UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM
10-Q/A
Amendment
No. 1
_____________________
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x
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QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the quarterly period ended March 30, 2008
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OR
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o
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
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For
the transition period from ______________ to ______________
Commission
file number 000-51593
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
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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3939
North First Street, San Jose, California 95134
(Address
of Principal Executive Offices and Zip Code)
(408)
240-5500
(Registrant’s
Telephone Number, Including Area Code)
_____________________
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
Accelerated Filer x
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Accelerated
Filer ¨
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Non-accelerated
filer ¨
(Do
not check if a smaller reporting company)
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Smaller
reporting company ¨
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Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes ¨ No x
The total
number of outstanding shares of the registrant’s class A common stock as of May
2, 2008 was 40,133,840.
The total
number of outstanding shares of the registrant’s class B common stock as of May
2, 2008 was 44,533,287.
EXPLANATORY
NOTE
This
Amendment No. 1 on Form 10-Q/A for the quarter ended March 30, 2008, is being
filed for the purpose of properly filing and identifying Exhibits 10.11, 10.12
and 10.13 filed with the Quarterly Report. This amendment to the
Quarterly Report does not alter or affect any other part or any other
information originally set forth in the Quarterly Report.
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Item 6.
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Exhibits
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Exhibit
Number
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Description
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3.1
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Form
of Restated Certificate of Incorporation of SunPower Corporation
(incorporated by reference to Exhibit 3.(i)2 to the Registrant’s
Registration Statement on Form S-1/A filed with the Securities and
Exchange Commission on November 15, 2005).
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3.2
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Form
of By-laws of SunPower Corporation (incorporated by reference to Exhibit
3.(ii)2 to the Registrant’s Registration Statement on Form S-1/A filed
with the Securities and Exchange Commission on October 11,
2005).
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10.1#
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SunPower
Corporation Quarterly Key Initiative Bonus Plan.
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10.2#
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First
Amendment to Lease, dated December 12, 2006, by and between SunPower
Corporation and Cypress Semiconductor Corporation.
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10.3#
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Second
Amendment to Lease, dated July 1, 2007, by and between SunPower
Corporation and Cypress Semiconductor Corporation.
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10.4†#
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Amendment
to Polysilicon Suppy Agreement, dated January 8, 2008, by and between
SunPower Philippines Manufacturing, Ltd. and Woongjin Energy Co.,
Ltd.
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10.5†#
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Long-Term
Polysilicon Supply Agreement, dated January 10, 2008, by and between
SunPower Corporation and NorSun AS.
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10.6†#
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Form
of Long-Term Polysilicon Supply Agreement, by and between SunPower
Corporation and a joint venture to be formed by NorSun AS, Swicorp
Joussour Company and Chemical Development Company.
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10.7†#
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Waiver
Agreement, dated January 18, 2008, by and between SunPower
Corporation and Wells Fargo Bank, National Association.
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10.8†*#
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated January 31, 2008, by and between SunPower Energy Systems Spain S.L.
and Solargen Proyetos e Instalaciones, S.L.
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10.9*#
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated dated February 8, 2008, by and between SunPower Energy Systems Spain
S.L. and Solargen Proyectos e Instalaciones, S.L.
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10.10†#
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Poly
Silicon Supply Agreement, dated February 8, 2008, by and between SunPower
Corporation and Jupiter Corporation Ltd.
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10.11
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Third
Amendment to Credit Agreement, dated February 13, 2008, by and beween
SunPower Corporation and Wells Fargo Bank, National
Association.
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10.12*
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated dated March 5, 2008, by and between SunPower Energy Systems Spain
S.L. and Solargen Proyectos e Instalaciones, S.L.
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10.13†
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Amendment
to Supply Agreement, dated March 5, 2008, by and between SunPower
Corporation and Solon AG fur Solartechnik.
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31.1
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Certification
by Chief Executive Officer Pursuant to Rule
13a-14(a)/15d-14(a).
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31.2
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Certification
by Chief Financial Officer Pursuant to Rule
13a-14(a)/15d-14(a).
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32.1
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Certification
Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
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A cross
(†) indicates that confidential treatment has been requested for portions of the
marked exhibits.
An
asterisk (*) indicates that the submission is an English translation of the
original document.
A pound
sign (#) indicates previously filed.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereto duly authorized.
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SUNPOWER CORPORATION
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Dated:
May 9, 2008
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By:
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/s/ EMMANUEL T. HERNANDEZ
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Emmanuel
T. Hernandez
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Chief
Financial Officer
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Index
to Exhibits
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Exhibit
Number
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Description
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3.1
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Form
of Restated Certificate of Incorporation of SunPower Corporation
(incorporated by reference to Exhibit 3.(i)2 to the Registrant’s
Registration Statement on Form S-1/A filed with the Securities and
Exchange Commission on November 15, 2005).
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3.2
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Form
of By-laws of SunPower Corporation (incorporated by reference to Exhibit
3.(ii)2 to the Registrant’s Registration Statement on Form S-1/A filed
with the Securities and Exchange Commission on October 11,
2005).
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10.1#
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SunPower
Corporation Quarterly Key Initiative Bonus Plan.
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10.2#
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First
Amendment to Lease, dated December 12, 2006, by and between SunPower
Corporation and Cypress Semiconductor Corporation.
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10.3#
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Second
Amendment to Lease, dated July 1, 2007, by and between SunPower
Corporation and Cypress Semiconductor Corporation.
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10.4†#
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Amendment
to Polysilicon Suppy Agreement, dated January 8, 2008, by and between
SunPower Philippines Manufacturing, Ltd. and Woongjin Energy Co.,
Ltd.
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10.5†#
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Long-Term
Polysilicon Supply Agreement, dated January 10, 2008, by and between
SunPower Corporation and NorSun AS.
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10.6†#
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Form
of Long-Term Polysilicon Supply Agreement, by and between SunPower
Corporation and a joint venture to be formed by NorSun AS, Swicorp
Joussour Company and Chemical Development Company.
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10.7†#
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Waiver
Agreement, dated January 18, 2008, by and between SunPower
Corporation and Wells Fargo Bank, National Association.
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10.8†*#
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated January 31, 2008, by and between SunPower Energy Systems Spain S.L.
and Solargen Proyetos e Instalaciones, S.L.
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10.9*#
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated dated February 8, 2008, by and between SunPower Energy Systems Spain
S.L. and Solargen Proyectos e Instalaciones, S.L.
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10.10†#
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Poly
Silicon Supply Agreement, dated February 8, 2008, by and between SunPower
Corporation and Jupiter Corporation Ltd.
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10.11
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Third
Amendment to Credit Agreement, dated February 13, 2008, by and beween
SunPower Corporation and Wells Fargo Bank, National
Association.
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10.12*
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Amendment
to Turnkey Construction Contract for the Construction of a Solar Park,
dated dated March 5, 2008, by and between SunPower Energy Systems Spain
S.L. and Solargen Proyectos e Instalaciones, S.L.
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10.13†
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Amendment
to Supply Agreement, dated March 5, 2008, by and between SunPower
Corporation and Solon AG fur Solartechnik.
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31.1
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Certification
by Chief Executive Officer Pursuant to Rule
13a-14(a)/15d-14(a).
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31.2
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Certification
by Chief Financial Officer Pursuant to Rule
13a-14(a)/15d-14(a).
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32.1
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Certification
Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
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A cross
(†) indicates that confidential treatment has been requested for portions of the
marked exhibits.
An
asterisk (*) indicates that the submission is an English translation of the
original document.
A pound
sign (#) indicates previously filed.
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT
AGREEMENT (this "Amendment") is entered into as of February 13, 2008, by and
between SUNPOWER CORPORATION, a Delaware corporation ("Borrower"), and WELLS
FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted
to Bank pursuant to the terms and conditions of that certain Credit Agreement
between Borrower and Bank dated as of July 13, 2007, as amended from time to
time ("Credit Agreement").
WHEREAS, Bank and Borrower have agreed
to certain changes in the terms and conditions set forth in the Credit Agreement
and have agreed to amend the Credit Agreement to reflect said
changes.
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that the Credit Agreement shall be amended as
follows:
1. The
maximum principal amount available under the Letter of Credit Subfeature of the
Line of Credit is hereby increased from $40,000,000.00 to
$50,000,000.00. Section 1.1(b) (entitled “Letter of Credit
Subfeature”) is hereby deemed amended accordingly.
2. Borrower
agrees that the terms of the Waiver Agreement dated as of January 18, 2008
remain in full force and effect. Without limiting the generality of
the foregoing, it is understood and agreed that all of Borrower’s Secured
Obligations (as defined in said Waiver Agreement) are and shall remain secured
pursuant to the terms of the Security Agreement (Deposit Account) dated as of
July 13, 2007, as amended by the terms of said Waiver
Agreement. Borrower shall, as a condition to each advance under the
Line of Credit and the issuance of each Letter of Credit or Subfeature Letter of
Credit, cause the amount maintained in the deposit account described in the
Security Agreement to be equal to or greater than 100% of the aggregate amount
of such Secured Obligations (after giving effect to the proposed advance, Letter
of Credit or Subfeature Letter of Credit).
3. Except
as specifically provided herein, all terms and conditions of the Credit
Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Credit Agreement shall have
the same meaning when used in this Amendment. This Amendment and the
Credit Agreement shall be read together, as one document.
4. Borrower
hereby remakes all representations and warranties contained in the Credit
Agreement and reaffirms all covenants set forth therein. Borrower
further certifies that as of the date of this Amendment there exists no Event of
Default as defined in the Credit Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.
1
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed as of the day and year first written
above.
&#
160;
| SUNPOWER CORPORATION | WELLS FARGO BANK, | |||
| NATIONAL ASSOCIATION | ||||
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By:
/s/ Emmanuel T. Hernandez
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/s/
Matthew A. Servatius
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Emmanuel
T. Hernandez
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Matthew
A. Servatius
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Chief
Financial Officer
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Vice
President
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2
SOLARGEN
PROYECTOS E INSTALACIONES, S.L.
Núñez de
Balboa 120
Madrid
March 5,
2008
Dear
Sirs:
Construction
Contract for the Solar Park located in Casas de Don Pedro
We hereby
refer to the turnkey contract entered into between SunPower Energy Systems
Spain, S.L. and Solargen Proyectos e Instalaciones, S.L. on December 28, 2007,
as amended by two amendment contracts entered into between both parties on
January 31 and February 8, 2008 (jointly referred as the “Construction Contract”). Terms
in capital letters not expressly defined in this letter should have the meaning
they have in the Construction Contract.
By virtue
of this letter we confirm you that we have accepted to extend the term agreed by
the Parties for the fulfillment of Conditions Precedent of Phase 2 until March
30, 2008. Based on the above, references made in Clause 3(2) to March 3, 2008
should be deemed as references to March 30, 2008.
We kindly
request you to send us a copy of this letter signed by an attorney of Solargen
Proyectos e Instalaciones, S.L. in order to document your acceptance of the
abovementioned amendment.
Sincerily,
SunPower
Energy Systems Spain, S.L.
Signed
Marco Antonio Northland
Received and
agreed:
Solargen
Proyectos e Instalaciones, S.L.
Signed D.
Rafael Sánchez-Castillo Lodares
March 5,
2008
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CONFIDENTIAL
TREATMENT REQUESTED
--
CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION
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Between
SunPower
Corporation
3939
North First Street
San Jose,
CA 95134
USA
Hereinafter
called “SunPower”
And
Solon AG
für Solartechnik
Ederstrasse
16
12059
Berlin
Germany
Hereinafter
called “Solon”
(SunPower
and Solon are hereinafter collectively referred to as the “Parties” and
individually as a “Party”).
Effective
as of the last signature to this Amendment Agreement (the “Effective Date”), the
Parties agree to amend the existing terms of their relationship as set forth in
the Supply Agreement dated and signed by the Parties on April 14, 2005 (“Supply
Agreement”), as follows. Capitalized terms used and not otherwise
defined below have the meanings set forth in the Supply Agreement.
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1.
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The
Parties acknowledge that SunPower fell short in delivery of Product to
Solon in 2007 due to silicon shortage and production
constraints. This resulted in a shortfall of SunPower’s
principal repayment to Solon on the balance of Advances (the
“Shortfall”). The parties have agreed to settle any and all
claims with respect to amounts owed by SunPower as a result of this
shortfall through SunPower’s transfer of the following amounts to Solon by
March 17th.
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·
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Advance
Principal
Repayment €
***
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TOTAL €
***
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Subject
to its receipt of the above amounts, Solon hereby releases SunPower from
any and all claims in may otherwise have under the Supply Agreement as a
result of the Shortfall. Missing product as a result of the
short fall will be delivered additionally in accordance with chapter 3.3
of the Supply Agreement.
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Berlin, San
Jose,
/s/
HOWARD WENGER
Solon
AG SunPower
Corporation
Date: 5th
March
2008 5th
March 2008
*** CONFIDENTIAL
MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
EXHIBIT
31.1
CERTIFICATIONS
I, Thomas
H. Werner, certify that:
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1.
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I
have reviewed this Quarterly Report on Form 10-Q of SunPower
Corporation;
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2.
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Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
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3.
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Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
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4.
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The
registrant’s other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
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(a) Designed
such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
(b) Designed
such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c) Evaluated
the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
(d) Disclosed
in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
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5.
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The
registrant’s other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
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(a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
(b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
Date: May
9, 2008
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/S/ THOMAS H. WERNER
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Thomas
H. Werner
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Chief
Executive Officer
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(Principal
Executive Officer)
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EXHIBIT
31.2
CERTIFICATIONS
I,
Emmanuel T. Hernandez, certify that:
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1.
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I
have reviewed this Quarterly Report on Form 10-Q of SunPower
Corporation;
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2.
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Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
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3.
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Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
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4.
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The
registrant’s other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
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(a) Designed
such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to us by others within those entities, particularly during the
period in which this report is being prepared;
(b) Designed
such internal control over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles;
(c) Evaluated
the effectiveness of the registrant’s disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the
disclosure controls and procedures, as of the end of the period covered by this
report based on such evaluation; and
(d) Disclosed
in this report any change in the registrant’s internal control over financial
reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
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5.
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The
registrant’s other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting,
to the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
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(a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
(b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
Date: May
9, 2008
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/S/ EMMANUEL T. HERNANDEZ
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Emmanuel
T. Hernandez
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Chief
Financial Officer
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(Principal
Financial and Accounting Officer)
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EXHIBIT
32.1
CERTIFICATION
OF CHIEF EXECUTIVE OFFICER AND
CHIEF
FINANCIAL OFFICER PURSUANT TO
18
U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the quarterly report of SunPower Corporation (the “Company”) on
Form 10-Q for the period ended March 30, 2008 as filed with the Securities
and Exchange Commission on the date hereof (the “Report”), each of Thomas H.
Werner, Chief Executive Officer, and Emmanuel T. Hernandez, Chief Financial
Officer, of the Company, certifies, pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to
the best of his knowledge and belief:
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d)
of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material
respects, the financial condition and result of operations of the
Company.
Dated: May 9, 2008
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/S/ THOMAS H. WERNER
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Thomas
H. Werner
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Chief
Executive Officer
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(Principal
Executive Officer)
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/S/ EMMANUEL T. HERNANDEZ
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Emmanuel
T. Hernandez
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Chief
Financial Officer
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(Principal
Financial and Accounting Officer)
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The
foregoing certification is being furnished solely pursuant to 18 U.S.C.
Section 1350 and is not being filed as part of the Report or as a separate
disclosure statement.