SEC Info - Sunpower Corp - ‘10-K’ for 1/1/12

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Sunpower Corp – ‘10-K’ for 1/1/12 – ‘EX-10.91’

On: Wednesday, 2/29/12, at 4:34pm ET · For: 1/1/12 · Accession #: 867773-12-8 · File #: 1-34166

  As Of               Filer                 Filing    For·On·As Docs:Size

 2/29/12  Sunpower Corp                     10-K        1/01/12  108:26M

Annual Report — Form 10-K — Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                       HTML   1.89M 
 2: EX-4.1      Specimen Common Stock Certificate                   HTML     26K 
 3: EX-10.55    Form of Indemnification Agreement for Directors     HTML     98K 
                and Officers                                                     
 4: EX-10.58    Amended and Restated Employment Agreement           HTML    111K 
 5: EX-10.65    First Amendment to Letter of Credit Facility        HTML     64K 
                Agreement                                                        
 6: EX-10.67    First Amendment to Revolving Credit Agreement       HTML     56K 
 7: EX-10.80    Amendment No. 5 to Ingot Supply Agreement           HTML     43K 
 8: EX-10.82    2011 Resolution Agreement to Wafering Supply and    HTML     39K 
                Sales Agreement                                                  
 9: EX-10.89    Liquidity Support Agreement                         HTML    183K 
10: EX-10.90    Compensation and Funding Agreement                  HTML    303K 
11: EX-10.91    Amendment No. 3 to Affiliation Agreement            HTML     47K 
12: EX-10.92    Warrant to Purchase Common Stock                    HTML    131K 
13: EX-10.93    Revolving Credit and Convertible Loan Agreement     HTML    270K 
14: EX-10.94    Private Placement Agreement                         HTML    274K 
15: EX-10.95    Form of Warrant to Purchase Common Stock            HTML    131K 
16: EX-10.96    Form of Guarantee From Total S.A. and Bank          HTML     52K 
17: EX-10.97    Form of Convertible Term Loan Note                  HTML     94K 
18: EX-10.98    Revolving Loan Note                                 HTML     37K 
19: EX-10.99    Form of Terms Agreement                             HTML     35K 
20: EX-21.1     List of Subsidiaries                                HTML     32K 
21: EX-23.1     Consent of Independent Registered Public            HTML     28K 
                Accounting Firm                                                  
22: EX-24.1     Power of Attorney                                   HTML     46K 
23: EX-31.1     Certification by Chief Executive Officer Pursuant   HTML     36K 
                to Rule 13A-14(A)/15D-14(A)                                      
24: EX-31.2     Certification by Chief Financial Officer Pursuant   HTML     36K 
                to Rule 13A-14(A)/15D-14(A)                                      
25: EX-32.1     Certification Furnished Pursuant to 18 U.S.C.       HTML     32K 
                Section 1350 as Adopted Pursuant to Section 906 of               
                the Sarbanes-Oxley Act of 2002                                   
78: R1          Document and Entity Information                     HTML     55K 
65: R2          Consolidated Balance Sheets                         HTML    181K 
76: R3          Consolidated Balance Sheets (Parentheticals)        HTML     56K 
80: R4          Consolidated Statements of Operations               HTML    179K 
100: R5          Consolidated Statements of Stockholders' Equity     HTML    172K  
                and Comprehensive Income                                         
67: R6          Consolidated Statements of Cash Flows               HTML    304K 
75: R7          The Company and Summary of Significant Accounting   HTML    114K 
                Policies                                                         
60: R8          Transactions with Total and Total S.A.              HTML     69K 
50: R9          Business Combinations                               HTML     90K 
101: R10         Sale of Discontinued Operations                     HTML     44K  
82: R11         Goodwill and Other Intangible Assets                HTML    103K 
81: R12         Balance Sheet Components                            HTML    210K 
87: R13         Investments                                         HTML     72K 
88: R14         Restructuring                                       HTML     75K 
85: R15         Commitments and Contingencies                       HTML    138K 
89: R16         Joint Ventures                                      HTML    106K 
77: R17         Debt and Credit Sources                             HTML    272K 
79: R18         Foreign Currency Derivatives                        HTML    132K 
84: R19         Income Taxes                                        HTML    174K 
108: R20         Preferred Stock and Common Stock                    HTML     64K  
95: R21         Net Income (Loss) Per Share of Common Stock         HTML    135K 
71: R22         Stock-Based Compensation                            HTML    172K 
83: R23         Segment and Geographical Information                HTML    148K 
73: R24         Subsequent Events                                   HTML     47K 
42: R25         The Company and Summary of Significant Accounting   HTML    221K 
                Policies (Policies)                                              
97: R26         The Company and Summary of Significant Accounting   HTML     56K 
                Policies (Tables)                                                
104: R27         Business Combinations (Tables)                      HTML     72K  
55: R28         Sale of Discontinued Operations (Tables)            HTML     41K 
54: R29         Goodwill and Other Intangible Assets (Tables)       HTML     98K 
58: R30         Balance Sheet Components (Tables)                   HTML    235K 
59: R31         Investments (Tables)                                HTML     62K 
61: R32         Restructuring (Tables)                              HTML     65K 
38: R33         Commitments and Contingencies (Tables)              HTML     96K 
93: R34         Joint Ventures (Tables)                             HTML     62K 
69: R35         Debt and Credit Sources (Tables)                    HTML    159K 
72: R36         Foreign Currency Derivatives (Tables)               HTML    112K 
45: R37         Income Taxes Income Taxes (Tables)                  HTML    160K 
107: R38         Preferred Stock and Common Stock (Tables)           HTML     52K  
32: R39         Net Income (Loss) Per Share of Common Stock         HTML    125K 
                (Tables)                                                         
62: R40         Stock-Based Compensation (Tables)                   HTML    167K 
99: R41         Segment and Geographical Information (Tables)       HTML    150K 
44: R42         The Company and Summary of Significant Accounting   HTML     73K 
                Policies (Details)                                               
53: R43         Transactions with Total (Details)                   HTML     82K 
57: R44         Business Combinations (Details)                     HTML    137K 
66: R45         Sale of Discontinued Operations (Details)           HTML     57K 
37: R46         Goodwill and Other Intangible Assets - Goodwill     HTML     52K 
                (Details)                                                        
49: R47         Goodwill and Other Intangible Assets - Intangible   HTML     74K 
                Assets (Details)                                                 
34: R48         Balance Sheet Components (Details)                  HTML    254K 
98: R49         Investments (Details)                               HTML     52K 
43: R50         Investments - Equity Method (Details)               HTML     30K 
94: R51         Investments - Cost Method (Details)                 HTML     33K 
46: R52         Restructuring (Details)                             HTML     75K 
63: R53         Commitments and Contingencies (Details)             HTML    136K 
33: R54         Commitments and Contingencies - Advances to         HTML     44K 
                Suppliers (Details)                                              
36: R55         Commitments and Contingencies - Advances From       HTML     70K 
                Customers (Details)                                              
56: R56         Commitments and Contingencies - Future Financing    HTML     34K 
                Commitments (Details)                                            
40: R57         Joint Ventures (Details)                            HTML    181K 
102: R58         Debt and Credit Sources (Details)                   HTML    429K  
68: R59         Debt and Credit Sources - Convertible Debenture     HTML    192K 
                and Related Transactions (Details)                               
86: R60         Comprehensive Income (Details)                      HTML     75K 
48: R61         Foreign Currency Derivatives (Details)              HTML     51K 
51: R62         Foreign Currency Derivatives - Net Gain (Loss)      HTML     64K 
                (Details)                                                        
92: R63         Income Taxes (Details)                              HTML    196K 
90: R64         Income Taxes - Operating Loss Carryforwards         HTML     39K 
                (Details)                                                        
70: R65         Income Taxes - Tax Holidays (Details)               HTML     39K 
91: R66         Income Taxes - Valuation Allowance (Details)        HTML     32K 
47: R67         Preferred Stock and Common Stock (Details)          HTML     67K 
74: R68         Net Income (Loss) Per Share of Common Stock         HTML    107K 
                (Details)                                                        
103: R69         Net Income (Loss) Per Share of Common Stock -       HTML     43K  
                Anti-Dilutive Securities (Details)                               
35: R70         Stock-Based Compensation (Details)                  HTML    185K 
41: R71         Stock-Based Compensation - Allocation Stock-Based   HTML     42K 
                Compensation Expense (Details)                                   
64: R72         Segment and Geographical Information (Details)      HTML     82K 
39: R73         Segment and Geographical Information - Major        HTML     32K 
                Customer (Details)                                               
106: R74         Subsequent Events (Details)                         HTML     62K  
105: XML         IDEA XML File -- Filing Summary                      XML    142K  
52: EXCEL       IDEA Workbook of Financial Reports (.xls)            XLS   3.80M 
26: EX-101.INS  XBRL Instance -- spwra-20120101                      XML   5.30M 
28: EX-101.CAL  XBRL Calculations -- spwra-20120101_cal              XML    417K 
29: EX-101.DEF  XBRL Definitions -- spwra-20120101_def               XML   1.48M 
30: EX-101.LAB  XBRL Labels -- spwra-20120101_lab                    XML   3.45M 
31: EX-101.PRE  XBRL Presentations -- spwra-20120101_pre             XML   1.85M 
27: EX-101.SCH  XBRL Schema -- spwra-20120101                        XSD    317K 
96: ZIP         XBRL Zipped Folder -- 0000867773-12-000008-xbrl      Zip    537K

‘EX-10.91’ — Amendment No. 3 to Affiliation Agreement

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

<! C: C:

ex10_91x01012012

Exhibit 10.91

AMENDMENT NO. 3 TO AFFILIATION AGREEMENT

This AMENDMENT NO. 3 (this “Amendment”) to the Affiliation Agreement, dated as of April 28, 2011 (the “Affiliation Agreement”), by and between Total Gas & Power USA, SAS, a société par actions simplifiée organized under the laws of the Republic of France (“Parent”), and SunPower Corporation, a Delaware corporation (the “Company”), is made and entered into as of February 28, 2012 by and between Parent and the Company. Capitalized terms used in this Amendment and not otherwise defined shall have the meaning given to them in the Affiliation Agreement.

W I T N E S S E T H:

WHEREAS, Parent and the Company desire to amend certain terms of the Affiliation Agreement in connection with the entry into of the Compensation and Funding Agreement and the Liquidity Support Agreement (each as defined below) as set forth below.

NOW, THEREFORE, in consideration of the foregoing premises and the matters set forth herein, as well as other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound, Parent and the Company hereby agree as follows:

1.Amendments.

(a)Article I of the Affiliation Agreement is amended to include the following definitions:

“Compensation and Funding Agreement” shall mean that certain Compensation and Funding Agreement by and between Parent and the Company dated as of February 28, 2012.

“Liquidity Support Agreement” shall mean that certain Liquidity Support Agreement by and among Parent, the Company and the U.S. Department of Energy dated as of February 28, 2012.

(b)The definition of “Excluded Debt Incurrence” in Article I of the Affiliation Agreement is amended and restated in its entirety as follows: “ “Excluded Debt Incurrence” shall mean Non-Recourse Debt.”

(c)Section 2.2(a)(iii) of the Affiliation Agreement is amended and restated in its entirety as follows:

To the extent that Excess Shares result solely from any increase in the aggregate percentage of Beneficial Ownership of Voting Stock held by the Terra Group that results from: (i) a recapitalization of the Company, a repurchase of securities by the Company or

other actions taken by the Company or any Company Controlled Corporation (which recapitalization, repurchase or other actions shall have received Disinterested Board Approval, if a majority of the members of the Company Board are then Terra Directors) that have the effect of reducing the number of shares of Voting Stock then outstanding; (ii) the issuance of Voting Stock to Terra in connection with the acquisition by the Company of Tenesol; (iii) the issuance of Voting Stock to Terra, including from the conversion into Voting Stock of Convertible Securities, in connection with the Compensation and Funding Agreement or the Liquidity Support Agreement; or (iv) the rights specified in any “poison pill” share purchase rights plan of the Company having separated from the Company Common Stock and a member of the Terra Group having exercised such rights (such Excess Shares resulting from the circumstances described in this Section 2.2(a)(iii), the “Exempt Excess Shares”).

(d)Section 3.3 of the Affiliation Agreement is amended and restated in its entirety as follows:

Board Committee Composition. Subject to the listing requirements of the principal securities exchange on which the Company's Common Stock is listed, until the first time that Terra, together with the Terra Controlled Corporations, owns (or is deemed pursuant to Section 3.1(f) to own) less than thirty percent (30%) of the Total Current Voting Power of the Company then in effect:

(a) the Audit Committee of the Company Board shall solely comprise three (3) Disinterested Directors;

(b) the Compensation Committee of the Company Board shall solely comprise two (2) Disinterested Directors and two (2) Terra Directors;

(c) the Nominating and Governance Committee of the Company Board shall solely comprise two (2) Disinterested Directors and two (2) Terra Directors; and

(d) any other standing or ad hoc committee of the Company Board shall solely comprise two (2) Disinterested Directors and two (2) Terra Directors;

provided that, a Terra Director shall not be included in the membership of any such committee the sole purpose of which is to consider any transaction for which there exists an actual conflict of interest between any member of the Terra Group, on the one hand, and the Company or its Affiliates, on the other hand, in the reasonable judgment of the Disinterested Directors.

(e)Clause (y) of the definition of “Terra Stockholder Approval Period” in Section 4.3 of the Affiliation Agreement is amended and restated in its entirety as follows: “(y) forty percent (40%) or less of the Total Current Voting Power of the Company then in effect (A) when at least $100 Million of Guarantees are outstanding or (B) for so long as the Liquidity Support Agreement remains in effect and, thereafter, for so long as (1) any loan by Parent or any of its Affiliates to the Company remains outstanding, (2) any guarantee by Parent or any of its Affiliates of any of the

Company's indebtedness remains outstanding, or (3) any other continuing obligation of Parent or any of its Affiliates to or for the benefit of the Company (other than the portion of any transaction pursuant to which Parent or any of its Affiliates purchases or receives equity of the Company) remains outstanding, in each case resulting from a Liquidity Injection (as defined in the Liquidity Support Agreement).”.

(f)Section 4.3 of the Affiliation Agreement is amended to add a new clause (i) to read as follows: “any repurchase of Company Common Stock, other than any such repurchase in connection with a tax withholding obligation arising from the grant or exercise of an award under a Company Equity Plan.”

(g)Article V of the Affiliation Agreement is amended to add a new Section 5.6 to read as follows:

“CVSR Deputy Project Manager. At all times during the Terra Stockholder Approval Period prior to the Final Completion Date (as defined in the Liquidity Support Agreement), Terra shall have the right to appoint a CVSR Deputy Project Manager, who shall have responsibilities to be agreed by Total and the Company.”

2.Agreement. All references to the “Agreement” set forth in the Affiliation Agreement shall be deemed to be references to the Affiliation Agreement as amended through the date of this Amendment.

3.Headings. The headings set forth in this Amendment are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Amendment or any term or provision hereof.

4.Confirmation of the Affiliation Agreement. Other than as expressly modified pursuant to this Amendment, all provisions of the Affiliation Agreement, as amended prior to the date of this Amendment, remain unmodified and in full force and effect. The applicable provisions of Section 6.1 through and including Section 6.14 of the Affiliation Agreement shall apply to this Amendment mutatis mutandis.

[Execution page follows.]

IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 3 to be executed by their respective duly authorized officers to be effective as of the date first above written.



	TOTAL GAS & POWER USA, SAS


	By:	/s/ *Arnaud Chaperon*
		Name: Arnaud Chaperon
		Title: President



	SUNPOWER CORPORATION


	By:	/s/ *Thomas H. Werner*
		Name: Thomas H. Werner
		Title: Chief Executive Officer

[Signature Page to Amendment No. 3 to Affiliation Agreement]

Dates Referenced Herein and Documents Incorporated by Reference

This ‘10-K’ Filing	Date	Other Filings

Filed on:	2/29/12	3
	2/28/12	4
For Period end:	1/1/12	10-K/A, ARS
	4/28/11	8-K, SC TO-C, SC14D9C
		List all Filings

6 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

12/18/23  SunPower Corp.                    10-K/A      1/01/23  151:26M
 3/10/23  SunPower Corp.                    10-K        1/01/23  144:21M
 2/25/22  SunPower Corp.                    10-K        1/02/22  163:22M
 2/22/21  SunPower Corp.                    10-K        1/03/21  154:23M
 7/25/12  SEC                               UPLOAD¶    10/10/17    1:36K  SunPower Corp.
 6/21/12  SEC                               UPLOAD¶    10/10/17    1:117K SunPower Corp.

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Filing Submission 0000867773-12-000008 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)