’s 2008 annual meeting
of stockholders, each Outside Director who was not elected to the Board for the
first time at such meeting and who will continue serving as a member of the
Board of Directors thereafter shall receive, subject to approval of the Plan by
the Company’s stockholders, a grant of 4,000 Stock Units (subject to adjustment
under Section 11), provided that such Outside Director has served on the
Board of Directors for at least six months. Twenty-five percent (25%) of
such Stock Units granted under this Section 4(b)(ii) shall vest and become
exercisable quarterly over a one-year period, with the first twenty-five percent
(25%) of such Stock Units vesting on the day that is the three-month anniversary
of the date of grant. Notwithstanding the foregoing, each such Stock
Unit granted under this Section 4(b)(ii) shall become vested if a Change in
Control occurs with respect to the Company during the Outside Director’s
Service.
(iii)
Each Outside Director or non-employee director who is first appointed Chairman
of the Board of Directors on or after the date of the Company’s 2008 annual
meeting of stockholders, shall receive, subject to approval of the Plan by the
Company’s stockholders, a grant of 10,000 Stock Units (subject to adjustment
under Section 11) on the date of his or her appointment as Chairman of the
Board of Directors. Twenty-five percent (25%) of such Stock Units granted
under this Section 4(b)(iii) shall vest and become exercisable quarterly
over a one-year period, with the first twenty-five percent (25%) of such
Stock Units vesting on the day that is the three-month anniversary of the date
of grant. Notwithstanding the foregoing, each such Stock Unit shall become
vested if a Change in Control occurs with respect to the Company during the
Service of the Chairman of the Board of Directors.
A-5
(iv) On
the first business day following the conclusion of each regular annual meeting
of the Company’s stockholders, commencing with the Company’s 2008 annual
meeting, the Chairman of the Board of Directors shall receive, subject to
approval of the Plan by the Company’s stockholders, a grant of 10,000 Stock
Units (subject to adjustment under Section 11), provided that the Chairman
of the Board of Directors has served on the Board of Directors for at least six
months and will continue serving as Chairman of the Board of Directors
thereafter. Twenty-five percent (25%) of such Stock Units granted under
this Section 4(b)(iv) shall vest and become exercisable quarterly over a
one-year period, with the first twenty-five percent (25%) of such Stock
Units vesting on the day that is the three-month anniversary of the date of
grant. Notwithstanding the foregoing, each such Stock Unit shall become vested
if a Change in Control occurs with respect to the Company during the Service of
the Chairman of Board of Directors.
(c) Additional Shares. If
Restricted Shares or Shares issued upon the exercise of Options are forfeited,
then such Shares shall again become available for Awards under the Plan. If
Stock Units, Options or SARs are forfeited or terminate for any other reason
before being exercised, then the corresponding Shares shall become available for
Awards under the Plan. If Stock Units are settled, then only the number of
Shares (if any) actually issued in settlement of such Stock Units shall reduce
the number available under Section 5(a) and the balance shall again become
available for Awards under the Plan. If SARs are exercised, then only the number
of Shares (if any) actually issued in settlement of such SARs shall reduce the
number available in Section 5(a) and the balance shall again become
available for Awards under the Plan.
A-6
SECTION
6. RESTRICTED SHARES.
A-7
such an
Award may provide that the Options will not be exercisable unless the related
SARs are forfeited. Subject to the foregoing in this Section 7(e), the
Committee at its sole discretion shall determine when all or any installment of
an Option is to become exercisable and when an Option is to expire.
(j)
Restrictions on Transfer of
Shares. Any Shares issued upon exercise of an Option shall be subject to
such special forfeiture conditions, rights of repurchase, rights of first
refusal and other transfer restrictions as the Committee may determine. Such
restrictions shall be set forth in the applicable Stock Option Agreement and
shall apply in addition to any general restrictions that may apply to all
holders of Shares.
A-8
(b)
Number of Shares. Each
SAR Agreement shall specify the number of Shares to which the SAR pertains and
shall provide for the adjustment of such number in accordance with
Section 11.
A-9
(d)
Voting and Dividend
Rights . The holders of Stock Units shall have no voting rights. Prior to
settlement or forfeiture, any Stock Unit awarded under the Plan may, at the
Committee’s discretion, carry with it a right to dividend equivalents. Such
right entitles the holder to be credited with an amount equal to all cash
dividends paid on one Share while the Stock Unit is outstanding. Dividend
equivalents may be converted into additional Stock Units. Settlement of dividend
equivalents may be made in the form of cash, in the form of Shares, or in a
combination of both. Prior to distribution, any dividend equivalents which are
not paid shall be subject to the same conditions and restrictions (including
without limitation, any forfeiture conditions) as the Stock Units to which they
attach.
(i) The
number of Options, SARs, Restricted Shares and Stock Units available for future
Awards under Section 5;
(ii) The
limitations set forth in Sections 5(a) and (b);
(iii) The
number of Stock Units to be granted to Outside Directors under
Section 4(b);
A-10
(iv) The
number of Shares covered by each outstanding Option and SAR;
(v) The
Exercise Price under each outstanding Option and SAR; or
(vi) The
number of Stock Units included in any prior Award which has not yet been
settled.
Except as
provided in this Section 11, a Participant shall have no rights by reason
of any issue by the Company of stock of any class or securities convertible into
stock of any class, any subdivision or consolidation of shares of stock of any
class, the payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class.
(i) The
continuation of the outstanding Awards by the Company, if the Company is a
surviving corporation;
(ii) The
assumption of the outstanding Awards by the surviving corporation or its parent
or subsidiary;
(iii) The
substitution by the surviving corporation or its parent or subsidiary of its own
awards for the outstanding Awards;
(iv)
Acceleration of the expiration date of the outstanding unexercised Awards to a
date not earlier than thirty (30) days after notice to the Participant;
or
(v)
Settlement of the value of the outstanding Awards which have vested as of the
consummation of such merger or other reorganization in cash or cash equivalents;
in the sole discretion of the Company, settlement of the value of some or all of
the outstanding Awards which have not vested as of the consummation of such
merger or other reorganization in cash or cash equivalents on a deferred basis
pending vesting; and the cancellation of all vested and unvested Awards as of
the consummation of such merger or other reorganization.
(i) Have
cash that otherwise would be paid to such Participant as a result of the
exercise of a SAR or the settlement of Stock Units credited to a deferred
compensation account established for such Participant by the Committee as an
entry on the Company’s books;
(ii) Have
Shares that otherwise would be delivered to such Participant as a result of the
exercise of an Option or SAR converted into an equal number of Stock Units;
or
(iii)
Have Shares that otherwise would be delivered to such Participant as a result of
the exercise of an Option or SAR or the settlement of Stock Units converted into
amounts credited to a deferred compensation account established for such
Participant by the Committee as an entry on the Company’s books. Such amounts
shall be determined by reference to the Fair Market Value of such Shares as of
the date when they otherwise would have been delivered to such
Participant.
A-11
The
Company may grant awards under other plans or programs. Such awards may be
settled in the form of Shares issued under this Plan. Such Shares shall be
treated for all purposes under the Plan like Shares issued in settlement of
Stock Units and shall, when issued, reduce the number of Shares available under
Section 5.
Shares
shall not be issued under the Plan unless the issuance and delivery of such
Shares complies with (or is exempt from) all applicable requirements of law,
including (without limitation) the Securities Act of 1933, as amended, the rules
and regulations promulgated thereunder, state securities laws and regulations
and the regulations of any stock exchange on which the Company’s securities may
then be listed, and the Company has obtained the approval or favorable ruling
from any governmental agency which the Company determines is necessary or
advisable. The Company shall not be liable to a Participant or other persons as
to: (a) the non-issuance or sale of Shares as to which the Company has been
unable to obtain from any regulatory body having jurisdiction the authority
deemed by the Company’s counsel to be necessary to the lawful issuance and sale
of any Shares under the Plan; and (b) any tax consequences expected, but
not realized, by any Participant or other person due to the receipt, exercise or
settlement of any Award granted under the Plan.
A-12
(c) To
the extent applicable, it is intended that this Plan and any grants made
hereunder comply with the provisions of Section 409A of the Code, so that the
income inclusion provisions of Section 409A(a)(1) of the Code do not apply to
the Participants. This Plan and any grants made hereunder shall be
administered in a manner consistent with this intent. Any reference
in this Plan to Section 409A of the Code will also include any regulations or
any other formal guidance promulgated with respect to such Section by the U.S.
Department of the Treasury or the Internal Revenue Service.
(d) Neither
a Participant nor any of a Participant’s creditors or beneficiaries shall have
the right to subject any deferred compensation (within the meaning of Section
409A of the Code) payable under this Plan and grants hereunder to any
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment. Except as permitted under Section 409A of
the Code, any deferred compensation (within the meaning of Section 409A of the
Code) payable to a Participant or for a Participant’s benefit under this Plan
and grants hereunder may not be reduced by, or offset against, any amount owing
by a Participant to the Company or any of its affiliates.
(e) If,
at the time of a Participant’s separation from service (within the meaning of
Section 409A of the Code), (i) the Participant shall be a specified employee
(within the meaning of Section 409A of the Code and using the identification
methodology selected by the Company from time to time) and (ii) the Company
shall make a good faith determination that an amount payable hereunder
constitutes deferred compensation (within the meaning of Section 409A of the
Code) the payment of which is required to be delayed pursuant to the six-month
delay rule set forth in Section 409A of the Code in order to avoid taxes or
penalties under Section 409A of the Code, then the Company shall not pay such
amount on the otherwise scheduled payment date but shall instead pay it, without
interest, on the first business day of the seventh month after such six-month
period.
(f) Notwithstanding
any provision of this Plan and grants hereunder to the contrary, in light of the
uncertainty with respect to the proper application of Section 409A of the Code,
the Company reserves the right to make amendments to this Plan and grants
hereunder as the Company deems necessary or desirable to avoid the imposition of
taxes or penalties under Section 409A of the Code. In any case, a
Participant shall be solely responsible and liable for the satisfaction of all
taxes and penalties that may be imposed on a Participant or for a Participant’s
account in connection with this Plan and grants hereunder (including any taxes
and penalties under Section 409A of the Code), and neither the Company nor any
of its affiliates shall have any obligation to indemnify or otherwise hold a
Participant harmless from any or all of such taxes or penalties.
A-13
No
provision of the Plan, nor any right or Option granted under the Plan, shall be
construed to give any person any right to become, to be treated as, or to remain
an Employee. The Company and its Subsidiaries reserve the right to terminate any
person’s Service at any time and for any reason, with or without
notice.
SECTION
20. EXECUTION.
To record
the adoption of the Plan by the Board of Directors, the Company has caused its
authorized officer to execute the same.
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SUNPOWER
CORPORATION
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By:
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Name:
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|
Title:
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||
A-14
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE
OF STOCK OPTION GRANT
You have
been granted the following Option to purchase Class A Common Stock of SunPower
Corporation (the “Company”) under the Second Amended and Restated SunPower
Corporation 2005 Stock Incentive Plan (the “Plan”):
|
Name
of Optionee:
|
________________
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|
Total
Number of Option Shares Granted:
|
________________
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|
Type
of Option:
|
Incentive
Stock Option
|
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Nonstatutory
Stock Option
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|
Exercise
Price Per Share:
|
$
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Grant
Date:
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________________
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Vesting
Commencement Date:
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________________
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Vesting
Schedule:
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________________
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Expiration
Date:
|
________________;
this Option expires earlier if your Service terminates earlier, as
described in the Stock Option
Agreement.
|
By your
signature and the signature of the Company’s representative below, you and the
Company agree that this Option is granted under and governed by the term and
conditions of the Plan and the Stock Option Agreement, both of which are
attached to and made a part of this document.
By signing this document you further
agree that the Company may deliver by e-mail all documents relating to the Plan
or this award (including without limitation, prospectuses required by the
Securities and Exchange Commission) and all other documents that the Company is
required to deliver to its security holders (including without limitation,
annual reports and proxy statements). You also agree that the Company
may deliver these documents by posting them on a website maintained by the
Company or by a third party under contract with the Company. If the
Company posts these documents on a website, it will notify you by
e-mail.
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OPTIONEE:
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SUNPOWER
CORPORATION
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||
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By:
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Optionee’s
Signature
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|||
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Title:
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Optionee’s
Printed Name
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B-1
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
STOCK
OPTION AGREEMENT
|
Tax
Treatment
|
This
Option is intended to be an incentive stock option under Section 422 of
the Internal Revenue Code or a nonstatutory option, as provided in the
Notice of Stock Option Grant. Even if this Option is designated as an
incentive stock option, it shall be deemed to be a nonstatutory option to
the extent required by the $100,000 annual limitation under Section 422(d)
of the Internal Revenue Code.
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Vesting
|
This
Option becomes exercisable in installments, as shown in the Notice of
Stock Option Grant. This Option will in no event become exercisable for
additional shares after your service as an Employee or a Consultant has
terminated for any reason.
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Term
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This
Option expires in any event at the close of business at Company
headquarters on the day before the 10th anniversary of the Grant Date, as
shown on the Notice of Stock Option Grant (fifth anniversary for a more
than 10% stockholder as provided under the Plan if this is an incentive
stock option). This Option may expire earlier if your Service terminates,
as described below.
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Regular
Termination
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If
your Service terminates for any reason except death or “Total and
Permanent Disability” (as defined in the Plan), then this Option will
expire at the close of business at Company headquarters on the date three
(3) months after the date your Service terminates (or, if earlier, the
Expiration Date). The Company has discretion to determine when your
Service terminates for all purposes of the Plan and its determinations are
conclusive and binding on all persons.
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Death
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If
your Service terminates because of death, then this Option will expire at
the close of business at Company headquarters on the date 12 months after
the date your Service terminates (or, if earlier, the Expiration Date).
During that period of up to 12 months, your estate or heirs may exercise
the Option.
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Disability
|
If
your Service terminates because of your Total and Permanent Disability,
then this Option will expire at the close of business at Company
headquarters on the date 12 months after the date your Service terminates
(or, if earlier, the Expiration Date).
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Leaves
of Absence
|
For
purposes of this Option, your Service does not terminate when you go on a
military leave, a sick leave or another bona fide leave of
absence, if the leave was approved by the Company in writing and if
continued crediting of Service is required by the terms of the leave or by
applicable law. But your Service terminates when the approved leave ends,
unless you immediately return to active
work.
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B-2
|
If
you go on a leave of absence, then the vesting schedule specified in the
Notice of Stock Option Grant may be adjusted in accordance with the
Company’s leave of absence policy or the terms of your leave. If you
commence working on a part-time basis, then the vesting schedule specified
in the Notice of Stock Option Grant may be adjusted in accordance with the
Company’s part-time work policy or the terms of an agreement between you
and the Company pertaining to your part-time schedule.
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||
|
Restrictions
on Exercise
|
The
Company will not permit you to exercise this Option if the issuance of
shares at that time would violate any law or regulation. The inability of
the Company to obtain approval from any regulatory body having authority
deemed by the Company to be necessary to the lawful issuance and sale of
the Company stock pursuant to this Option shall relieve the Company of any
liability with respect to the non-issuance or sale of the Company stock as
to which such approval shall not have been obtained. However, the Company
shall use its best efforts to obtain such approval.
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Notice
of Exercise
|
When
you wish to exercise this Option you must notify the Company by completing
the attached “Notice of Exercise of Stock Option” form and filing it with
the Human Resources Department of the Company. Your notice must specify
how many shares you wish to purchase. Your notice must also specify how
your shares should be registered. The notice will be effective when it is
received by the Company. If someone else wants to exercise this Option
after your death, that person must prove to the Company’s satisfaction
that he or she is entitled to do so.
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Form
of Payment
|
When
you submit your notice of exercise, you must include payment of the Option
exercise price for the shares you are purchasing. Payment may be made in
the following form(s):
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|
|
•
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Your
personal check, a cashier’s check or a money order.
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|
|
•
|
Certificates
for shares of Company stock that you own, along with any forms needed to
effect a transfer of those shares to the Company. The value of the shares,
determined as of the effective date of the Option exercise, will be
applied to the Option exercise price. Instead of surrendering shares of
Company stock, you may attest to the ownership of those shares on a form
provided by the Company and have the same number of shares subtracted from
the Option shares issued to you. However, you may not surrender, or attest
to the ownership of shares of Company stock in payment of the exercise
price if your action would cause the Company to recognize a compensation
expense (or additional compensation expense) with respect to this Option
for financial reporting purposes.
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•
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By
delivery on a form approved by the Committee of an irrevocable direction
to a securities broker approved by the Company to sell all or part of your
Option shares and to deliver to the Company from the sale proceeds an
amount sufficient to pay the Option exercise price and any
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|
B-3
| withholding taxes. The balance of the sale proceeds, if any, will be delivered to you. The directions must be given by signing a special “Notice of Exercise” form provided by the Company. | ||
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•
|
By
delivery on a form approved by the Committee of an irrevocable direction
to a securities broker or lender approved by the Company to pledge Option
shares as security for a loan and to deliver to the Company from the loan
proceeds an amount sufficient to pay the Option exercise price and any
withholding taxes. The directions must be given by signing a special
“Notice of Exercise” form provided by the Company.
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|
|
•
|
Any
other form permitted by the Committee in its sole
discretion.
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|
Notwithstanding
the foregoing, payment may not be made in any form that is unlawful, as
determined by the Committee in its sole discretion.
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||
|
Withholding
Taxes and Stock Withholding
|
You
will not be allowed to exercise this Option unless you make arrangements
acceptable to the Company to pay any withholding taxes that may be due as
a result of the Option exercise. These arrangements may include
withholding shares of Company stock that otherwise would be issued to you
when you exercise this Option. The value of these shares, determined as of
the effective date of the Option exercise, will be applied to the
withholding taxes.
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Restrictions
on Resale
|
By
signing this Agreement, you agree not to sell any Option shares at a time
when applicable laws, Company policies or an agreement between the Company
and its underwriters prohibit a sale. This restriction will apply as long
as you are an employee, consultant or director of the Company or a
subsidiary of the Company.
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Transfer of Option
|
In
general, only you can exercise this Option prior to your death. You cannot
transfer or assign this Option, other than as designated by you by will or
by the laws of descent and distribution, except as provided below. For
instance, you may not sell this Option or use it as security for a loan.
If you attempt to do any of these things, this Option will immediately
become invalid. You may in any event dispose of this Option in your will.
Regardless of any marital property settlement agreement, the Company is
not obligated to honor a notice of exercise from your former spouse, nor
is the Company obligated to recognize your former spouse’s interest in
your Option in any other way.
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|
However,
if this Option is designated as a nonstatutory stock option in the Notice
of Stock Option Grant, then the Committee may, in its sole discretion,
allow you to transfer this Option as a gift to one or more family members.
For purposes of this Agreement, “family member” means a child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, or sister-in-law
(including adoptive relationships), any individual sharing your household
(other than a tenant or employee), a trust in which one or
|
||
B-4
| more of these individuals have more than 50% of the beneficial interest, a foundation in which you or one or more of these persons control the management of assets, and any entity in which you or one or more of these persons own more than 50% of the voting interest. | ||
|
In
addition, if this Option is designated as a nonstatutory stock option in
the Notice of Stock Option Grant, then the Committee may, in its sole
discretion, allow you to transfer this option to your spouse or former
spouse pursuant to a domestic relations order in settlement of marital
property rights.
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||
|
The
Committee will allow you to transfer this Option only if both you and the
transferee(s) execute the forms prescribed by the Committee, which include
the consent of the transferee(s) to be bound by this
Agreement.
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||
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Retention
Rights
|
Neither
your Option nor this Agreement gives you the right to be retained by the
Company or a subsidiary of the Company in any capacity. The Company and
its subsidiaries reserve the right to terminate your Service at any time,
with or without cause.
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Stockholder
Rights
|
You,
or your estate or heirs, have no rights as a stockholder of the Company
until you have exercised this Option by giving the required notice to the
Company and paying the exercise price. No adjustments are made for
dividends or other rights if the applicable record date occurs before you
exercise this Option, except as described in the Plan.
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|
Adjustments
|
In
the event of a stock split, a stock dividend or a similar change in
Company stock, the number of shares covered by this Option and the
exercise price per share may be adjusted pursuant to the
Plan.
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|
Applicable
Law
|
This
Agreement will be interpreted and enforced under the laws of the State of
Delaware (without regard to their choice-of-law
provisions).
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|
The
Plan and Other Agreements
|
The
text of the Plan is incorporated in this Agreement by reference. All
capitalized terms in the Stock Option Agreement shall have the meanings
assigned to them in the Plan. This Agreement and the Plan constitute the
entire understanding between you and the Company regarding this Option.
Any prior agreements, commitments or negotiations concerning this Option
are superseded. This Agreement may be amended only by another written
agreement, signed by both parties.
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|
BY
SIGNING THE COVER SHEET OF THIS AGREEMENT,
YOU
AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED
ABOVE AND IN THE PLAN.
B-5
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE
OF EXERCISE OF STOCK OPTION
You
must sign this Notice on the last page before submitting
it
to the Company
|
OPTIONEE
INFORMATION:
|
||||
|
Name:
|
Social
Security Number:
|
|||
|
Address:
|
Employee
Number:
|
|||
|
OPTION
INFORMATION:
|
|||
|
Date
of Grant:
|
_______________,
200__
|
Type
of Stock Option:
|
|
|
Exercise
Price per Share: $______________
|
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Nonstatutory
(NSO)
|
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Total
number of shares of Class A Common Stock of SunPower Corporation (the
“Company”) covered by option: __________
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Incentive
(ISO)
|
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EXERCISE
INFORMATION:
Number of
shares of Class A Common Stock of the Company for which option is being
exercised now: .
(These shares are referred to below as the “Purchased Shares.”)
Total
exercise price for the Purchased Shares: $
Form of
payment enclosed [check all that
apply]:
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|
Check
for $ ,
payable to “SunPower Corporation”
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Certificate(s)
for ______________ shares of Class A Common Stock of the Company that I
have owned for at least six months or have purchased in the open market.
(These shares will be valued as of the date when the Company receives this
notice.)
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Attestation
Form covering
shares of Class A Common Stock of the Company. (These shares will be
valued as of the date when the Company receives this
notice.)
|
B-6
Name(s)
in which the Purchased Shares should be registered
[please check one
box]:
|
|
In
my name only
|
|
|
|
In
the names of my spouse and myself as community property
|
My
spouse’s name (if applicable):
____________________________________________
|
|
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In
the names of my spouse and myself as joint tenants with the right of
survivorship
|
|
|
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In
the name of an eligible revocable trust
|
Full
legal name of revocable trust:
____________________________________________
____________________________________________
____________________________________________
|
|
The
certificate for the Purchased Shares should be sent to the following
address:
|
____________________________________________
____________________________________________
____________________________________________
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ACKNOWLEDGMENTS:
|
1.
|
I
understand that all sales of Purchased Shares are subject to compliance
with the Company’s policy on securities trades.
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2.
|
I
hereby acknowledge that I received and read a copy of the prospectus
describing the Second Amended and Restated SunPower Corporation 2005 Stock
Incentive Plan and the tax consequences of an exercise.
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3.
|
In
the case of a nonstatutory option, I understand that I must recognize
ordinary income equal to the spread between the fair market value of the
Purchased Shares on the date of exercise and the exercise price. I further
understand that I am required to pay withholding taxes at the time of
exercising a nonstatutory option.
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4.
|
In
the case of an incentive stock option, I agree to notify the Company if I
dispose of the Purchased Shares before I have met both of the tax holding
periods applicable to incentive stock options (that is, if I make a
disqualifying disposition).
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5.
|
I
acknowledge that the Company has encouraged me to consult my own adviser
to determine the form of ownership that is appropriate for me. In the
event that I choose to transfer my Purchased Shares to a trust that does
not satisfy the requirements of the Internal Revenue Service (i.e., a
trust that is not an eligible revocable trust), I also acknowledge that
the transfer will be treated as a “disposition” for incentive stock option
tax purposes. As a result, the favorable incentive stock option tax
treatment will be unavailable and other unfavorable tax consequences may
occur.
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SIGNATURE
AND DATE:
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|||
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__,
200_
|
|||
B-7
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE
OF GRANT OF RESTRICTED STOCK
Unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings in this Notice of Grant.
Name:
You have
been granted ______
Restricted Shares. Additional terms of this grant are as
follows:
Date of
Grant __________
Grant
Number __________
Vesting
Date: __________
|
Vesting
Schedule
|
__________
|
Expiration
Date: N/A
You must
sign and return this Notice of Grant to the Company prior to the Expiration
Date. If you fail to do so, then the Award granted hereunder will be
deemed null and void.
You will
not receive a certificate representing the Restricted Shares upon vesting,
unless and until you have made satisfactory arrangements with the Company with
respect to the payment of any income, employment and other taxes which the
Company determines must be withheld with respect to such Shares upon their
vesting. You
hereby agree to accept as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions relating to the Plan and
this Award.
By your
signature below prior to the Expiration Date, you agree that this Notice of
Grant, the form of Restricted Stock Agreement attached as Exhibit A hereto and
the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan
constitute your entire agreement with respect to this Award and may not be
modified adversely to your interest except by means of a writing signed by the
Company and you.
GRANTEE:
_______________________________
Signature
________________________________
Print Name
C-1
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED
STOCK AGREEMENT
EXHIBIT
A
1. Grant. The
Company hereby grants to ________ (the “Grantee”) an
award of Restricted Shares (“Restricted Shares”), as set forth in the Notice of
Grant of Restricted Stock (the “Notice of Grant”) and subject to the terms and
conditions in this Restricted Stock Agreement and the Second Amended and
Restated SunPower Corporation 2005 Stock Incentive Plan (the
“Plan”). Unless otherwise defined herein, the terms defined in the
Plan and the Notice of Grant shall have the same defined meanings in this
Restricted Stock Agreement.
2. Vesting
Schedule. Subject to paragraph 3, the Restricted Shares
awarded by this Restricted Stock Agreement will vest in the Grantee according to
the vesting schedule specified in the Notice of Grant.
3. Forfeiture upon Termination
of Service. Notwithstanding any contrary provision of this
Restricted Stock Agreement or the Notice of Grant, if the Grantee terminates
Service with the Company for any or no reason prior to vesting, the unvested
Restricted Shares awarded by this Restricted Stock Agreement will thereupon be
forfeited at no cost to the Company.
4. Issuance of Restricted
Shares. The Shares subject to this grant of Restricted Shares
shall be registered in the Grantee’s name and shall be fully paid and
nonassessable. If any certificate or other evidence of ownership is
issued, it shall bear an appropriate legend referring to the restrictions
hereinafter set forth.
5. Grant is Not
Transferable. The Shares subject to this grant of Restricted
Shares and the rights and privileges conferred hereby will not be transferred,
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and will not be subject to sale under execution, attachment or
similar process, unless the Restricted Shares are nonforfeitable as provided in
Section 2 hereof; provided, however, that the
Grantee’s rights with respect to such Shares may be transferred by will or
pursuant to the laws of descent and distribution. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any
right or privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, this grant and the rights and
privileges conferred hereby immediately will become null and void.
6. Rights as Stockholder;
Dividends. Except as otherwise provided herein, from and after
the Date of Grant, the Grantee shall have all of the rights of a shareholder
with respect to the Restricted Shares covered by this Restricted Stock
Agreement, including the right to vote such Restricted Shares and receive any
dividends that may be paid thereon; provided, however,
C-2
7. No Effect on
Employment. The Grantee’s employment with the Company and its
Subsidiaries is on an at-will basis only. Accordingly, the terms of
the Grantee’s employment with the Company and its Subsidiaries will be
determined from time to time by the Company or the Subsidiary employing the
Grantee (as the case may be), and the Company or the Subsidiary will have the
right, which is hereby expressly reserved, to terminate or change the terms of
the employment of the Grantee at any time for any reason whatsoever, with or
without good cause or notice.
8. No Employment
Contract. This award is a
voluntary, discretionary bonus being made on a one-time basis and it does not
constitute a commitment to make any future awards. This award of
Restricted Shares and any payments made hereunder will not be considered salary
or other compensation for purposes of any severance pay or similar allowance,
except as otherwise required by law. Nothing in this Restricted Stock
Agreement will give the Grantee any right to continue employment with the
Company or any Subsidiary, as the case may be, or interfere in any way with the
right of the Company or a Subsidiary to terminate the employment of the
Grantee.
9. Address for
Notices. Any notice to be given to the Company under the terms
of this Restricted Stock Agreement will be addressed to the Company at 3939
North First Street, San Jose, California 95134, Attn: Treasury, or at
such other address as the Company may hereafter designate in writing or
electronically.
10. Taxes and
Withholding. To the extent
that the Company is required to withhold any federal, state, local or foreign
tax in connection with any delivery of Shares pursuant to this Restricted Stock
Agreement, and the amounts available to the Company are insufficient, it shall
be a condition to the receipt of such delivery that the Grantee make
arrangements satisfactory to the Company for payment of the balance of such
taxes required to be withheld. Unless otherwise determined by the
Committee, this tax withholding obligation shall be satisfied by the retention
by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the
Shares retained for payment of the tax must satisfy the minimum tax withholding
amount permissible under the method that results in the least amount
withheld.
11. Plan
Governs. This Restricted Stock Agreement and the Notice of
Grant are subject to all terms and provisions of the Plan. In the
event of a conflict between one or more provisions of this Restricted Stock
Agreement or the Notice of Grant and one or more provisions of the Plan, the
provisions of the Plan will govern.
12. Committee
Authority. The Committee will have the power to
interpret the Plan and this Restricted Stock Agreement and to adopt such rules
for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules
C-3
(including,
but not limited to, the determination of whether or not any Restricted Shares
have vested). All actions taken and all interpretations and
determinations made by the Administrator in good faith will be final and binding
upon the Grantee, the Company and all other interested persons. No
member of the Administrator will be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or
this Restricted Stock Agreement.
13. Amendments. Any
amendment to the Plan shall be deemed to be an amendment to this Restricted
Stock Agreement to the extent that the amendment is applicable hereto; provided, however, that no
amendment shall adversely affect the rights of the Grantee under this Restricted
Stock Agreement without the Grantee’s consent.
14. Severability. If
any provision of this Restricted Stock Agreement or the application of any
provision hereof to any person or circumstances is held invalid or
unenforceable, the remainder of this Restricted Stock Agreement and the
application of such provision in any other person or circumstances shall not be
affected, and the provisions so held to be invalid or unenforceable shall be
reformed to the extent (and only to the extent) necessary to make it enforceable
and valid.
15. Governing
Law. This Restricted Stock Agreement shall be governed by and
construed in accordance with the internal substantive laws of the State of
Delaware, without giving effect to any principle of law that would result in the
application of the law of any other jurisdiction.
C-4
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE
OF GRANT OF RESTRICTED STOCK UNITS
Unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings in this Notice of Grant.
Name:
You have
been granted ______ Restricted Stock Units
(“RSUs”). Additional terms of this grant are as follows:
|
Date
of Grant:
|
|
Grant
Number:
|
|
Vesting
Schedule:
|
|
Expiration
Date:
|
N/A
|
You must
sign and return this Notice of Grant to the Company prior to the Expiration
Date. If you fail to do so, then the Award granted hereunder will be
deemed null and void.
You will
not receive a certificate representing the Shares upon the RSUs becoming
nonforfeitable, unless and until you have made satisfactory arrangements with
the Company with respect to the payment of any income, employment and other
taxes which the Company determines must be withheld with respect to such Shares
upon the RSUs becoming nonforfeitable. You hereby agree to
accept as binding, conclusive and final all decisions or interpretations of the
Committee upon any questions relating to the Plan and this Award.
By your
signature below prior to the Expiration Date, you agree that this Notice of
Grant, the form of Restricted Stock Unit Agreement attached as Exhibit A hereto and
the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan
constitute your entire agreement with respect to this Award and may not be
modified adversely to your interest except by means of a writing signed by the
Company and you.
GRANTEE: SUNPOWER
CORPORATION
_________________________ By:
Signature
Name:
Title:
_________________________
Print Name
Print Name
D-1
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED
STOCK UNIT AGREEMENT
EXHIBIT
A
1. Grant. The
Company hereby grants to ________ (the “Grantee”) an award
of Restricted Stock Units (“RSUs”), as set forth in the Notice of Grant of
Restricted Stock Units (the “Notice of Grant”) and subject to the terms and
conditions in this Restricted Stock Unit Agreement and the Second Amended and
Restated SunPower Corporation 2005 Stock Incentive Plan, as may be amended from
time to time (the “Plan”). The term “Restricted Stock Units” shall
have the same meaning as that ascribed to the term “Stock Units” in the
Plan. All terms used herein with initial capital letters and not
otherwise defined herein or in the Notice of Grant that are defined in the Plan
shall have the meanings assigned to them in the Plan.
2. Payment of
RSUs. The RSUs covered by this Restricted Stock Unit Agreement
shall become payable to Grantee if they become nonforfeitable in accordance with
Section 3 (Vesting Schedule) hereof.
3. Vesting
Schedule. Subject to Section 4 (Forfeiture upon Termination of
Service), the Grantee’s right to receive the Shares subject to the RSUs awarded
by this Restricted Stock Unit Agreement will vest in the Grantee according to
the vesting schedule specified in the Notice of Grant.
4. Forfeiture upon Termination
of Service. Notwithstanding any contrary provision of this
Restricted Stock Unit Agreement or the Notice of Grant, if the Grantee
terminates Service with the Company for any or no reason prior to vesting, the
unvested RSUs awarded by this Restricted Stock Unit Agreement will thereupon be
forfeited at no cost to the Company.
5. Form and Time of Payment of
RSUs. Except as otherwise provided for in Section 8
(Adjustments), payment for the RSUs shall be made in form of the Shares at the
time they become nonforfeitable in accordance with Section 3 (Vesting Schedule)
hereof.
6. No Dividend
Equivalents. The Grantee of RSUs shall not be entitled to
dividend equivalents.
7. Grant is Not
Transferable. Subject to the provisions of Section 10(f) of the Plan
regarding the designation of beneficiaries, neither the RSUs granted hereby nor
any interest therein or in the Shares related thereto shall be transferable
other than by will or the laws of descent and distribution prior to
payment.
8. Adjustments. In the event of any
change in the aggregate number of outstanding Shares by reason of (a) any stock
dividend, extraordinary dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or (b)
any
D-2
9. Compliance with Section 409A
of the Code. To the extent applicable, it is intended that
this Restricted Stock Unit Agreement and the Plan comply with the provisions of
Section 409A of the Code, so that the income inclusion provisions of Section
409A(a)(1) do not apply to the Grantee. This Restricted Stock Unit
Agreement and the Plan shall be administered in a manner consistent with this
intent.
10. No Service
Contract. The grant of the RSUs to
the Grantee is a voluntary, discretionary bonus being made on a one-time basis
and it does not constitute a commitment to make any future
awards. The grant of the RSUs and any payments made hereunder will
not be considered salary or other compensation for purposes of any severance pay
or similar allowance, except as otherwise required by law. Nothing in
this Restricted Stock Unit Agreement will give the Grantee any right to continue
Service with the Company or any Subsidiary, as the case may be, or interfere in
any way with the right of the Company or a Subsidiary to terminate the Service
of the Grantee.
11. No Effect on
Service. The Grantee’s Service with the Company and its
Subsidiaries is on an at-will basis only. Accordingly, the terms of
the Grantee’s Service with the Company and its Subsidiaries will be determined
from time to time by the Company or the Subsidiary to which the Grantee provides
Service (as the case may be), and the Company or the Subsidiary will have the
right, which is hereby expressly reserved, to terminate or change the terms of
the Service of the Grantee at any time for any reason whatsoever, with or
without good cause or notice.
12. Address for
Notices. Any notice to be given to the Company under the terms
of this Restricted Stock Unit Agreement will be addressed to the Company at 3939
North First Street, San Jose, California 95134, Attn: Treasury, or at
such other address as the Company may hereafter designate in writing or
electronically.
13. Taxes and
Withholding. To the extent
that the Company is required to withhold any federal, state, local or foreign
tax in connection with any delivery of Shares pursuant to this Restricted Stock
Unit Agreement, and the amounts available to the Company are insufficient, it
shall be a condition to the receipt of such delivery that the Grantee make
arrangements satisfactory to the Company for payment of the balance of such
taxes required to be withheld. Unless otherwise determined by the
Committee, this tax withholding obligation shall be satisfied by the retention
by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the
Shares retained for payment of the tax must satisfy the minimum tax withholding
amount permissible under the method that results in the least amount
withheld.
D-3
14. Plan
Governs. This Restricted Stock Unit Agreement and the Notice
of Grant are subject to all terms and provisions of the Plan. In the
event of a conflict between one or more provisions of this Restricted Stock Unit
Agreement or the Notice of Grant and one or more provisions of the Plan, the
provisions of the Plan will govern.
15. Committee
Authority. The Committee will have the power to
interpret the Plan and this Restricted Stock Unit Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules (including, but
not limited to, the determination of whether or not any RSUs have
vested). All actions taken and all interpretations and determinations
made by the Committee in good faith will be final and binding upon the Grantee,
the Company and all other interested persons. No member of the
Committee will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this Restricted
Stock Unit Agreement.
16. Data
Privacy. Information about the Grantee and the Grantee’s
participation in the Plan may be collected, recorded, and held, used and
disclosed for any purpose related to the administration of the
Plan. The Grantee understands that such processing of this
information may need to be carried out by the Company and its Subsidiaries and
by third party administrators whether such persons are located within the
Grantee’s country or elsewhere, including the United States of
America. The Grantee consents to the processing of information
relating to the Grantee and the Grantee’s participation in the Plan in any one
or more of the ways referred to above.
17. Amendments. Any
amendment to the Plan shall be deemed to be an amendment to this Restricted
Stock Unit Agreement to the extent that the amendment is applicable hereto;
provided, however, that no
amendment shall adversely affect the rights of the Grantee under this Restricted
Stock Unit Agreement without the Grantee’s consent.
18. Severability. If
any provision of this Restricted Stock Unit Agreement or the application of any
provision hereof to any person or circumstances is held invalid or
unenforceable, the remainder of this Restricted Stock Unit Agreement and the
application of such provision in any other person or circumstances shall not be
affected, and the provisions so held to be invalid or unenforceable shall be
reformed to the extent (and only to the extent) necessary to make it enforceable
and valid.
19. Successors and
Assigns. Without limiting Section 7 (Grant is Not
Transferable) hereof, the provisions of this Restricted Stock Unit Agreement
shall inure to the benefit of, and be binding upon, the successors,
administrators, heirs, legal representatives and assigns of the Grantee, and the
successors and assigns of the Company.
20. Governing
Law. This Restricted Stock Unit Agreement shall be governed by
and construed in accordance with the internal substantive laws of the State of
Delaware, without giving effect to any principle of law that would result in the
application of the law of any other jurisdiction.
D-4
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
NOTICE
OF GRANT OF RESTRICTED STOCK UNITS
Unless
otherwise defined herein, the terms defined in the Plan shall have the same
defined meanings in this Notice of Grant.
You have
been granted the number of Restricted Stock Units (“RSUs”) in the amount and on
the date, and subject to the other terms indicated in the “Summary of Award” on
the online acceptance web page.
You will
not receive a certificate representing the Shares upon the RSUs becoming
nonforfeitable, unless and until you have made satisfactory arrangements with
the Company with respect to the payment of any income, employment and other
taxes which the Company determines must be withheld with respect to such Shares
upon the RSUs becoming nonforfeitable. You hereby agree to
accept as binding, conclusive and final all decisions or interpretations of the
Committee upon any questions relating to the Plan and this Award.
By
checking the boxes on Step 2 of the online acceptance, you agree that this
Notice of Grant, the form of Restricted Stock Unit Agreement attached as Exhibit A hereto and
the Second Amended and Restated SunPower Corporation 2005 Stock Incentive Plan
constitute your entire agreement with respect to this Award and may not be
modified adversely to your interest except by means of a writing signed by the
Company and you.
E-1
SECOND
AMENDED AND RESTATED
SUNPOWER
CORPORATION 2005 STOCK INCENTIVE PLAN
RESTRICTED
STOCK UNIT AGREEMENT
EXHIBIT
A
1. Grant. The
Company hereby grants you (the “Grantee”) an award
of Restricted Stock Units (“RSUs”), as set forth in the Notice of Grant of
Restricted Stock Units (the “Notice of Grant”) and subject to the terms and
conditions in this Restricted Stock Unit Agreement and the Second Amended and
Restated SunPower Corporation 2005 Stock Incentive Plan, as may be amended from
time to time (the “Plan”). The term “Restricted Stock Units” shall
have the same meaning as that ascribed to the term “Stock Units” in the
Plan. All terms used herein with initial capital letters and not
otherwise defined herein or in the Notice of Grant that are defined in the Plan
shall have the meanings assigned to them in the Plan.
2. Payment of
RSUs. The RSUs covered by this Restricted Stock Unit Agreement
shall become payable to Grantee if they become nonforfeitable in accordance with
Section 3 (Vesting Schedule) hereof.
3. Vesting
Schedule. Subject to Section 4 (Forfeiture upon Termination of
Service), the Grantee’s right to receive the Shares subject to the RSUs awarded
by this Restricted Stock Unit Agreement will vest in the Grantee according to
the vesting schedule specified separately by the Company to the
Grantee.
4. Forfeiture upon Termination
of Service. Notwithstanding any contrary provision of this
Restricted Stock Unit Agreement or the Notice of Grant, if the Grantee
terminates Service with the Company for any or no reason prior to vesting, the
unvested RSUs awarded by this Restricted Stock Unit Agreement will thereupon be
forfeited at no cost to the Company.
5. Form and Time of Payment of
RSUs. Except as otherwise provided for in Section 8
(Adjustments), payment for the RSUs shall be made in form of the Shares at the
time they become nonforfeitable in accordance with Section 3 (Vesting Schedule)
hereof.
6. No Dividend
Equivalents. The Grantee of RSUs shall not be entitled to
dividend equivalents.
7. Grant is Not
Transferable. Subject to the provisions of Section 10(f) of the Plan
regarding the designation of beneficiaries, neither the RSUs granted hereby nor
any interest therein or in the Shares related thereto shall be transferable
other than by will or the laws of descent and distribution prior to
payment.
8. Adjustments. In the event of any
change in the aggregate number of outstanding Shares by reason of (a) any stock
dividend, extraordinary dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or (b)
any
E-2
9. Compliance with Section 409A
of the Code. To the extent applicable, it is intended that
this Restricted Stock Unit Agreement and the Plan comply with the provisions of
Section 409A of the Code, so that the income inclusion provisions of Section
409A(a)(1) do not apply to the Grantee. This Restricted Stock Unit
Agreement and the Plan shall be administered in a manner consistent with this
intent.
10. No Service
Contract. The grant of the RSUs to
the Grantee is a voluntary, discretionary bonus being made on a one-time basis
and it does not constitute a commitment to make any future
awards. The grant of the RSUs and any payments made hereunder will
not be considered salary or other compensation for purposes of any severance pay
or similar allowance, except as otherwise required by law. Nothing in
this Restricted Stock Unit Agreement will give the Grantee any right to continue
Service with the Company or any Subsidiary, as the case may be, or interfere in
any way with the right of the Company or a Subsidiary to terminate the Service
of the Grantee.
11. No Effect on
Service. The Grantee’s Service with the Company and its
Subsidiaries is on an at-will basis only. Accordingly, the terms of
the Grantee’s Service with the Company and its Subsidiaries will be determined
from time to time by the Company or the Subsidiary to which the Grantee provides
Service (as the case may be), and the Company or the Subsidiary will have the
right, which is hereby expressly reserved, to terminate or change the terms of
the Service of the Grantee at any time for any reason whatsoever, with or
without good cause or notice.
12. Address for
Notices. Any notice to be given to the Company under the terms
of this Restricted Stock Unit Agreement will be addressed to the Company at 3939
North First Street, San Jose, California 95134, Attn: Treasury, or at
such other address as the Company may hereafter designate in writing or
electronically.
13. Taxes and
Withholding. To the extent
that the Company is required to withhold any federal, state, local or foreign
tax in connection with any delivery of Shares pursuant to this Restricted Stock
Unit Agreement, and the amounts available to the Company are insufficient, it
shall be a condition to the receipt of such delivery that the Grantee make
arrangements satisfactory to the Company for payment of the balance of such
taxes required to be withheld. Unless otherwise determined by the
Committee, this tax withholding obligation shall be satisfied by the retention
by the Company of Shares otherwise deliverable pursuant to this award; provided, however, that the
Shares retained for payment of the tax must satisfy the minimum tax withholding
amount permissible under the method that results in the least amount
withheld.
E-3
14. Plan
Governs. This Restricted Stock Unit Agreement and the Notice
of Grant are subject to all terms and provisions of the Plan. In the
event of a conflict between one or more provisions of this Restricted Stock Unit
Agreement or the Notice of Grant and one or more provisions of the Plan, the
provisions of the Plan will govern.
15. Committee
Authority. The Committee will have the power to
interpret the Plan and this Restricted Stock Unit Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith and to interpret or revoke any such rules (including, but
not limited to, the determination of whether or not any RSUs have
vested). All actions taken and all interpretations and determinations
made by the Committee in good faith will be final and binding upon the Grantee,
the Company and all other interested persons. No member of the
Committee will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this Restricted
Stock Unit Agreement.
16. Data
Privacy. Information about the Grantee and the Grantee’s
participation in the Plan may be collected, recorded, and held, used and
disclosed for any purpose related to the administration of the
Plan. The Grantee understands that such processing of this
information may need to be carried out by the Company and its Subsidiaries and
by third party administrators whether such persons are located within the
Grantee’s country or elsewhere, including the United States of
America. The Grantee consents to the processing of information
relating to the Grantee and the Grantee’s participation in the Plan in any one
or more of the ways referred to above.
17. Amendments. Any
amendment to the Plan shall be deemed to be an amendment to this Restricted
Stock Unit Agreement to the extent that the amendment is applicable hereto;
provided, however, that no
amendment shall adversely affect the rights of the Grantee under this Restricted
Stock Unit Agreement without the Grantee’s consent.
18. Severability. If
any provision of this Restricted Stock Unit Agreement or the application of any
provision hereof to any person or circumstances is held invalid or
unenforceable, the remainder of this Restricted Stock Unit Agreement and the
application of such provision in any other person or circumstances shall not be
affected, and the provisions so held to be invalid or unenforceable shall be
reformed to the extent (and only to the extent) necessary to make it enforceable
and valid.
19. Successors and
Assigns. Without limiting Section 7 (Grant is Not
Transferable) hereof, the provisions of this Restricted Stock Unit Agreement
shall inure to the benefit of, and be binding upon, the successors,
administrators, heirs, legal representatives and assigns of the Grantee, and the
successors and assigns of the Company.
20. Governing
Law. This Restricted Stock Unit Agreement shall be governed by
and construed in accordance with the internal substantive laws of the State of
Delaware, without giving effect to any principle of law that would result in the
application of the law of any other jurisdiction.
E-4
EXHIBIT
5.1
|
JONES
DAY
1755
EMBARCADERO ROAD • PALO ALTO,
CALIFORNIA 94303
TELEPHONE:
(650) 739-3939 • FACSIMILE: (650)
739-3900
|
May 8,
2008
|
SunPower
Corporation
3939
North First Street
San
Jose, California 95134
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Re: Registration Statement on
Form S-8 Filed by SunPower Corporation
Ladies
and Gentlemen:
We have
acted as counsel for SunPower Corporation, a Delaware corporation (the “Company”),
in connection with the addition of 1,700,000 shares to the SunPower
Corporation Amended and Restated 2005 Stock Incentive Plan (the “Plan”). In
connection with the opinion expressed herein, we have examined such documents,
records and matters of law as we have deemed relevant or necessary for purposes
of this opinion. Based on the foregoing, and subject to the further
limitations, qualifications and assumptions set forth herein, we are of the
opinion that the additional 1,700,000 shares of the Company’s Class A Common
Stock, par value $0.001 per share (the “Common
Stock”), that may be issued or delivered and sold pursuant to the Plan
and the authorized forms of stock option, restricted stock or other applicable
award agreements thereunder will be, when issued or delivered and sold in
accordance with the Plan and such agreements, validly issued, fully paid
and nonassessable, provided that the consideration for such shares is at least
equal to the stated par value thereof.
The
opinion expressed herein is limited to the General Corporation Law of the State
of Delaware, including the applicable provisions of the Delaware Constitution
and the reported judicial decisions interpreting such law, in each case as
currently in effect, and we express no opinion as to the effect of the laws of
any other jurisdiction. In addition, we have assumed that the
resolutions authorizing the Company to issue or deliver and sell the Common
Stock pursuant to the Plan and the applicable award agreements will be in full
force and effect at all times at which such shares of Common Stock are issued or
delivered or sold by the Company, and the Company will take no action
inconsistent with such resolutions.
In
rendering the opinion above, we have assumed that each award under the Plan will
be approved by the Board of Directors of the Company or an authorized committee
of the Board of Directors.
We hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration
Statement on Form S-8 filed by the Company to effect registration of the Common
Stock to be issued and sold pursuant to the Plan under the Securities Act of
1933 (the “Act”). In
giving such consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
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Very
truly yours,
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/S/
JONES DAY
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EXHIBIT
23.1
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CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
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We hereby
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our report dated March 2, 2008, relating to the financial statements,
financial statement schedule and the effectiveness of internal control over
financial reporting, which appears in SunPower Corporation’s Annual Report on
Form 10-K for the year ended December 30, 2007.
/s/
PricewaterhouseCoopers LLP
San Jose,
California
May 7,
2008
EXHIBIT
24.1
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each of the undersigned officers and directors of
SunPower Corporation, a Delaware corporation (“ Registrant
”), hereby constitutes and appoints Thomas H. Werner, Bruce R. Ledesma, and
Emmanuel T. Hernandez, and each of them, as true and lawful attorney or
attorneys-in-fact for the undersigned, with full power of substitution and
revocation, for him or her and in his or her name, place and stead, to sign on
his or her behalf as an officer or director of the Registrant a Registration
Statement on Form S-8 pursuant to the Securities Act of 1933 concerning
certain shares of Common Stock of the Registrant to be offered in connection
with the Second Amended and Restated SunPower Corporation 2005 Stock Incentive
Plan, and to sign any and all amendments or post-effective amendments to such
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission or any state regulatory authority, granting unto said attorney or
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or could do in
person, hereby ratifying and confirming all that said attorney or
attorneys-in-fact or any of them or their substitute or substitutes may lawfully
do or cause to be done by virtue hereof. This Power of Attorney may be executed
in multiple counterparts, each of which shall be deemed an original with respect
to the person executing it.
IN
WITNESS WHEREOF, the undersigned have hereunto set their hands as of
the 8th day of May 2008.
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/s/
Thomas H. Werner
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/s/
W. Steve Albrecht
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Thomas
H. Werner
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W.
Steve Albrecht
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Chief
Executive Officer and Director
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Director
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| (Principal Executive Officer) | ||||
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/s/
Emmanuel T. Hernandez
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/s/
Betsy S. Atkins
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Emmanuel T.
Hernandez
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Betsy
S. Atkins
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Chief
Financial Officer
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Director
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| (Principal Financial Officer and Principal Accounting Officer) | ||||
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/s/
T. J. Rodgers
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/s/
Pat Wood III
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T.
J. Rodgers
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Pat
Wood III
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Director
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Director
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