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FORM 10-K
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T
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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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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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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Title of each class
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Name of each exchange on which registered
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Common Stock $0.001 par value
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Nasdaq Global Select Market
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Large accelerated filer
o
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Accelerated filer
x
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Non-accelerated filer
o
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Smaller reporting company
o
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(Do not check if a smaller reporting company)
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TABLE OF CONTENTS
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Page
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PART 1.
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PART II
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PART III
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PART IV
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–
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Go-to-market platform that is broad and deep with our more than eight years in rooftop and ground mount channels, including turn-key systems:
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•
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High performance delivered by enhancing energy delivery and financial return through systems technology design;
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•
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Cutting edge systems designed to meet customer needs and reduce cost, including non-penetrating, fast roof installation technologies; and
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•
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Expanded reach has been enhanced by Total S.A.'s long-established presence in many countries where significant solar goals are being established;
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–
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Technology advantage which includes being the only solar company manufacturing back-contact, back-junction technology. Our modules produce more electricity, last longer and degrade much less:
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•
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Superior performance, including the ability to generate up to 50% more power per unit area than conventional solar cells;
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•
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Superior aesthetics, with our uniformly black surface design that eliminates highly visible reflective grid lines and metal interconnect ribbons;
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•
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Superior reliability, as confirmed by multiple independent reports and internal reliability data;
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•
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Superior energy production per rated watt of power as confirmed by multiple independent reports;
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•
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More KW per pound can be transported using less packaging, resulting in lower distribution costs; and
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•
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More efficient use of silicon, a key raw material used in the manufacture of solar cells;
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–
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Costs that are decreasing faster and more steadily with an aggressive but we believe achievable cost reduction plan and value that benefits all customers:
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•
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We offer a significantly lower area-related cost structure for our customers because our solar panels require a substantially smaller roof or land area than conventional solar technology and half or less of the roof or land area of many commercial solar thin film technologies;
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•
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Through our leasing program, customers can get high efficiency solar products for no money down at competitive energy rates; and
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•
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Solar power systems designed to generate electricity over a system life typically exceeding 25 years
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–
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Strong balance sheet backed by Total S.A. that gives us an advantage in today's challenging environment.
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•
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SunPower
®
E18 Series Solar Panel ("E18")
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•
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SunPower
®
E19 Series Solar Panel ("E19")
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•
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SunPower
®
E20 Series Solar Panel ("E20")
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•
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SunPower
®
T-5 Solar Roof Tile System ("T-5")
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•
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SunPower
®
T-10 Commercial Solar Roof Tiles ("T-10")
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•
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SunPower
®
T-0 Tracker ("T-0")
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•
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SunPower® Oasis® Power Plant ("Oasis")
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•
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SunPower® C-7 Tracker ("C-7")
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•
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Fixed Tilt SunPower® Parking Structures
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Year ended
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||||||||
Revenue
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December 30, 2012
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January 1, 2012
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January 2, 2011
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Significant Customers:
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Business Segment
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NRG Solar, Inc.
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Americas
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35
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%
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*
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*
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Customer B
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EMEA
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*
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*
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12
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%
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•
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Residential and Commercial:
Canadian Solar Inc., Hanwha Corporation, JA Solar Holdings Co., Kyocera Corporation, Mitsubishi Corporation, Sanyo Corporation (a subsidiary of Panasonic Corporation), Sharp Corporation, SolarCity Corporation, SolarWorld AG, Sungevity, Inc., SunRun, Inc., Suntech Power Holdings Co. Ltd., Trina Solar Ltd., and Yingli Green Energy Holding Co. Ltd.
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•
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Utility and Power Plant:
Abengoa Solar S.A., Acconia Energia S.A., AES Solar Energy Ltd., Chevron Energy Solutions (a subsidiary of Chevron Corporation), EDF Energy plc, First Solar Inc., NextEra Energy, Inc., NRG Energy, Inc., OPDE Group, Recurrent Energy (a subsidiary of Sharp Corporation), Sempra Energy, Skyline Solar, Inc., Solargen Energy, Inc., Solaria Corporation, SolFocus, Inc., SunEdison (a subsidiary of MEMC Electronic Materials Inc.), and Tenaska, Inc.
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•
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total system price;
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•
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LCOE evaluation;
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•
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power efficiency and performance;
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•
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aesthetic appearance of solar panels;
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•
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strength of distribution relationships;
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•
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availability of third-party financing and investments;
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•
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timeliness of new product introductions; and
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•
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warranty protection, quality, and customer service.
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System output performance guarantees;
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System maintenance;
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Penalty payments or customer termination rights if the system we are constructing is not commissioned within specified timeframes or other construction milestones are not achieved;
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Guarantees of certain minimum residual value of the system at specified future dates; and
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System put-rights whereby we could be required to buy-back a customer's system at fair value on specified future dates if certain minimum performance thresholds are not met.
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making it more difficult for us to meet our payment and other obligations under the 4.50% and 4.75% debentures and our other outstanding debt;
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resulting in an event of default if we fail to comply with the financial and other restrictive covenants contained in our debt agreements (with certain covenants becoming more restrictive over time), which event of default could result in all of our debt becoming immediately due and payable if not cured pursuant to the Liquidity Support Facility;
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reducing the availability of our cash flow to fund working capital, capital expenditures, project development, acquisitions and other general corporate purposes, and limiting our ability to obtain additional financing for these purposes;
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subjecting us to the risk of increased sensitivity to interest rate increases on our indebtedness with variable interest rates;
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subjecting us to the risk of currency fluctuations and government-fixed foreign exchange rates and the effects of currency hedging activity or inability to hedge currency fluctuation;
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limiting our flexibility in planning for, or reacting to, and increasing our vulnerability to, changes in our business, the industry in which we operate and the general economy; and
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placing us at a competitive disadvantage compared to our competitors that have less debt or are less leveraged.
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incur additional debt, assume obligations in connection with letters of credit, or issue guarantees;
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create liens;
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make certain investments or acquisitions;
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enter into transactions with our affiliates;
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sell certain assets;
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redeem capital stock or make other restricted payments;
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declare or pay dividends or make other distributions to stockholders; and
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merge or consolidate with any person.
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multiple, conflicting and changing laws and regulations, export and import restrictions, employment laws, environmental protection, regulatory requirements and other government approvals, permits and licenses;
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difficulties and costs in staffing and managing foreign operations as well as cultural differences;
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potentially adverse tax consequences associated with our permanent establishment of operations in more countries;
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relatively uncertain legal systems, including potentially limited protection for intellectual property rights, and laws, changes in the governmental incentives we rely on, regulations and policies which impose additional restrictions on the ability of foreign companies to conduct business in certain countries or otherwise place them at a competitive disadvantage in relation to domestic companies;
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repatriation of non-U.S. earnings taxed at rates lower than the U.S. statutory effective tax rate;
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inadequate local infrastructure and developing telecommunications infrastructures;
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financial risks, such as longer sales and payment cycles and greater difficulty collecting accounts receivable;
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currency fluctuations and government-fixed foreign exchange rates and the effects of currency hedging activity or inability to hedge currency fluctuations;
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political and economic instability, including wars, acts of terrorism, political unrest, boycotts, curtailments of trade and other business restrictions;
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trade barriers such as export requirements, tariffs, taxes and other restrictions and expenses, which could increase the prices of our products and make us less competitive in some countries; and
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liabilities associated with compliance with laws (for example, the Foreign Corrupt Practices Act and similar laws outside of the United States).
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cost overruns, delays, supply shortages, equipment problems and other operating difficulties;
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custom-built equipment may take longer and cost more to engineer than planned and may never operate as designed;
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incorporating first-time equipment designs and technology improvements, which we expect to lower unit capital and operating costs, but this new technology may not be successful;
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problems managing the joint venture with AUO, whom we do not control and whose business objectives may be different from ours and may be inconsistent with our best interests;
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the joint venture's ability to obtain or maintain third party financing to fund its capital requirements;
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difficulties in maintaining or improving our historical yields and manufacturing efficiencies;
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difficulties in protecting our intellectual property and obtaining rights to intellectual property developed by the joint venture;
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difficulties in hiring key technical, management, and other personnel;
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difficulties in integration, implementing IT infrastructure and an effective control environment; and
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potential inability to obtain, or obtain in a timely manner, financing, or approvals from governmental authorities for operations.
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failures or delays in obtaining desired or necessary land rights, including ownership, leases and/or easements;
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failures or delays in obtaining necessary permits, licenses or other governmental support or approvals, or in overcoming objections from members of the public or adjoining land owners;
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uncertainties relating to land costs for projects;
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unforeseen engineering problems;
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access to available transmission for electricity generated by our solar power plants;
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construction delays and contractor performance shortfalls;
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work stoppages or labor disruptions;
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cost over-runs;
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availability of products and components from suppliers;
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adverse weather conditions;
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environmental, archaeological and geological conditions; and
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availability of construction and permanent financing.
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insufficient experience with technologies and markets in which the acquired business or joint venture is involved, which may be necessary to successfully operate and/or integrate the business or the joint venture;
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problems integrating the acquired operations, personnel, IT infrastructure, technologies or products with the existing business and products;
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diversion of management time and attention from the core business to the acquired business or joint venture;
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potential failure to retain or hire key technical, management, sales and other personnel of the acquired business or joint venture;
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difficulties in retaining or building relationships with suppliers and customers of the acquired business or joint venture, particularly where such customers or suppliers compete with us;
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potential failure of the due diligence processes to identify significant issues with product quality and development or legal and financial liabilities, among other things;
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potential inability to obtain, or obtain in a timely manner, approvals from governmental authorities or work councils, which could delay or prevent acquisitions, delay our ability to achieve synergies, or our successful operation of acquired companies or joint ventures;
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potential necessity to re-apply for permits of acquired projects;
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problems managing joint ventures with our partners, meeting capital requirements for expansion, and reliance upon joint ventures which we do not control; for example, our ability to effectively manage our joint venture with AUO;
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subsequent impairment of the acquired assets, including intangible assets; and
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assumption of liabilities including, but not limited to, lawsuits, tax examinations, warranty issues, and liabilities associated with compliance with laws (for example, the Foreign Corrupt Practices Act).
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expanding our existing manufacturing facilities and developing new manufacturing facilities, which would increase our fixed costs and, if such facilities are underutilized, would negatively impact our results of operations;
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ensuring delivery of adequate polysilicon and ingots;
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enhancing our customer resource management and manufacturing management systems;
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implementing and improving additional and existing administrative, financial and operations systems, procedures and controls, including the need to centralize, update and integrate our global financial internal control;
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hiring additional employees;
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expanding and upgrading our technological capabilities;
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managing multiple relationships with our customers, suppliers and other third parties;
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maintaining adequate liquidity and financial resources; and
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continuing to increase our revenues from operations.
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people may not be deterred from misappropriating our technologies despite the existence of laws or contracts prohibiting it;
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policing unauthorized use of our intellectual property may be difficult, expensive and time-consuming, the remedy obtained may be inadequate to restore protection of our intellectual property, and moreover, we may be unable to determine the extent of any unauthorized use;
|
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the laws of other countries in which we market our solar products, such as some countries in the Asia/Pacific region, may offer little or no protection for our proprietary technologies; and
|
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reports we file in connection with government-sponsored research contracts are generally available to the public and third parties may obtain some aspects of our sensitive confidential information.
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the right of the Board of Directors to elect a director to fill a vacancy created by the expansion of the Board of Directors;
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the prohibition of cumulative voting in the election of directors, which would otherwise allow less than a majority of stockholders to elect director candidates;
|
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the requirement for advance notice for nominations for election to the Board of Directors or for proposing matters that can be acted upon at a stockholders' meeting;
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the ability of the Board of Directors to issue, without stockholder approval, up to 10.0 million shares of preferred stock with terms set by the Board of Directors, which rights could be senior to those of common stock;
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our Board of Directors is divided into three classes of directors, with the classes to be as nearly equal in number as possible;
|
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stockholders may not call special meetings of the stockholders, except by Total under limited circumstances;
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our Board of Directors is able to alter our by-laws without obtaining stockholder approval.
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SPWR
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SPWRA
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SPWRB
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||||||||||||||||||
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High
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Low
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High
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Low
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High
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Low
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||||||||||||
Fiscal Year 2012
|
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||||||||||||
Fourth quarter
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$
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6.00
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|
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$
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3.90
|
|
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*
|
|
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*
|
|
|
*
|
|
|
*
|
|
||||
Third quarter
|
|
$
|
5.35
|
|
|
$
|
3.71
|
|
|
*
|
|
|
*
|
|
|
*
|
|
|
*
|
|
||||
Second quarter
|
|
$
|
6.68
|
|
|
$
|
4.51
|
|
|
*
|
|
|
*
|
|
|
*
|
|
|
*
|
|
||||
First quarter
|
|
$
|
9.54
|
|
|
$
|
6.28
|
|
|
*
|
|
|
*
|
|
|
*
|
|
|
*
|
|
||||
Fiscal Year 2011
|
|
|
|
|
|
|
|
|
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|
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|
||||||||||||
Fourth quarter: November 17, 2011 through January 1, 2012
|
|
$
|
8.60
|
|
|
$
|
4.94
|
|
|
*
|
|
|
*
|
|
|
*
|
|
|
*
|
|
||||
Fourth quarter: October 3, 2011 through November 16, 2011
|
|
*
|
|
|
*
|
|
|
$
|
10.88
|
|
|
$
|
6.61
|
|
|
$
|
10.12
|
|
|
$
|
5.99
|
|
||
Third quarter
|
|
*
|
|
|
*
|
|
|
$
|
23.35
|
|
|
$
|
8.06
|
|
|
$
|
17.72
|
|
|
$
|
7.35
|
|
||
Second quarter
|
|
*
|
|
|
*
|
|
|
$
|
22.60
|
|
|
$
|
14.87
|
|
|
$
|
22.10
|
|
|
$
|
14.65
|
|
||
First quarter
|
|
*
|
|
|
*
|
|
|
$
|
19.88
|
|
|
$
|
12.90
|
|
|
$
|
19.45
|
|
|
$
|
12.47
|
|
Period
|
|
Total Number of Shares Purchased (1)
|
|
Average Price
Paid Per Share
|
|
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
|
|
Maximum Number of Shares That May Yet Be Purchased Under the Publicly Announced Plans or Programs
|
|||||
October 1, 2012 through October 28, 2012
|
|
232
|
|
|
$
|
4.54
|
|
|
—
|
|
|
—
|
|
October 29, 2012 through November 25, 2012
|
|
64,032
|
|
|
$
|
4.06
|
|
|
—
|
|
|
—
|
|
November 26, 2012 through December 30, 2012
|
|
328
|
|
|
$
|
4.69
|
|
|
—
|
|
|
—
|
|
|
|
64,592
|
|
|
$
|
4.06
|
|
|
—
|
|
|
—
|
|
(1)
|
The shares purchased represent shares surrendered to satisfy tax withholding obligations in connection with the vesting of restricted stock issued to employees.
|
Plan Category
|
|
Number of securities to be issued upon exercise of outstanding options, warrants and rights
(in thousands)
|
|
|
|
Weighted-average exercise price of outstanding options, warrants and rights
|
|
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in the first column) (in thousands)
|
|||||
Equity compensation plans approved by security holders
|
|
326
|
|
|
|
|
$
|
28.27
|
|
|
3,566
|
|
|
Equity compensation shares not approved by security holders
|
|
—
|
|
|
|
|
$
|
—
|
|
|
—
|
|
|
|
|
326
|
|
|
(1
|
)
|
|
|
|
|
3,566
|
|
(1)
|
Shares associated with our warrants outstanding in connection with our 4.50% debentures and the Liquidity Support Agreement are excluded from the above table as the exercise price exceeded our closing stock as of
December 30, 2012
. This table additionally excludes options to purchase an aggregate of approximately 68,000 shares of common stock, at a weighted average exercise price of $21.74 per share, that we assumed in connection with the acquisition of PowerLight Corporation, now known as SunPower Corporation, Systems, in January 2007. Under the terms of our three equity incentive plans, we may issue incentive or non-statutory stock options, restricted stock awards, restricted stock units, or stock purchase rights to directors, employees and consultants to purchase common stock. Our Third Amended and Restated SunPower Corporation 2005 Stock Incentive Plan includes an automatic share reserve increase feature effective for 2009 through 2015. This share reserve increase feature will cause an annual and automatic increase in the number of shares of our common stock reserved for issuance under the Stock Incentive Plan in an amount each year equal to the least of: 3% of the outstanding shares of all classes of our common stock measured on the last day of the immediately preceding fiscal year; 6,000,000 shares; and such other number of shares as determined by our Board.
|
|
|
Year Ended
|
||||||||||||||||||
(In thousands, except per share data)
|
|
December 30, 2012
|
|
January 1, 2012 (1)
|
|
January 2, 2011
|
|
January 3, 2010
|
|
December 28, 2008
|
||||||||||
Consolidated Statements of Operations Data
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Revenue
|
|
$
|
2,417,501
|
|
|
$
|
2,374,376
|
|
|
$
|
2,219,230
|
|
|
$
|
1,524,283
|
|
|
$
|
1,437,594
|
|
Cost of revenue
|
|
2,171,103
|
|
|
2,148,158
|
|
|
1,709,337
|
|
|
1,240,563
|
|
|
1,087,973
|
|
|||||
Gross margin
|
|
246,398
|
|
|
226,218
|
|
|
509,893
|
|
|
283,720
|
|
|
349,621
|
|
|||||
Operating income (loss)
|
|
(287,708
|
)
|
|
(534,098
|
)
|
|
138,867
|
|
|
61,834
|
|
|
154,407
|
|
|||||
Income (loss) from continuing operations before income taxes and equity in earnings (loss) of unconsolidated investees
|
|
(329,663
|
)
|
|
(602,532
|
)
|
|
183,413
|
|
|
43,620
|
|
|
(97,904
|
)
|
|||||
Income (loss) from continuing operations
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
166,883
|
|
|
$
|
32,521
|
|
|
$
|
(124,445
|
)
|
Income (loss) from continuing operations per share of common stock:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||
Basic
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.74
|
|
|
$
|
0.36
|
|
|
$
|
(1.55
|
)
|
Diluted
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.64
|
|
|
$
|
0.35
|
|
|
$
|
(1.55
|
)
|
Weighted-average shares:
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Basic
|
|
117,093
|
|
|
97,724
|
|
|
95,660
|
|
|
91,050
|
|
|
80,522
|
|
|||||
Diluted
|
|
117,093
|
|
|
97,724
|
|
|
105,698
|
|
|
92,746
|
|
|
80,522
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3 of Notes to Consolidated Financial Statements).
|
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
(1) (2)
|
|
January 2, 2011
|
|
January 3, 2010
|
|
December 28, 2008
|
||||||||||
Consolidated Balance Sheet Data
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Cash and cash equivalents, restricted cash and cash equivalents, current portion and short-term investments
|
|
$
|
473,055
|
|
|
$
|
777,897
|
|
|
$
|
761,602
|
|
|
$
|
677,919
|
|
|
$
|
232,750
|
|
Working capital
|
|
976,627
|
|
|
1,163,245
|
|
|
1,005,492
|
|
|
747,335
|
|
|
420,067
|
|
|||||
Total assets
|
|
3,340,948
|
|
|
3,519,130
|
|
|
3,379,331
|
|
|
2,696,895
|
|
|
2,084,257
|
|
|||||
Long-term debt
|
|
375,661
|
|
|
364,273
|
|
|
50,000
|
|
|
237,703
|
|
|
54,598
|
|
|||||
Convertible debt, net of current portion
|
|
438,629
|
|
|
423,268
|
|
|
591,923
|
|
|
398,606
|
|
|
357,173
|
|
|||||
Long-term deferred tax liabilities
|
|
—
|
|
|
—
|
|
|
—
|
|
|
6,777
|
|
|
6,493
|
|
|||||
Customer advances, net of current portion
|
|
236,082
|
|
|
181,946
|
|
|
160,485
|
|
|
72,288
|
|
|
91,359
|
|
|||||
Other long-term liabilities
|
|
335,619
|
|
|
166,126
|
|
|
131,132
|
|
|
70,045
|
|
|
44,222
|
|
|||||
Total stockholders' equity
|
|
$
|
993,352
|
|
|
$
|
1,274,725
|
|
|
$
|
1,657,434
|
|
|
$
|
1,376,380
|
|
|
$
|
1,100,198
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3 of Notes to Consolidated Financial Statements).
|
(2)
|
As adjusted to conform to the current period presentation for solar power systems leased and to be leased (see Note 1 of Notes to Consolidated Financial Statements).
|
•
|
Power plant project development and projects, turn-key engineering, procurement, and construction ("EPC") services for power plant construction, and power plant operations and maintenance ("O&M") services;
|
•
|
Components, including large volume sales of solar panels and mounting systems to third parties, sometimes on a multi-year, firm commitment basis;
|
•
|
Solar equipment for the residential and small commercial market, sold through our third-party global dealer network; and
|
•
|
Direct sales and EPC and O&M services for rooftop and ground-mounted solar power systems for new homes, commercial, and public sectors.
|
•
|
Level 1—Valuations based on quoted prices in active markets for identical assets or liabilities that we have the ability to access. Since valuations are based on quoted prices that are readily and regularly available in an active market, valuation of these products does not entail a significant degree of judgment. Financial assets utilizing Level 1 inputs include money market funds.
|
•
|
Level 2—Valuations based on quoted prices in markets that are not active or for which all significant inputs are observable, directly or indirectly. Financial assets utilizing Level 2 inputs include bank notes, debt securities, foreign currency option contracts, forward exchange contracts, interest rate swaps derivatives and convertible debenture derivatives. The selection of a particular technique to value a derivative depends upon the contractual term of, and specific risks inherent with, the instrument as well as the availability of pricing information in the market. We generally use similar techniques to value similar instruments. Valuation techniques utilize a variety of inputs, including contractual terms, market prices, yield curves, credit curves and measures of volatility. For derivatives that trade in liquid markets, such as generic forward, option and swap contracts, inputs can generally be verified and selections do not involve significant management judgment.
|
•
|
Level 3—Valuations based on inputs that are unobservable and significant to the overall fair value measurement. We did not have any assets and liabilities measured at fair value on a recurring basis requiring Level 3 inputs.
|
|
|
Year ended
|
||||||||||||||||
(In thousands)
|
|
December 30, 2012
|
|
% of total revenue
|
|
January 1, 2012
|
|
% of total revenue
|
|
January 2, 2011
|
|
% of total revenue
|
||||||
Americas
|
|
$
|
1,696,348
|
|
|
70%
|
|
$
|
1,266,347
|
|
|
53%
|
|
$
|
632,053
|
|
|
28%
|
EMEA
|
|
489,484
|
|
|
20%
|
|
924,337
|
|
|
39%
|
|
1,526,480
|
|
|
69%
|
|||
APAC
|
|
231,669
|
|
|
10%
|
|
183,692
|
|
|
8%
|
|
60,697
|
|
|
3%
|
|||
Total revenue
|
|
$
|
2,417,501
|
|
|
100%
|
|
$
|
2,374,376
|
|
|
100%
|
|
$
|
2,219,230
|
|
|
100%
|
|
|
Year ended
|
||||||||
Revenue
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||
Significant Customers:
|
|
Business Segment
|
|
|
|
|
|
|
||
NRG Solar, Inc.
|
|
Americas
|
|
35
|
%
|
|
*
|
|
*
|
|
Customer B
|
|
EMEA
|
|
*
|
|
|
*
|
|
12
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Americas
|
|
$
|
1,415,417
|
|
|
$
|
1,131,771
|
|
|
$
|
502,780
|
|
EMEA
|
|
559,993
|
|
|
868,330
|
|
|
1,159,115
|
|
|||
APAC
|
|
195,693
|
|
|
148,057
|
|
|
47,442
|
|
|||
Total cost of revenue
|
|
$
|
2,171,103
|
|
|
$
|
2,148,158
|
|
|
$
|
1,709,337
|
|
Total cost of revenue as a percentage of revenue
|
|
90
|
%
|
|
90
|
%
|
|
77
|
%
|
|||
Total gross margin percentage
|
|
10
|
%
|
|
10
|
%
|
|
23
|
%
|
|
|
Year ended
|
||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
Americas
|
|
17%
|
|
11%
|
|
20%
|
EMEA
|
|
(14)%
|
|
6%
|
|
24%
|
APAC
|
|
16%
|
|
19%
|
|
22%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
R&D Expense
|
|
$
|
63,456
|
|
|
$
|
57,775
|
|
|
$
|
49,090
|
|
As a percentage of revenue
|
|
3
|
%
|
|
2
|
%
|
|
2
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Total SG&A
|
|
$
|
310,246
|
|
|
$
|
331,380
|
|
|
$
|
321,936
|
|
As a percentage of revenue
|
|
13
|
%
|
|
14
|
%
|
|
15
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Goodwill impairment
|
|
$
|
46,734
|
|
|
$
|
309,457
|
|
|
$
|
—
|
|
Other intangible assets impairment
|
|
12,847
|
|
|
40,301
|
|
|
—
|
|
|||
|
|
$
|
59,581
|
|
|
$
|
349,758
|
|
|
$
|
—
|
|
As a percentage of revenue
|
|
2
|
%
|
|
15
|
%
|
|
—
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
October 2012 Plan
|
|
$
|
30,227
|
|
|
$
|
—
|
|
|
$
|
—
|
|
April 2012 Plan
|
|
61,379
|
|
|
—
|
|
|
—
|
|
|||
December 2011 Plan
|
|
7,946
|
|
|
7,477
|
|
|
—
|
|
|||
June 2011 Plan
|
|
1,271
|
|
|
13,926
|
|
|
—
|
|
|||
Restructuring charges
|
|
$
|
100,823
|
|
|
$
|
21,403
|
|
|
$
|
—
|
|
As a percentage of revenue
|
|
4
|
%
|
|
1
|
%
|
|
—
|
%
|
|
|
Year ended
|
|||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
|||||
Interest income
|
|
$
|
1,091
|
|
|
$
|
2,337
|
|
|
1,541
|
|
Interest expense
|
|
(84,120
|
)
|
|
(67,253
|
)
|
|
(55,276
|
)
|
||
Gain on sale of equity interest in unconsolidated investee
|
|
—
|
|
|
5,937
|
|
|
—
|
|
||
Gain on change in equity interest in unconsolidated investee
|
|
—
|
|
|
322
|
|
|
28,078
|
|
||
Gain on share lending arrangement
|
|
50,645
|
|
|
—
|
|
|
24,000
|
|
||
Gain on deconsolidation of consolidated subsidiary
|
|
—
|
|
|
—
|
|
|
36,849
|
|
||
Gain on mark-to-market derivative
|
|
4
|
|
|
343
|
|
|
35,764
|
|
||
Other, net
|
|
(9,575
|
)
|
|
(10,120
|
)
|
|
(26,410
|
)
|
||
Other income (expense), net
|
|
$
|
(41,955
|
)
|
|
$
|
(68,434
|
)
|
|
44,546
|
|
As a percentage of revenue
|
|
(2
|
)%
|
|
(3
|
)%
|
|
2
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Provision for income taxes
|
|
$
|
(21,842
|
)
|
|
$
|
(17,208
|
)
|
|
$
|
(23,375
|
)
|
As a percentage of revenue
|
|
(1
|
)%
|
|
(1
|
)%
|
|
(1
|
)%
|
|
|
Year ended
|
|||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
|||||
Equity in earnings (loss) of unconsolidated investees
|
|
$
|
(515
|
)
|
|
$
|
6,003
|
|
|
6,845
|
|
As a percentage of revenue
|
|
—
|
%
|
|
0.3
|
%
|
|
0.3
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Income from discontinued operations, net of taxes
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
11,841
|
|
As a percentage of revenue
|
|
—
|
%
|
|
—
|
%
|
|
1
|
%
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Net income (loss)
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
178,724
|
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Net cash provided by (used in) operating activities of continuing operations
|
|
$
|
28,903
|
|
|
$
|
(94,304
|
)
|
|
$
|
168,402
|
|
Net cash provided by (used in) investing activities of continuing operations
|
|
(220,067
|
)
|
|
64,040
|
|
|
(461,360
|
)
|
|||
Net cash provided by (used in) financing activities of continuing operations
|
|
(75,708
|
)
|
|
157,108
|
|
|
244,045
|
|
|
|
|
|
Payments Due by Period
|
||||||||||||||||
(In thousands)
|
|
Total
|
|
2013
|
|
2014-2015
|
|
2016-2017
|
|
Beyond 2017
|
||||||||||
Convertible debt, including interest (1)
|
|
$
|
518,943
|
|
|
$
|
22,176
|
|
|
$
|
496,767
|
|
|
$
|
—
|
|
|
$
|
—
|
|
IFC mortgage loan, including interest (2)
|
|
82,718
|
|
|
15,866
|
|
|
33,284
|
|
|
31,064
|
|
|
2,504
|
|
|||||
CEDA loan, including interest (3)
|
|
76,538
|
|
|
2,550
|
|
|
5,100
|
|
|
5,100
|
|
|
63,788
|
|
|||||
Credit Agricole revolving credit facility, including interest (4)
|
|
277,515
|
|
|
2,324
|
|
|
275,191
|
|
|
—
|
|
|
—
|
|
|||||
Future financing commitments (5)
|
|
246,978
|
|
|
150,208
|
|
|
96,770
|
|
|
—
|
|
|
—
|
|
|||||
Operating lease commitments (6)
|
|
177,099
|
|
|
24,737
|
|
|
35,032
|
|
|
29,769
|
|
|
87,561
|
|
|||||
Capital lease commitments (7)
|
|
8,993
|
|
|
2,064
|
|
|
2,642
|
|
|
1,896
|
|
|
2,391
|
|
|||||
Non-cancellable purchase orders (8)
|
|
214,194
|
|
|
214,194
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||
Purchase commitments under agreements (9)
|
|
2,181,970
|
|
|
407,110
|
|
|
731,342
|
|
|
526,423
|
|
|
517,095
|
|
|||||
Total
|
|
$
|
3,784,948
|
|
|
$
|
841,229
|
|
|
$
|
1,676,128
|
|
|
$
|
594,252
|
|
|
$
|
673,339
|
|
(1)
|
Convertible debt, including interest, relates to the aggregate of
$480.1 million
in outstanding principal amount of our senior convertible debentures on
December 30, 2012
. For the purpose of the table above, we assume that all holders of the 4.50% debentures and 4.75% debentures will hold the debentures through the date of maturity in fiscal 2015 and 2014, respectively, and all holders of the 0.75% debentures will require us to repurchase the debentures on August 1, 2015, and upon conversion, the values of the senior convertible debentures will be equal to the aggregate principal amount with no premiums.
|
(2)
|
IFC mortgage loan, including interest, relates to the
$75.0 million
borrowed as of
December 30, 2012
. Under the loan agreement, we are required to repay the amount borrowed, starting 2 years after the date of borrowing, in 10 equal semiannual installments over the following 5 years. If we utilize a waiver signed with IFC, we are required to pay interest of LIBOR plus 3% per annum on outstanding borrowings through January 5, 2013, LIBOR plus 4.25% per annum on outstanding borrowings from January 6, 2013 through September 30, 2013, LIBOR plus 5% per annum on outstanding borrowings from October 1, 2013 through January 5, 2014, and LIBOR plus 3% per annum on outstanding borrowings from January 6, 2014 through maturity. If we do not need to utilize the waiver, we are required to pay interest of LIBOR plus 3% per annum on outstanding borrowings; a front-end fee of 1% on the principal amount of
|
(3)
|
CEDA loan, including interest, relates to the proceeds of the
$30.0 million
aggregate principal amount of the Bonds. The Bonds mature on April 1, 2031. On June 1, 2011 the Bonds were converted to bear interest at a fixed rate of 8.50% through maturity.
|
(4)
|
Credit Agricole revolving credit facility, with interest, relates to the
$275.0 million
borrowed as of
December 30, 2012
and maturing on January 31, 2014. We are required to pay interest on outstanding borrowings of (a) with respect to any LIBOR loan, 0.6% plus the LIBOR divided by a percentage equal to one minus the stated maximum rate of all reserves required to be maintained against "Eurocurrency liabilities" as specified in Regulation D; (b) with respect to any alternative base loan, 0.25% plus the greater of (1) the prime rate, (2) the Federal Funds rate plus
0.5%
, and (3) the one month LIBOR plus
1%
.
|
(5)
|
We and AUO agreed in the joint venture agreement to contribute additional amounts to AUOSP in fiscal 2012 through 2014 amounting to
$241.0 million
by each shareholder, or such lesser amount as the parties may mutually agree. Further, in connection with a purchase agreement with a non-public company we will be required to provide additional financing to such party of up to
$4.9 million
, subject to certain conditions. Under our long-term convertible note agreement with Diamond Energy Pty. Ltd., we are additionally required to provide additional funds amounting to AUD 1.0 million during fiscal 2013.
|
(6)
|
Operating lease commitments primarily relate to certain solar power systems leased from unaffiliated third parties over minimum lease terms of up to 20 years and various lease agreements for our headquarters in San Jose, California, sales and support offices throughout the United States and Europe and a solar module facility in Mexicali, Mexico.
|
(7)
|
Capital lease commitments primarily relate to certain buildings, manufacturing
and equipment under capital leases in Europe for terms of up to 12 years.
|
(8)
|
Non-cancellable purchase orders relate to purchases of raw materials for inventory and manufacturing equipment from a variety of vendors.
|
(9)
|
Purchase commitments under agreements relate to arrangements entered into with several suppliers, including joint ventures, for polysilicon, ingots, wafers, solar cells and solar panels as well as agreements to purchase solar renewable energy certificates from solar installation owners in New Jersey. These agreements specify future quantities and pricing of products to be supplied by the vendors for periods up to 10 years and there are certain consequences, such as forfeiture of advanced deposits and liquidated damages relating to previous purchases, in the event that we terminate the arrangements.
|
|
Page
|
|
|
REPORTS OF ERNST & YOUNG LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
|
REPORT OF PRICEWATERHOUSECOOPERS LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
|
|
|
FINANCIAL STATEMENTS
|
|
CONSOLIDATED BALANCE SHEETS
|
|
CONSOLIDATED STATEMENTS OF OPERATIONS
|
|
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
|
|
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
|
|
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
|
|
SCHEDULE II
|
|
December 30, 2012
|
|
January 1, 2012
(1) (2)
|
||||
Assets
|
|
|
|
||||
Current assets:
|
|
|
|
||||
Cash and cash equivalents
|
$
|
457,487
|
|
|
$
|
725,618
|
|
Restricted cash and cash equivalents, current portion
|
15,568
|
|
|
52,279
|
|
||
Accounts receivable, net
|
398,150
|
|
|
438,633
|
|
||
Costs and estimated earnings in excess of billings
|
36,395
|
|
|
54,854
|
|
||
Inventories
|
291,386
|
|
|
445,501
|
|
||
Advances to suppliers, current portion
|
50,282
|
|
|
43,143
|
|
||
Project assets - plants and land, current portion
|
75,911
|
|
|
24,243
|
|
||
Prepaid expenses and other current assets (3)
|
613,053
|
|
|
487,766
|
|
||
Total current assets
|
1,938,232
|
|
|
2,272,037
|
|
||
|
|
|
|
||||
Restricted cash and cash equivalents, net of current portion
|
31,396
|
|
|
27,276
|
|
||
Restricted long-term marketable securities
|
10,885
|
|
|
9,145
|
|
||
Property, plant and equipment, net
|
774,909
|
|
|
643,882
|
|
||
Project assets - plants and land, net of current portion
|
7,596
|
|
|
34,614
|
|
||
Goodwill
|
—
|
|
|
47,077
|
|
||
Other intangible assets, net
|
744
|
|
|
23,900
|
|
||
Advances to suppliers, net of current portion
|
301,123
|
|
|
284,378
|
|
||
Other long-term assets (3)
|
276,063
|
|
|
176,821
|
|
||
Total assets
|
$
|
3,340,948
|
|
|
$
|
3,519,130
|
|
|
|
|
|
||||
Liabilities and Stockholders' Equity
|
|
|
|
|
|
||
Current liabilities:
|
|
|
|
|
|
||
Accounts payable (3)
|
$
|
414,335
|
|
|
$
|
441,655
|
|
Accrued liabilities
|
247,372
|
|
|
249,404
|
|
||
Billings in excess of costs and estimated earnings
|
225,550
|
|
|
170,828
|
|
||
Short-term debt
|
14,700
|
|
|
2,122
|
|
||
Convertible debt, current portion
|
—
|
|
|
196,710
|
|
||
Customer advances, current portion (3)
|
59,648
|
|
|
48,073
|
|
||
Total current liabilities
|
961,605
|
|
|
1,108,792
|
|
||
|
|
|
|
||||
Long-term debt
|
375,661
|
|
|
364,273
|
|
||
Convertible debt, net of current portion
|
438,629
|
|
|
423,268
|
|
||
Customer advances, net of current portion (3)
|
236,082
|
|
|
181,946
|
|
||
Other long-term liabilities
|
335,619
|
|
|
166,126
|
|
||
Total liabilities
|
2,347,596
|
|
|
2,244,405
|
|
||
Commitments and contingencies (Note 10)
|
|
|
|
|
|
||
Stockholders' equity:
|
|
|
|
|
|
||
Preferred stock, $0.001 par value; 10,000,000 shares authorized; none issued and outstanding as of both December 30, 2012 and January 1, 2012
|
—
|
|
|
—
|
|
||
Common stock, $0.001 par value, 367,500,000 shares authorized; 123,315,990 shares issued, and 119,234,280 outstanding as of December 30, 2012; 101,851,290 shares issued, and 100,475,533 shares outstanding as of January 1, 2012
|
119
|
|
|
100
|
|
||
Additional paid-in capital
|
1,931,947
|
|
|
1,845,965
|
|
||
Accumulated deficit
|
(902,085
|
)
|
|
(550,065
|
)
|
||
Accumulated other comprehensive income (loss)
|
(2,521
|
)
|
|
7,142
|
|
||
Treasury stock, at cost; 4,081,710 shares of common stock as of December 30, 2012; 1,375,757 shares of common stock as of January 1, 2012
|
(34,108
|
)
|
|
(28,417
|
)
|
||
Total stockholders' equity
|
993,352
|
|
|
1,274,725
|
|
||
Total liabilities and stockholders' equity
|
$
|
3,340,948
|
|
|
$
|
3,519,130
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
(2)
|
As adjusted to conform to the current period presentation for solar power systems leased and to be leased (see Note 1).
|
(3)
|
The Company has related party balances in connection with transactions made with unconsolidated entities in which the Company has a direct equity investment. These related party balances are recorded within the "Prepaid expenses and other current assets," "Other long-term assets," "Accounts payable," "Customer advances, current portion," and "Customer advances, net of current portion" financial statement line items in the Consolidated Balance Sheets (see Note 7, Note 10, and Note 11).
|
|
|
Year ended
|
||||||||||
|
|
December 30, 2012
|
|
January 1, 2012 (1)
|
|
January 2, 2011
|
||||||
|
|
|
|
|
|
|
||||||
Revenue
|
|
$
|
2,417,501
|
|
|
$
|
2,374,376
|
|
|
$
|
2,219,230
|
|
Cost of revenue
|
|
2,171,103
|
|
|
2,148,158
|
|
|
1,709,337
|
|
|||
Gross margin
|
|
246,398
|
|
|
226,218
|
|
|
509,893
|
|
|||
Operating expenses:
|
|
|
|
|
|
|
||||||
Research and development
|
|
63,456
|
|
|
57,775
|
|
|
49,090
|
|
|||
Sales, general and administrative
|
|
310,246
|
|
|
331,380
|
|
|
321,936
|
|
|||
Goodwill impairment
|
|
46,734
|
|
|
309,457
|
|
|
—
|
|
|||
Other intangible asset impairment
|
|
12,847
|
|
|
40,301
|
|
|
—
|
|
|||
Restructuring charges
|
|
100,823
|
|
|
21,403
|
|
|
—
|
|
|||
Total operating expenses
|
|
534,106
|
|
|
760,316
|
|
|
371,026
|
|
|||
Operating income (loss)
|
|
(287,708
|
)
|
|
(534,098
|
)
|
|
138,867
|
|
|||
Other income (expense), net:
|
|
|
|
|
|
|
||||||
Interest income
|
|
1,091
|
|
|
2,337
|
|
|
1,541
|
|
|||
Interest expense
|
|
(84,120
|
)
|
|
(67,253
|
)
|
|
(55,276
|
)
|
|||
Gain on sale of equity interest in unconsolidated investee
|
|
—
|
|
|
5,937
|
|
|
—
|
|
|||
Gain on change in equity interest in unconsolidated investee
|
|
—
|
|
|
322
|
|
|
28,078
|
|
|||
Gain on deconsolidation of consolidated subsidiary
|
|
—
|
|
|
—
|
|
|
36,849
|
|
|||
Gain on share lending arrangement
|
|
50,645
|
|
|
—
|
|
|
24,000
|
|
|||
Gain on mark-to-market derivatives
|
|
4
|
|
|
343
|
|
|
35,764
|
|
|||
Other, net
|
|
(9,575
|
)
|
|
(10,120
|
)
|
|
(26,410
|
)
|
|||
Other income (expense), net
|
|
(41,955
|
)
|
|
(68,434
|
)
|
|
44,546
|
|
|||
Income (loss) before income taxes and equity in earnings (loss) of unconsolidated investees
|
|
(329,663
|
)
|
|
(602,532
|
)
|
|
183,413
|
|
|||
Provision for income taxes
|
|
(21,842
|
)
|
|
(17,208
|
)
|
|
(23,375
|
)
|
|||
Equity in earnings (loss) of unconsolidated investees
|
|
(515
|
)
|
|
6,003
|
|
|
6,845
|
|
|||
Income (loss) from continuing operations
|
|
(352,020
|
)
|
|
(613,737
|
)
|
|
166,883
|
|
|||
Income from discontinued operations, net of taxes
|
|
—
|
|
|
—
|
|
|
11,841
|
|
|||
Net income (loss)
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
178,724
|
|
|
|
|
|
|
|
|
||||||
Net income (loss) per share of common stock:
|
|
|
|
|
|
|
||||||
Net income (loss) per share - basic
|
|
|
|
|
|
|
||||||
Continuing operations
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.74
|
|
Discontinued operations
|
|
—
|
|
|
—
|
|
|
0.13
|
|
|||
Net income (loss) per share - basic
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.87
|
|
Net income (loss) per share - diluted
|
|
|
|
|
|
|
||||||
Continuing operations
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.64
|
|
Discontinued operations
|
|
—
|
|
|
—
|
|
|
0.11
|
|
|||
Net income (loss) per share - diluted
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.75
|
|
Weighted-average shares:
|
|
|
|
|
|
|
||||||
Basic
|
|
117,093
|
|
|
97,724
|
|
|
95,660
|
|
|||
Diluted
|
|
117,093
|
|
|
97,724
|
|
|
105,698
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012 (1)
|
|
January 2, 2011
|
||||||
Net income (loss)
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
178,724
|
|
Components of comprehensive income (loss):
|
|
|
|
|
|
|
||||||
Translation adjustment
|
|
(959
|
)
|
|
1,401
|
|
|
1,103
|
|
|||
Net unrealized gain (loss) on derivatives (Note 13)
|
|
(10,716
|
)
|
|
(175
|
)
|
|
23,124
|
|
|||
Income taxes
|
|
2,012
|
|
|
2,276
|
|
|
(3,230
|
)
|
|||
Net change in accumulated other comprehensive income (loss)
|
|
(9,663
|
)
|
|
3,502
|
|
|
20,997
|
|
|||
Total comprehensive income (loss)
|
|
$
|
(361,683
|
)
|
|
$
|
(610,235
|
)
|
|
$
|
199,721
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
|
Common Stock
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
|
Shares
|
|
Value
|
|
Additional
Paid-in
Capital
|
|
Treasury
Stock
|
|
Accumulated Other
Comprehensive
Income (Loss)
|
|
Retained Earnings
(Accumulated Deficit)
|
|
Total
Stockholders’
Equity
|
|||||||||||||
Balances at January 3, 2010
|
97,072
|
|
|
$
|
97
|
|
|
$
|
1,520,933
|
|
|
$
|
(12,984
|
)
|
|
$
|
(17,357
|
)
|
|
$
|
(114,309
|
)
|
|
$
|
1,376,380
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
178,724
|
|
|
178,724
|
|
||||||
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
20,997
|
|
|
—
|
|
|
20,997
|
|
||||||
Issuance of common stock upon exercise of options
|
303
|
|
|
—
|
|
|
867
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
867
|
|
||||||
Issuance of restricted stock to employees, net of cancellations
|
967
|
|
|
1
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1
|
|
||||||
Fair value of warrant transactions
|
—
|
|
|
—
|
|
|
30,218
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
30,218
|
|
||||||
Excess tax benefits from stock-based award activity
|
—
|
|
|
—
|
|
|
237
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
237
|
|
||||||
Stock-based compensation expense
|
—
|
|
|
—
|
|
|
54,442
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
54,442
|
|
||||||
Distribution to Cypress under tax sharing agreement
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(743
|
)
|
|
(743
|
)
|
||||||
Purchases of treasury stock
|
(236
|
)
|
|
—
|
|
|
—
|
|
|
(3,689
|
)
|
|
—
|
|
|
—
|
|
|
(3,689
|
)
|
||||||
Balances at January 2, 2011
|
98,106
|
|
|
98
|
|
|
1,606,697
|
|
|
(16,673
|
)
|
|
3,640
|
|
|
63,672
|
|
|
1,657,434
|
|
||||||
Net loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(613,737
|
)
|
|
(613,737
|
)
|
||||||
Other comprehensive income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,502
|
|
|
—
|
|
|
3,502
|
|
||||||
Issuance of common stock upon exercise of options
|
993
|
|
|
1
|
|
|
4,051
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
4,052
|
|
||||||
Issuance of restricted stock to employees, net of cancellations
|
2,161
|
|
|
2
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2
|
|
||||||
Proceeds from warrant transactions
|
—
|
|
|
—
|
|
|
2,261
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,261
|
|
||||||
Excess tax benefits from stock-based award activity
|
—
|
|
|
—
|
|
|
(2,415
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,415
|
)
|
||||||
Stock-based compensation expense
|
—
|
|
|
—
|
|
|
46,880
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
46,880
|
|
||||||
Purchases of treasury stock
|
(784
|
)
|
|
(1
|
)
|
|
—
|
|
|
(11,744
|
)
|
|
—
|
|
|
—
|
|
|
(11,745
|
)
|
||||||
Transfer of entity under common control (Note 3)
|
—
|
|
|
—
|
|
|
188,491
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
188,491
|
|
||||||
Balances at January 1, 2012 (1)
|
100,476
|
|
|
100
|
|
|
1,845,965
|
|
|
(28,417
|
)
|
|
7,142
|
|
|
(550,065
|
)
|
|
1,274,725
|
|
||||||
Net loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(352,020
|
)
|
|
(352,020
|
)
|
||||||
Other comprehensive loss
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(9,663
|
)
|
|
—
|
|
|
(9,663
|
)
|
||||||
Issuance of common stock upon exercise of options
|
20
|
|
|
—
|
|
|
52
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
52
|
|
||||||
Issuance of restricted stock to employees, net of cancellations
|
2,844
|
|
|
2
|
|
|
(2
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Private offering of common stock, net of issuance costs (Note 2)
|
18,600
|
|
|
19
|
|
|
163,596
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
163,615
|
|
||||||
Cash distributions to Parent in connection with the transfer of entities under common control (Note 3)
|
—
|
|
|
—
|
|
|
(169,637
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(169,637
|
)
|
||||||
Fair value of warrant issued
|
—
|
|
|
—
|
|
|
50,327
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
50,327
|
|
||||||
Returned shares from share lending agreement (Note 12)
|
(1,800
|
)
|
|
(2
|
)
|
|
—
|
|
|
2
|
|
|
—
|
|
|
—
|
|
|
—
|
|
||||||
Stock-based compensation expense
|
—
|
|
|
—
|
|
|
41,646
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
41,646
|
|
||||||
Purchases of treasury stock
|
(906
|
)
|
|
—
|
|
|
—
|
|
|
(5,693
|
)
|
|
—
|
|
|
—
|
|
|
(5,693
|
)
|
||||||
Balances at December 30, 2012
|
119,234
|
|
|
$
|
119
|
|
|
$
|
1,931,947
|
|
|
$
|
(34,108
|
)
|
|
$
|
(2,521
|
)
|
|
$
|
(902,085
|
)
|
|
$
|
993,352
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
|
Year ended
|
||||||||||
|
December 30, 2012
|
|
January 1, 2012 (1) (2)
|
|
January 2, 2011
|
||||||
Cash flows from operating activities:
|
|
|
|
|
|
||||||
Net income (loss)
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
178,724
|
|
Less: Income from discontinued operations, net of taxes
|
—
|
|
|
—
|
|
|
11,841
|
|
|||
Income (loss) from continuing operations, net of taxes
|
(352,020
|
)
|
|
(613,737
|
)
|
|
166,883
|
|
|||
Adjustments to reconcile net income (loss) from continuing operations to net cash provided by (used in) operating activities:
|
|
|
|
|
|
||||||
Stock-based compensation
|
42,439
|
|
|
46,736
|
|
|
54,372
|
|
|||
Depreciation
|
108,656
|
|
|
107,100
|
|
|
102,192
|
|
|||
Loss on retirement of property, plant and equipment
|
77,807
|
|
|
—
|
|
|
—
|
|
|||
Amortization of other intangible assets
|
9,114
|
|
|
23,372
|
|
|
38,477
|
|
|||
Goodwill impairment
|
46,734
|
|
|
309,457
|
|
|
—
|
|
|||
Other intangible asset impairment
|
12,847
|
|
|
40,301
|
|
|
—
|
|
|||
Loss (gain) on sale of investments
|
—
|
|
|
191
|
|
|
(770
|
)
|
|||
Gain on mark-to-market derivatives
|
(4
|
)
|
|
(343
|
)
|
|
(35,764
|
)
|
|||
Non-cash interest expense
|
38,177
|
|
|
28,627
|
|
|
30,616
|
|
|||
Amortization of debt issuance costs
|
3,845
|
|
|
5,126
|
|
|
18,426
|
|
|||
Amortization of promissory notes
|
—
|
|
|
3,486
|
|
|
11,054
|
|
|||
Gain on change in equity interest in unconsolidated investee
|
—
|
|
|
(322
|
)
|
|
(28,078
|
)
|
|||
Gain on sale of equity interest in unconsolidated investee
|
—
|
|
|
(5,937
|
)
|
|
—
|
|
|||
Equity in (earnings) loss of unconsolidated investees
|
515
|
|
|
(6,003
|
)
|
|
(6,845
|
)
|
|||
Third-party inventories write-down
|
8,869
|
|
|
23,651
|
|
|
—
|
|
|||
Gain on deconsolidation of consolidated subsidiary
|
—
|
|
|
—
|
|
|
(36,849
|
)
|
|||
Project assets write-down related to change in European government incentives
|
—
|
|
|
16,053
|
|
|
—
|
|
|||
Gain on share lending arrangement
|
(50,645
|
)
|
|
—
|
|
|
(24,000
|
)
|
|||
Deferred income taxes and other tax liabilities
|
(4,332
|
)
|
|
(14,385
|
)
|
|
15,889
|
|
|||
Changes in operating assets and liabilities, net of effect of acquisition:
|
|
|
|
|
|
||||||
Accounts receivable
|
11,522
|
|
|
23,383
|
|
|
(132,184
|
)
|
|||
Costs and estimated earnings in excess of billings
|
18,458
|
|
|
41,165
|
|
|
(63,444
|
)
|
|||
Inventories
|
28,324
|
|
|
(81,994
|
)
|
|
(114,534
|
)
|
|||
Project assets
|
(23,397
|
)
|
|
(34,113
|
)
|
|
(10,687
|
)
|
|||
Prepaid expenses and other assets
|
(136,121
|
)
|
|
(182,687
|
)
|
|
(2,519
|
)
|
|||
Advances to suppliers
|
(23,883
|
)
|
|
(40,492
|
)
|
|
(96,060
|
)
|
|||
Accounts payable and other accrued liabilities
|
91,564
|
|
|
46,256
|
|
|
157,993
|
|
|||
Billings in excess of costs and estimated earnings
|
54,723
|
|
|
121,488
|
|
|
33,591
|
|
|||
Customer advances
|
65,711
|
|
|
49,317
|
|
|
90,643
|
|
|||
Net cash provided by (used in) operating activities of continuing operations
|
28,903
|
|
|
(94,304
|
)
|
|
168,402
|
|
|||
Net cash used in operating activities of discontinued operations
|
—
|
|
|
—
|
|
|
(1,593
|
)
|
|||
Net cash provided by (used in) operating activities
|
28,903
|
|
|
(94,304
|
)
|
|
166,809
|
|
|||
Cash flows from investing activities:
|
|
|
|
|
|
||||||
Decrease (increase) in restricted cash and cash equivalents
|
32,591
|
|
|
176,744
|
|
|
(5,555
|
)
|
|||
Purchase of property, plant and equipment
|
(104,786
|
)
|
|
(131,512
|
)
|
|
(119,152
|
)
|
|||
Cash paid for solar power systems, leased and to be leased
|
(150,446
|
)
|
|
(11,631
|
)
|
|
—
|
|
|||
Proceeds from sale of equipment to third-party
|
424
|
|
|
514
|
|
|
5,284
|
|
|||
Purchase of marketable securities
|
(1,436
|
)
|
|
(9,180
|
)
|
|
(40,132
|
)
|
|||
Proceeds from sales or maturities of available-for-sale securities
|
—
|
|
|
43,759
|
|
|
1,572
|
|
|||
Cash decrease due to deconsolidation of consolidated subsidiary
|
—
|
|
|
—
|
|
|
(12,879
|
)
|
|||
Cash paid for acquisition, net of cash acquired
|
—
|
|
|
—
|
|
|
(272,699
|
)
|
|||
Cash received for sale of investment in unconsolidated investees
|
17,403
|
|
|
75,346
|
|
|
—
|
|
|||
Cash paid for investments in unconsolidated investees
|
(13,817
|
)
|
|
(80,000
|
)
|
|
(17,799
|
)
|
|||
Net cash provided by (used in) investing activities of continuing operations
|
(220,067
|
)
|
|
64,040
|
|
|
(461,360
|
)
|
|||
Net cash provided by investing activities of discontinued operations
|
—
|
|
|
—
|
|
|
33,950
|
|
|||
Net cash provided by (used in) investing activities
|
(220,067
|
)
|
|
64,040
|
|
|
(427,410
|
)
|
|||
Cash flows from financing activities:
|
|
|
|
|
|
||||||
Proceeds from issuance of bank loans, net of issuance costs
|
150,000
|
|
|
489,221
|
|
|
214,655
|
|
|||
Proceeds from issuance of project loans, net of issuance costs
|
27,617
|
|
|
—
|
|
|
318,638
|
|
|||
Repayment of bank loans, project loans and other debt
|
(154,078
|
)
|
|
(377,124
|
)
|
|
(63,646
|
)
|
|||
Proceeds from residential lease financing
|
60,377
|
|
|
—
|
|
|
—
|
|
|||
Assumption of project loans by customers
|
—
|
|
|
—
|
|
|
(333,467
|
)
|
|||
Proceeds from recovery of claim in connection with share lending arrangement
|
50,645
|
|
|
—
|
|
|
24,000
|
|
|||
Proceeds from issuance of convertible debt, net of issuance costs
|
—
|
|
|
—
|
|
|
244,241
|
|
|||
Cash paid for repurchase of convertible debt
|
(198,608
|
)
|
|
—
|
|
|
(143,804
|
)
|
|||
Cash paid for bond hedge
|
—
|
|
|
—
|
|
|
(75,200
|
)
|
|||
Proceeds from private offering of common stock, net of issuance costs
|
163,616
|
|
|
—
|
|
|
—
|
|
|||
Cash increase in connection with the consolidation of an entity under common control
|
—
|
|
|
50,443
|
|
|
—
|
|
|||
Cash distributions to Parent in connection with the transfer of entities under common control
|
(169,637
|
)
|
|
—
|
|
|
—
|
|
|||
Proceeds from warrant transactions
|
—
|
|
|
2,261
|
|
|
61,450
|
|
|||
Proceeds from exercise of stock options
|
51
|
|
|
4,051
|
|
|
867
|
|
|||
Purchases of stock for tax withholding obligations on vested restricted stock
|
(5,691
|
)
|
|
(11,744
|
)
|
|
(3,689
|
)
|
|||
Net cash provided by (used in) financing activities of continuing operations
|
(75,708
|
)
|
|
157,108
|
|
|
244,045
|
|
|||
Net cash provided by financing activities of discontinued operations
|
—
|
|
|
—
|
|
|
17,059
|
|
|||
Net cash provided by (used in) financing activities
|
(75,708
|
)
|
|
157,108
|
|
|
261,104
|
|
|||
Effect of exchange rate changes on cash and cash equivalents
|
(1,259
|
)
|
|
(6,646
|
)
|
|
(10,962
|
)
|
|||
Net increase (decrease) in cash and cash equivalents
|
(268,131
|
)
|
|
120,198
|
|
|
(10,459
|
)
|
|||
Cash and cash equivalents at beginning of period
|
725,618
|
|
|
605,420
|
|
|
615,879
|
|
|||
Cash and cash equivalents, end of period
|
$
|
457,487
|
|
|
$
|
725,618
|
|
|
$
|
605,420
|
|
|
|
|
|
|
|
||||||
Non-cash transactions:
|
|
|
|
|
|
||||||
Assignment of residential lease receivables to a third party financial institution
|
$
|
23,813
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Property, plant and equipment acquisitions funded by liabilities
|
$
|
6,408
|
|
|
$
|
10,888
|
|
|
$
|
5,937
|
|
Costs of solar power systems, leased and to be leased, sourced from existing inventory
|
$
|
117,692
|
|
|
$
|
10,158
|
|
|
$
|
—
|
|
Costs of solar power systems, leased and to be leased, funded by liabilities
|
$
|
6,544
|
|
|
$
|
1,767
|
|
|
$
|
—
|
|
Non-cash interest expense capitalized and added to the cost of qualified assets
|
$
|
1,773
|
|
|
$
|
2,423
|
|
|
$
|
5,957
|
|
Issuance of warrants in connection with the Liquidity Support Agreement
|
$
|
50,327
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Proceeds from issuance of bond, net of issuance costs
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
29,538
|
|
Supplemental cash flow information:
|
|
|
|
|
|
||||||
Cash paid for interest, net of amount capitalized
|
$
|
40,621
|
|
|
$
|
28,280
|
|
|
$
|
16,592
|
|
Cash paid for income taxes
|
$
|
8,073
|
|
|
$
|
28,154
|
|
|
$
|
10,582
|
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
(2)
|
As adjusted to conform to the current period presentation for solar power systems leased and to be leased (see Note 1).
|
|
Useful Lives
in Years
|
Buildings
|
20
|
Leasehold improvements
|
1 to 20
|
Manufacturing equipment
|
8 to 15
|
Computer equipment
|
2 to 7
|
Solar power systems
|
30
|
Furniture and fixtures
|
3 to 5
|
|
As of
|
||||||
|
January 1, 2012
|
||||||
|
As Adjusted for the Change in Reporting Entity
|
|
As Previously Reported
in the 2011 Annual
Report on Form 10-K
|
||||
Assets
|
|
|
|
||||
Current assets:
|
|
|
|
||||
Cash and cash equivalents
|
$
|
725,618
|
|
|
$
|
657,934
|
|
Restricted cash and cash equivalents, current portion
|
52,279
|
|
|
52,279
|
|
||
Accounts receivable, net
|
438,633
|
|
|
390,262
|
|
||
Costs and estimated earnings in excess of billings
|
54,854
|
|
|
54,854
|
|
||
Inventories
|
445,501
|
|
|
397,262
|
|
||
Advances to suppliers, current portion
|
43,143
|
|
|
43,143
|
|
||
Project assets - plants and land, current portion
|
24,243
|
|
|
24,243
|
|
||
Prepaid expenses and other current assets
|
502,879
|
|
|
482,691
|
|
||
Total current assets
|
2,287,150
|
|
|
2,102,668
|
|
||
|
|
|
|
||||
Restricted cash and cash equivalents, net of current portion
|
27,276
|
|
|
27,276
|
|
||
Restricted long-term marketable securities
|
9,145
|
|
|
9,145
|
|
||
Property, plant and equipment, net
|
628,769
|
|
|
607,456
|
|
||
Project assets - plants and land, net of current portion
|
34,614
|
|
|
34,614
|
|
||
Goodwill
|
47,077
|
|
|
35,990
|
|
||
Other intangible assets, net
|
23,900
|
|
|
4,848
|
|
||
Advances to suppliers, net of current portion
|
284,378
|
|
|
278,996
|
|
||
Other long-term assets
|
176,821
|
|
|
174,204
|
|
||
Total assets
|
$
|
3,519,130
|
|
|
$
|
3,275,197
|
|
|
|
|
|
||||
Liabilities and Stockholders' Equity
|
|
|
|
||||
Current liabilities:
|
|
|
|
||||
Accounts payable
|
$
|
441,655
|
|
|
$
|
416,615
|
|
Accrued liabilities
|
249,404
|
|
|
234,688
|
|
||
Billings in excess of costs and estimated earnings
|
170,828
|
|
|
170,828
|
|
||
Short-term debt
|
2,122
|
|
|
—
|
|
||
Convertible debt, current portion
|
196,710
|
|
|
196,710
|
|
||
Customer advances, current portion
|
48,073
|
|
|
46,139
|
|
||
Total current liabilities
|
1,108,792
|
|
|
1,064,980
|
|
||
|
|
|
|
||||
Long-term debt
|
364,273
|
|
|
355,000
|
|
||
Convertible debt, net of current portion
|
423,268
|
|
|
423,268
|
|
||
Customer advances, net of current portion
|
181,946
|
|
|
181,947
|
|
||
Other long-term liabilities
|
166,126
|
|
|
152,492
|
|
||
Total liabilities
|
2,244,405
|
|
|
2,177,687
|
|
||
Commitments and contingencies
|
|
|
|
||||
Stockholders' equity:
|
|
|
|
||||
Preferred stock, $0.001 par value; 10,000,000 shares authorized; none issued and outstanding as of January 1, 2012
|
—
|
|
|
—
|
|
||
Common stock, $0.001 par value, 367,500,000 shares authorized; 101,851,290 shares issued, and 100,475,533 shares outstanding as of January 1, 2012
|
100
|
|
|
100
|
|
||
Additional paid-in capital
|
1,845,965
|
|
|
1,657,474
|
|
||
Accumulated deficit
|
(550,065
|
)
|
|
(540,187
|
)
|
||
Accumulated other comprehensive income
|
7,142
|
|
|
8,540
|
|
||
Treasury stock, at cost; 1,375,757 shares of common stock as of January 1, 2012
|
(28,417
|
)
|
|
(28,417
|
)
|
||
Total stockholders' equity
|
1,274,725
|
|
|
1,097,510
|
|
||
Total liabilities and stockholders' equity
|
$
|
3,519,130
|
|
|
$
|
3,275,197
|
|
|
|
Year Ended
|
||||||
|
|
January 1, 2012
|
||||||
(In thousands)
|
|
As Adjusted for the Change in Reporting Entity
|
|
As Previously Reported
in the 2011 Annual
Report on Form 10-K
|
||||
|
|
|
|
|
||||
Revenue
|
|
$
|
2,374,376
|
|
|
$
|
2,312,494
|
|
Cost of revenue
|
|
2,148,158
|
|
|
2,084,290
|
|
||
Gross margin
|
|
226,218
|
|
|
228,204
|
|
||
Operating expenses:
|
|
|
|
|
||||
Research and development
|
|
57,775
|
|
|
57,775
|
|
||
Sales, general and administrative
|
|
331,380
|
|
|
319,719
|
|
||
Goodwill impairment
|
|
309,457
|
|
|
309,457
|
|
||
Other intangible asset impairment
|
|
40,301
|
|
|
40,301
|
|
||
Restructuring charges
|
|
21,403
|
|
|
21,403
|
|
||
Total operating expenses
|
|
760,316
|
|
|
748,655
|
|
||
Operating loss
|
|
(534,098
|
)
|
|
(520,451
|
)
|
||
Other expense, net:
|
|
|
|
|
||||
Interest income
|
|
2,337
|
|
|
2,054
|
|
||
Interest expense
|
|
(67,253
|
)
|
|
(67,022
|
)
|
||
Gain on change in equity interest in unconsolidated investee
|
|
322
|
|
|
322
|
|
||
Gain on sale of equity interest in unconsolidated investee
|
|
5,937
|
|
|
5,937
|
|
||
Gain on mark-to-market derivatives
|
|
343
|
|
|
343
|
|
||
Other, net
|
|
(10,120
|
)
|
|
(8,946
|
)
|
||
Other expense, net
|
|
(68,434
|
)
|
|
(67,312
|
)
|
||
Loss before income taxes and equity in earnings of unconsolidated investees
|
|
(602,532
|
)
|
|
(587,763
|
)
|
||
Provision for income taxes
|
|
(17,208
|
)
|
|
(22,099
|
)
|
||
Equity in losses of unconsolidated investees
|
|
6,003
|
|
|
6,003
|
|
||
Net loss
|
|
$
|
(613,737
|
)
|
|
$
|
(603,859
|
)
|
|
|
|
|
|
||||
Net loss per share of common stock:
|
|
|
|
|
||||
Basic and diluted
|
|
$
|
(6.28
|
)
|
|
$
|
(6.18
|
)
|
Weighted-average shares:
|
|
|
|
|
||||
Basic and diluted
|
|
97,724
|
|
|
97,724
|
|
|
|
Year Ended
|
||||||
|
|
January 1, 2012
|
||||||
(In thousands)
|
|
As Adjusted for the Change in Reporting Entity
|
|
As Previously Reported
in the 2011 Annual
Report on Form 10-K
|
||||
|
|
|
|
|
||||
Total comprehensive loss
|
|
$
|
(610,235
|
)
|
|
$
|
(598,959
|
)
|
|
|
Year ended
|
||
(In thousands)
|
|
January 2, 2011
|
||
Utility and power plants revenue
|
|
$
|
11,081
|
|
Gross margin
|
|
11,081
|
|
|
Income from discontinued operations before sale of business unit
|
|
5,862
|
|
|
Gain on sale of business unit
|
|
11,399
|
|
|
Income before income taxes
|
|
17,261
|
|
|
Income from discontinued operations, net of taxes
|
|
11,841
|
|
(In thousands)
|
|
Americas
|
|
EMEA (1)
|
|
APAC
|
|
Total
|
||||||||
As of January 2, 2011
|
|
$
|
185,266
|
|
|
$
|
157,017
|
|
|
$
|
2,987
|
|
|
$
|
345,270
|
|
Goodwill arising from the transfer of entities under common control
|
|
—
|
|
|
11,087
|
|
|
—
|
|
|
11,087
|
|
||||
Goodwill impairment (2)
|
|
(149,276
|
)
|
|
(157,267
|
)
|
|
(2,914
|
)
|
|
(309,457
|
)
|
||||
Translation adjustment
|
|
—
|
|
|
250
|
|
|
(73
|
)
|
|
177
|
|
||||
As of January 1, 2012
|
|
35,990
|
|
|
11,087
|
|
|
—
|
|
|
47,077
|
|
||||
Goodwill impairment (2)
|
|
(35,990
|
)
|
|
(10,744
|
)
|
|
—
|
|
|
(46,734
|
)
|
||||
Translation adjustment
|
|
—
|
|
|
(343
|
)
|
|
—
|
|
|
(343
|
)
|
||||
As of December 30, 2012
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
(1)
|
As adjusted to reflect the balances of Tenesol beginning
October 10, 2011
, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
(2)
|
Impairment amounts in the above table reflect the Company's cumulative-to-date goodwill impairments.
|
(In thousands)
|
|
Gross
|
|
Accumulated
Amortization
|
|
Net
|
||||||
As of December 30, 2012
|
|
|
|
|
|
|
||||||
Patents, trade names and purchased technology
|
|
$
|
49,892
|
|
|
$
|
(49,892
|
)
|
|
$
|
—
|
|
Purchased in-process research and development
|
|
1,000
|
|
|
(361
|
)
|
|
639
|
|
|||
Customer relationships and other
|
|
28,426
|
|
|
(28,321
|
)
|
|
105
|
|
|||
|
|
$
|
79,318
|
|
|
$
|
(78,574
|
)
|
|
$
|
744
|
|
|
|
|
|
|
|
|
|
|
|
|||
As of January 1, 2012 (3)
|
|
|
|
|
|
|
|
|
|
|||
Patents, trade names and purchased technology
|
|
$
|
52,992
|
|
|
$
|
(50,280
|
)
|
|
$
|
2,712
|
|
Purchased in-process research and development
|
|
1,000
|
|
|
(195
|
)
|
|
805
|
|
|||
Customer relationships and other
|
|
45,910
|
|
|
(25,527
|
)
|
|
20,383
|
|
|||
|
|
$
|
99,902
|
|
|
$
|
(76,002
|
)
|
|
$
|
23,900
|
|
(3)
|
As adjusted to reflect the balances of Tenesol beginning
October 10, 2011
, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
(In thousands)
|
|
Amount
|
||
Year
|
|
|
||
2013
|
|
$
|
272
|
|
2014
|
|
167
|
|
|
2015
|
|
166
|
|
|
2016
|
|
139
|
|
|
|
|
$
|
744
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Accounts receivable, net:
|
|
|
|
|
||||
Accounts receivable, gross (1)
|
|
$
|
429,977
|
|
|
$
|
468,320
|
|
Less: allowance for doubtful accounts
|
|
(26,773
|
)
|
|
(21,039
|
)
|
||
Less: allowance for sales returns
|
|
(5,054
|
)
|
|
(8,648
|
)
|
||
|
|
$
|
398,150
|
|
|
$
|
438,633
|
|
(1)
|
Includes short-term finance receivables associated with solar power systems leased of
$4.5 million
and
$0.3 million
as of December 30, 2012 and January 1, 2012, respectively.
|
(In thousands)
|
|
Balance at Beginning of Period
|
|
Charges (Releases) to Expenses / Revenues
|
|
Deductions
|
|
Balance at End of Period
|
||||||||
Allowance for doubtful accounts:
|
|
|
|
|
|
|
|
|
||||||||
Year ended December 30, 2012
|
|
$
|
21,039
|
|
|
$
|
8,898
|
|
|
$
|
(3,164
|
)
|
|
$
|
26,773
|
|
Year ended January 1, 2012
|
|
5,967
|
|
|
18,398
|
|
|
(3,326
|
)
|
|
21,039
|
|
||||
Year ended January 2, 2011
|
|
2,298
|
|
|
11,405
|
|
|
(7,736
|
)
|
|
5,967
|
|
||||
Allowance for sales returns:
|
|
|
|
|
|
|
|
|
||||||||
Year ended December 30, 2012
|
|
8,648
|
|
|
(3,594
|
)
|
|
—
|
|
|
5,054
|
|
||||
Year ended January 1, 2012
|
|
2,387
|
|
|
6,261
|
|
|
—
|
|
|
8,648
|
|
||||
Year ended January 2, 2011
|
|
1,908
|
|
|
2,160
|
|
|
(1,681
|
)
|
|
2,387
|
|
||||
Valuation allowance for deferred tax assets (2):
|
|
|
|
|
|
|
|
|
||||||||
Year ended December 30, 2012
|
|
129,946
|
|
|
52,376
|
|
|
—
|
|
|
182,322
|
|
||||
Year ended January 1, 2012
|
|
4,644
|
|
|
125,302
|
|
|
—
|
|
|
129,946
|
|
||||
Year ended January 2, 2011
|
|
42,163
|
|
|
(37,519
|
)
|
|
—
|
|
|
4,644
|
|
(2)
|
The above table reflects adjustments to the valuation allowance for prior years, which did not have a material impact on the financial statements as there was a corresponding adjustment to the Company's gross deferred tax assets.
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Inventories:
|
|
|
|
|
||||
Raw materials
|
|
$
|
89,331
|
|
|
$
|
78,050
|
|
Work-in-process
|
|
50,627
|
|
|
79,397
|
|
||
Finished goods
|
|
151,428
|
|
|
288,054
|
|
||
|
|
$
|
291,386
|
|
|
$
|
445,501
|
|
(3)
|
Includes tolling agreements with suppliers in which the Company provides polysilicon required for silicon ingot manufacturing and procures the manufactured silicon ingots from the suppliers (see Notes 10 and 11).
|
(4)
|
The Company's mortgage loan agreement with International Finance Corporation ("IFC") is collateralized by certain manufacturing equipment with a net book value of
$152.9 million
and
$196.6 million
as of
December 30, 2012
and
January 1, 2012
, respectively. The Company also provided security for advance payments received from a third party in fiscal 2008 in the form of collateralized manufacturing equipment with a net book value of
$16.5 million
and
$21.1 million
as of
December 30, 2012
and
January 1, 2012
, respectively.
|
(5)
|
Total
depreciation expense was
$108.7 million
,
$107.1 million
, and
$102.2 million
in fiscal 2012, 2011, and 2010, respectively.
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Property, plant and equipment, net by geography (6):
|
|
|
|
|
||||
Philippines
|
|
$
|
367,708
|
|
|
$
|
490,074
|
|
United States
|
|
343,710
|
|
|
108,549
|
|
||
Mexico
|
|
32,409
|
|
|
21,686
|
|
||
Europe
|
|
29,292
|
|
|
20,830
|
|
||
Other
|
|
1,790
|
|
|
2,743
|
|
||
|
|
$
|
774,909
|
|
|
$
|
643,882
|
|
(6)
|
Property, plant and equipment, net are based on the physical location of the assets.
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Interest expense:
|
|
|
|
|
|
|
||||||
Interest cost incurred
|
|
$
|
(88,738
|
)
|
|
$
|
(72,505
|
)
|
|
$
|
(65,324
|
)
|
Cash interest cost capitalized - property, plant and equipment
|
|
1,142
|
|
|
1,503
|
|
|
565
|
|
|||
Non-cash interest cost capitalized - property, plant and equipment
|
|
520
|
|
|
942
|
|
|
774
|
|
|||
Cash interest cost capitalized - project assets - plant and land
|
|
1,703
|
|
|
1,326
|
|
|
3,526
|
|
|||
Non-cash interest cost capitalized - project assets - plant and land
|
|
1,253
|
|
|
1,481
|
|
|
5,183
|
|
|||
Interest expense
|
|
$
|
(84,120
|
)
|
|
$
|
(67,253
|
)
|
|
$
|
(55,276
|
)
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Other long-term assets:
|
|
|
|
|
||||
Equity method investments
|
|
$
|
111,516
|
|
|
$
|
129,929
|
|
Bond hedge derivative
|
|
2,327
|
|
|
840
|
|
||
Cost method investments
|
|
14,918
|
|
|
4,918
|
|
||
VAT receivables, net of current portion
|
|
—
|
|
|
6,020
|
|
||
Long-term financing receivables
|
|
67,742
|
|
|
5,326
|
|
||
Long-term debt issuance costs
|
|
38,185
|
|
|
10,734
|
|
||
Other
|
|
41,375
|
|
|
19,054
|
|
||
|
|
$
|
276,063
|
|
|
$
|
176,821
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Accrued liabilities:
|
|
|
|
|
||||
VAT payables
|
|
$
|
2,049
|
|
|
$
|
47,034
|
|
Foreign currency derivatives
|
|
4,891
|
|
|
14,935
|
|
||
Short-term warranty reserves
|
|
9,054
|
|
|
15,034
|
|
||
Interest payable
|
|
9,672
|
|
|
7,288
|
|
||
Deferred revenue
|
|
32,507
|
|
|
48,115
|
|
||
Employee compensation and employee benefits
|
|
40,750
|
|
|
35,375
|
|
||
Restructuring reserve
|
|
29,477
|
|
|
6,324
|
|
||
Short-term residential lease financing
|
|
25,153
|
|
|
—
|
|
||
Other
|
|
93,819
|
|
|
75,299
|
|
||
|
|
$
|
247,372
|
|
|
$
|
249,404
|
|
|
|
|
|
|
|
|
||
Other long-term liabilities:
|
|
|
|
|
|
|
||
Embedded conversion option derivatives
|
|
$
|
2,327
|
|
|
$
|
844
|
|
Long-term warranty reserves
|
|
107,803
|
|
|
79,289
|
|
||
Deferred revenue
|
|
128,936
|
|
|
31,988
|
|
||
Unrecognized tax benefits
|
|
35,022
|
|
|
29,256
|
|
||
Long-term residential lease financing
|
|
11,411
|
|
|
—
|
|
||
Other
|
|
50,120
|
|
|
24,749
|
|
||
|
|
$
|
335,619
|
|
|
$
|
166,126
|
|
•
|
Level 1 — Quoted prices in active markets for identical assets or liabilities.
|
•
|
Level 2 — Measurements are inputs that are observable for assets or liabilities, either directly or indirectly, other than quoted prices included within Level 1.
|
•
|
Level 3 — Prices or valuations that require management inputs that are both significant to the fair value measurement and unobservable.
|
|
|
December 30, 2012
|
|
January 1, 2012
|
||||||||||||||||||||
(In thousands)
|
|
Total
|
|
Level 1
|
|
Level 2
|
|
Total
|
|
Level 1
|
|
Level 2
|
||||||||||||
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Cash and cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Money market funds (1)
|
|
$
|
117,254
|
|
|
$
|
117,254
|
|
|
$
|
—
|
|
|
$
|
187,538
|
|
|
$
|
187,538
|
|
|
$
|
—
|
|
Prepaid expenses and other current assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Foreign currency derivatives (Note 13)
|
|
1,275
|
|
|
—
|
|
|
1,275
|
|
|
34,422
|
|
|
—
|
|
|
34,422
|
|
||||||
Other long-term assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Debt derivatives (Note 12)
|
|
2,327
|
|
|
—
|
|
|
2,327
|
|
|
840
|
|
|
—
|
|
|
840
|
|
||||||
Total assets
|
|
$
|
120,856
|
|
|
$
|
117,254
|
|
|
$
|
3,602
|
|
|
$
|
222,800
|
|
|
$
|
187,538
|
|
|
$
|
35,262
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Accrued liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Foreign currency derivatives (Note 13)
|
|
$
|
4,891
|
|
|
$
|
—
|
|
|
$
|
4,891
|
|
|
$
|
14,935
|
|
|
$
|
—
|
|
|
$
|
14,935
|
|
Other long-term liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Debt derivatives (Note 12)
|
|
2,327
|
|
|
—
|
|
|
2,327
|
|
|
844
|
|
|
—
|
|
|
844
|
|
||||||
Total liabilities
|
|
$
|
7,218
|
|
|
$
|
—
|
|
|
$
|
7,218
|
|
|
$
|
15,779
|
|
|
$
|
—
|
|
|
$
|
15,779
|
|
(1)
|
The Company's cash equivalents consist of money market fund instruments which are classified as available-for-sale and within Level 1 of the fair value hierarchy because they are valued using quoted market prices for identical instruments in active markets.
|
|
As of (1)
|
||||||
|
December 30, 2012
|
|
January 1, 2012
|
||||
Stock price
|
$
|
5.49
|
|
|
$
|
6.23
|
|
Exercise price
|
$
|
22.53
|
|
|
$
|
22.53
|
|
Interest rate
|
0.40
|
%
|
|
0.84
|
%
|
||
Stock volatility
|
59.9
|
%
|
|
44.0
|
%
|
||
Credit risk adjustment
|
1.07
|
%
|
|
1.93
|
%
|
||
Maturity date
|
February 18, 2015
|
|
|
February 18, 2015
|
|
(1)
|
The valuation model utilizes these inputs to value the right but not the obligation to purchase one share at
$22.53
. The Company utilized a Black-Scholes valuation model to value the 4.50% Bond Hedge and embedded cash conversion option. The underlying input assumptions were determined as follows:
|
(i)
|
Stock price. The closing price of the Company's common stock on the last trading day of the quarter.
|
(ii)
|
Exercise price. The exercise price of the 4.50% Bond Hedge and the embedded cash conversion option.
|
(iii)
|
Interest rate. The Treasury Strip rate associated with the life of the 4.50% Bond Hedge and the embedded cash conversion option.
|
(iv)
|
Stock volatility. The volatility of the Company's common stock over the life of the 4.50% Bond Hedge and the embedded cash conversion option.
|
(v)
|
Credit risk adjustment. Represents the weighted average of the credit default swap rate of the counterparties.
|
|
|
Year Ended
|
|
Cumulative To Date
|
||||||||||||
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
|
|||||||||
October 2012 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Severance and benefits
|
|
$
|
29,053
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
29,053
|
|
Lease and related termination costs
|
|
714
|
|
|
—
|
|
|
—
|
|
|
714
|
|
||||
Other costs
|
|
460
|
|
|
—
|
|
|
—
|
|
|
460
|
|
||||
|
|
30,227
|
|
|
—
|
|
|
—
|
|
|
30,227
|
|
||||
April 2012 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Non-cash impairment charges
|
|
56,299
|
|
|
—
|
|
|
—
|
|
|
56,299
|
|
||||
Other costs
|
|
5,080
|
|
|
—
|
|
|
—
|
|
|
5,080
|
|
||||
|
|
61,379
|
|
|
—
|
|
|
—
|
|
|
61,379
|
|
||||
December 2011 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Non-cash impairment charges
|
|
3,854
|
|
|
—
|
|
|
—
|
|
|
3,854
|
|
||||
Severance and benefits
|
|
1,505
|
|
|
7,305
|
|
|
—
|
|
|
8,810
|
|
||||
Lease and related termination costs
|
|
2,249
|
|
|
—
|
|
|
—
|
|
|
2,249
|
|
||||
Other costs
|
|
338
|
|
|
172
|
|
|
—
|
|
|
510
|
|
||||
|
|
7,946
|
|
|
7,477
|
|
|
—
|
|
|
15,423
|
|
||||
June 2011 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Severance and benefits
|
|
(160
|
)
|
|
11,186
|
|
|
—
|
|
|
11,026
|
|
||||
Lease and related termination costs
|
|
1,269
|
|
|
688
|
|
|
—
|
|
|
1,957
|
|
||||
Other costs
|
|
162
|
|
|
2,052
|
|
|
—
|
|
|
2,214
|
|
||||
|
|
1,271
|
|
|
13,926
|
|
|
—
|
|
|
15,197
|
|
||||
Total restructuring charges
|
|
$
|
100,823
|
|
|
$
|
21,403
|
|
|
$
|
—
|
|
|
$
|
122,226
|
|
|
|
Year ended
|
||||||||||||||
(In thousands)
|
|
January 1, 2012
|
|
Charges (Benefits)
|
|
Payments
|
|
December 30, 2012
|
||||||||
October 2012 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Severance and benefits
|
|
$
|
—
|
|
|
$
|
29,053
|
|
|
$
|
(4,614
|
)
|
|
$
|
24,439
|
|
Lease and related termination costs
|
|
—
|
|
|
714
|
|
|
—
|
|
|
714
|
|
||||
Other costs (1) (2)
|
|
—
|
|
|
460
|
|
|
(102
|
)
|
|
358
|
|
||||
April 2012 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Other costs (1) (2)
|
|
—
|
|
|
5,080
|
|
|
(3,749
|
)
|
|
1,331
|
|
||||
December 2011 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Severance and benefits
|
|
3,344
|
|
|
1,505
|
|
|
(4,789
|
)
|
|
60
|
|
||||
Lease and related termination costs
|
|
—
|
|
|
2,249
|
|
|
(941
|
)
|
|
1,308
|
|
||||
Other costs (1) (2)
|
|
24
|
|
|
338
|
|
|
(362
|
)
|
|
—
|
|
||||
June 2011 Plan:
|
|
|
|
|
|
|
|
|
||||||||
Severance and benefits (3)
|
|
2,204
|
|
|
(160
|
)
|
|
(2,044
|
)
|
|
—
|
|
||||
Lease and related termination costs
|
|
688
|
|
|
1,269
|
|
|
(829
|
)
|
|
1,128
|
|
||||
Other costs (1)
|
|
64
|
|
|
162
|
|
|
(87
|
)
|
|
139
|
|
||||
Total restructuring liabilities
|
|
$
|
6,324
|
|
|
$
|
40,670
|
|
|
$
|
(17,517
|
)
|
|
$
|
29,477
|
|
(1)
|
Other costs primarily represent associated legal services and costs associated with the decommissioning of Fab 1 assets.
|
(2)
|
The reserve balance excludes non-cash impairment charges incurred in connection with the April 2012 Plan and December 2011 Plan during the year ended
December 30, 2012
.
|
(3)
|
The June 2011 Plan reserve balance as of
January 1, 2012
excludes
$1.4 million
of charges associated with the accelerated vesting of promissory notes, in accordance with the terms of each agreement, previously issued as consideration for an acquisition completed in the first quarter of fiscal 2010. The
$1.4 million
charge is separately recorded in "Accrued liabilities" on the Company's Consolidated Balance Sheet as of
January 1, 2012
, and was fully paid during the first quarter of fiscal 2012.
|
|
|
Capital Lease
|
|
Operating Lease
|
||||
(In thousands)
|
|
Amount
|
|
Amount
|
||||
Year
|
|
|
|
|
||||
2013
|
|
$
|
2,064
|
|
|
$
|
24,737
|
|
2014
|
|
1,423
|
|
|
18,216
|
|
||
2015
|
|
1,219
|
|
|
16,816
|
|
||
2016
|
|
971
|
|
|
16,226
|
|
||
2017
|
|
925
|
|
|
13,543
|
|
||
Thereafter
|
|
2,391
|
|
|
87,561
|
|
||
|
|
$
|
8,993
|
|
|
$
|
177,099
|
|
(In thousands)
|
|
Amount
|
||
Year
|
|
|
||
2013
|
|
$
|
621,304
|
|
2014
|
|
364,713
|
|
|
2015
|
|
366,629
|
|
|
2016
|
|
331,397
|
|
|
2017
|
|
195,026
|
|
|
Thereafter
|
|
517,095
|
|
|
|
|
$
|
2,396,164
|
|
(In thousands)
|
|
Amount
|
||
Year
|
|
|
||
2013
|
|
$
|
81,627
|
|
2014
|
|
65,791
|
|
|
|
|
$
|
147,418
|
|
(In thousands)
|
|
Amount
|
||
Year
|
|
|
||
2013
|
|
$
|
59,648
|
|
2014
|
|
28,799
|
|
|
2015
|
|
26,387
|
|
|
2016
|
|
30,713
|
|
|
2017
|
|
35,039
|
|
|
Thereafter
|
|
115,144
|
|
|
|
|
$
|
295,730
|
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Balance at the beginning of the period (1)
|
|
$
|
94,323
|
|
|
$
|
63,562
|
|
|
$
|
46,475
|
|
Accruals for warranties issued during the period
|
|
29,833
|
|
|
37,927
|
|
|
23,362
|
|
|||
Settlements made during the period
|
|
(6,984
|
)
|
|
(7,166
|
)
|
|
(6,275
|
)
|
|||
Balance at the end of the period
|
|
$
|
117,172
|
|
|
$
|
94,323
|
|
|
$
|
63,562
|
|
(1)
|
As adjusted to reflect the balances of Tenesol beginning
October 10, 2011
, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
(In thousands)
|
|
Amount
|
||
Year
|
|
|
||
2013
|
|
$
|
150,208
|
|
2014
|
|
96,770
|
|
|
|
|
$
|
246,978
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Accounts receivable
|
|
$
|
17,847
|
|
|
$
|
74,396
|
|
Accounts payable
|
|
63,469
|
|
|
109,700
|
|
||
Other long-term assets:
|
|
|
|
|
||||
Long-term note receivable
|
|
1,040
|
|
|
—
|
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Payments made to equity method investees for products/services
|
|
$
|
519,132
|
|
|
$
|
350,158
|
|
|
$
|
87,153
|
|
|
|
|
|
Payments Due by Period
|
||||||||||||||||||||||||
(In thousands)
|
|
Face Value
|
|
2013
|
|
2014
|
|
2015
|
|
2016
|
|
2017
|
|
Beyond 2017
|
||||||||||||||
Convertible debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||
4.50% debentures
|
|
$
|
250,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
250,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
4.75% debentures
|
|
230,000
|
|
|
—
|
|
|
230,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
0.75% debentures
|
|
79
|
|
|
—
|
|
|
—
|
|
|
79
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
IFC mortgage loan
|
|
75,000
|
|
|
12,500
|
|
|
15,000
|
|
|
15,000
|
|
|
15,000
|
|
|
15,000
|
|
|
2,500
|
|
|||||||
CEDA loan
|
|
30,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
30,000
|
|
|||||||
Credit Agricole revolving credit facility
|
|
275,000
|
|
|
—
|
|
|
275,000
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|||||||
Other debt (1)
|
|
1,368
|
|
|
134
|
|
|
78
|
|
|
84
|
|
|
44
|
|
|
—
|
|
|
1,028
|
|
|||||||
|
|
$
|
861,447
|
|
|
$
|
12,634
|
|
|
$
|
520,078
|
|
|
$
|
265,163
|
|
|
$
|
15,044
|
|
|
$
|
15,000
|
|
|
$
|
33,528
|
|
(1)
|
The balance of Other debt excludes payments related to capital leases which are disclosed in Note 10. "Commitments and Contingencies" to these consolidated financial statements.
|
|
|
December 30, 2012
|
|
January 1, 2012
|
||||||||||||||||||||
(In thousands)
|
|
Carrying Value
|
|
Face Value
|
|
Fair Value (1)
|
|
Carrying Value
|
|
Face Value
|
|
Fair Value (1)
|
||||||||||||
Convertible debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
4.50% debentures
|
|
$
|
208,550
|
|
|
$
|
250,000
|
|
|
$
|
228,750
|
|
|
$
|
193,189
|
|
|
$
|
250,000
|
|
|
$
|
205,905
|
|
4.75% debentures
|
|
230,000
|
|
|
230,000
|
|
|
218,960
|
|
|
230,000
|
|
|
230,000
|
|
|
200,967
|
|
||||||
1.25% debentures
|
|
—
|
|
|
—
|
|
|
—
|
|
|
196,710
|
|
|
198,608
|
|
|
197,615
|
|
||||||
0.75% debentures
|
|
79
|
|
|
79
|
|
|
79
|
|
|
79
|
|
|
79
|
|
|
79
|
|
||||||
|
|
$
|
438,629
|
|
|
$
|
480,079
|
|
|
$
|
447,789
|
|
|
$
|
619,978
|
|
|
$
|
678,687
|
|
|
$
|
604,566
|
|
(1)
|
The fair value of the convertible debt was determined using Level 1 inputs based on quarterly market prices as reported by an independent pricing source.
|
(In thousands)
|
|
Debt Discount
|
||
2013
|
|
$
|
17,340
|
|
2014
|
|
19,748
|
|
|
2015
|
|
4,362
|
|
|
|
|
$
|
41,450
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Short-term debt
|
|
$
|
12,500
|
|
|
$
|
—
|
|
Long-term debt
|
|
62,500
|
|
|
75,000
|
|
||
|
|
$
|
75,000
|
|
|
$
|
75,000
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Long-term debt
|
|
$
|
30,000
|
|
|
$
|
30,000
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Long-term debt
|
|
$
|
275,000
|
|
|
$
|
250,000
|
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Short-term debt
|
|
$
|
134
|
|
|
$
|
—
|
|
Long-term debt
|
|
1,234
|
|
|
1,240
|
|
||
|
|
$
|
1,368
|
|
|
$
|
1,240
|
|
(In thousands)
|
|
Balance Sheet Classification
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Assets
|
|
Prepaid expenses and other current assets
|
|
|
|
|
||||
Derivatives designated as hedging instruments:
|
|
|
|
|
|
|
||||
Foreign currency option contracts
|
|
|
|
$
|
519
|
|
|
$
|
5,550
|
|
Foreign currency forward exchange contracts
|
|
|
|
—
|
|
|
47
|
|
||
|
|
|
|
$
|
519
|
|
|
$
|
5,597
|
|
Derivatives not designated as hedging instruments:
|
|
|
|
|
|
|
||||
Foreign currency option contracts
|
|
|
|
$
|
25
|
|
|
$
|
5,080
|
|
Foreign currency forward exchange contracts
|
|
|
|
731
|
|
|
23,745
|
|
||
|
|
|
|
$
|
756
|
|
|
$
|
28,825
|
|
|
|
|
|
|
|
|
||||
Liabilities
|
|
Accrued liabilities
|
|
|
|
|
||||
Derivatives designated as hedging instruments:
|
|
|
|
|
|
|
||||
Foreign currency option contracts
|
|
|
|
$
|
387
|
|
|
$
|
—
|
|
Foreign currency forward exchange contracts
|
|
|
|
23
|
|
|
105
|
|
||
|
|
|
|
$
|
410
|
|
|
$
|
105
|
|
|
|
|
|
|
|
|
||||
Derivatives not designated as hedging instruments:
|
|
|
|
|
|
|
||||
Foreign currency option contracts
|
|
|
|
$
|
26
|
|
|
$
|
—
|
|
Foreign currency forward exchange contracts
|
|
|
|
4,455
|
|
|
14,830
|
|
||
|
|
|
|
$
|
4,481
|
|
|
$
|
14,830
|
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Derivatives designated as cash flow hedges:
|
|
|
|
|
|
|
||||||
Unrealized gain (loss) recognized in OCI (effective portion)
|
|
$
|
(1,720
|
)
|
|
$
|
(32,224
|
)
|
|
$
|
56,755
|
|
Less: Loss (gain) reclassified from OCI to revenue (effective portion)
|
|
(8,996
|
)
|
|
30,456
|
|
|
(46,109
|
)
|
|||
Less: Loss reclassified from OCI to other, net (1)
|
|
—
|
|
|
1,593
|
|
|
—
|
|
|||
Add: Loss reclassified from OCI to cost of revenue (effective portion)
|
|
—
|
|
|
—
|
|
|
12,478
|
|
|||
Net gain (loss) on derivatives
|
|
$
|
(10,716
|
)
|
|
$
|
(175
|
)
|
|
$
|
23,124
|
|
(1)
|
During 2011, the Company reclassified from OCI to "Other, net" a net loss of
$1.6 million
relating to transactions previously designated as effective cash flow hedges as the related forecasted transactions did not occur or were concluded probable not to occur in the hedge period or within the additional two month time period thereafter.
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Derivatives designated as cash flow hedges:
|
|
|
|
|
|
|
||||||
Loss recognized in "Other, net" on derivatives (ineffective portion and amount excluded from effectiveness testing) (1)
|
|
$
|
(1,853
|
)
|
|
$
|
(18,235
|
)
|
|
$
|
(25,659
|
)
|
Derivatives not designated as hedging instruments:
|
|
|
|
|
|
|
||||||
Gain (loss) recognized in "Other, net"
|
|
$
|
3,126
|
|
|
$
|
(3,972
|
)
|
|
$
|
36,607
|
|
(1)
|
The amount of loss recognized related to the ineffective portion of derivatives was insignificant. This amount also includes a net loss of
$1.6 million
reclassified from OCI to "Other, net" in the year ended January 1, 2012 relating to transactions previously designated as effective cash flow hedges as the related forecasted transactions did not occur or were concluded probable not to occur in the hedge period or within the additional two month time period thereafter.
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Geographic distribution of income (loss) from continuing operations before income taxes and equity in earnings of unconsolidated investees:
|
|
|
|
|
|
|
||||||
U.S. loss
|
|
$
|
(140,432
|
)
|
|
$
|
(431,185
|
)
|
|
$
|
(33,795
|
)
|
Non-U.S. income (loss)
|
|
(189,231
|
)
|
|
(171,347
|
)
|
|
217,208
|
|
|||
Income (loss) from continuing operations before income taxes and equity in earnings of unconsolidated investees
|
|
$
|
(329,663
|
)
|
|
$
|
(602,532
|
)
|
|
$
|
183,413
|
|
Provision for income taxes:
|
|
|
|
|
|
|
|
|
|
|||
Current tax benefit (expense)
|
|
|
|
|
|
|
|
|
|
|||
Federal
|
|
$
|
—
|
|
|
$
|
(3,105
|
)
|
|
$
|
(1,490
|
)
|
State
|
|
(805
|
)
|
|
(317
|
)
|
|
2,683
|
|
|||
Foreign
|
|
(28,183
|
)
|
|
(14,112
|
)
|
|
(25,067
|
)
|
|||
Total current tax expense
|
|
$
|
(28,988
|
)
|
|
$
|
(17,534
|
)
|
|
$
|
(23,874
|
)
|
Deferred tax benefit
|
|
|
|
|
|
|
|
|
|
|||
Federal
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
State
|
|
—
|
|
|
—
|
|
|
—
|
|
|||
Foreign
|
|
7,146
|
|
|
326
|
|
|
499
|
|
|||
Total deferred tax benefit
|
|
7,146
|
|
|
326
|
|
|
499
|
|
|||
Provision for income taxes
|
|
$
|
(21,842
|
)
|
|
$
|
(17,208
|
)
|
|
$
|
(23,375
|
)
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Statutory rate
|
|
35
|
%
|
|
35
|
%
|
|
35
|
%
|
|||
Tax benefit (expense) at U.S. statutory rate
|
|
$
|
115,382
|
|
|
$
|
210,886
|
|
|
$
|
(64,195
|
)
|
Foreign rate differential
|
|
(82,017
|
)
|
|
(73,757
|
)
|
|
48,051
|
|
|||
State income taxes, net of benefit
|
|
(805
|
)
|
|
(317
|
)
|
|
3,349
|
|
|||
Goodwill impairment
|
|
(12,596
|
)
|
|
(52,247
|
)
|
|
—
|
|
|||
Share lending arrangement
|
|
—
|
|
|
—
|
|
|
8,400
|
|
|||
Total investment related costs
|
|
—
|
|
|
(2,878
|
)
|
|
—
|
|
|||
Tax credits (research and development/investment tax credit)
|
|
939
|
|
|
4,409
|
|
|
642
|
|
|||
Deferred taxes not benefitted
|
|
(53,075
|
)
|
|
(99,703
|
)
|
|
(19,184
|
)
|
|||
Lehman settlement
|
|
17,726
|
|
|
—
|
|
|
—
|
|
|||
Other, net
|
|
(7,396
|
)
|
|
(3,601
|
)
|
|
(438
|
)
|
|||
Total
|
|
$
|
(21,842
|
)
|
|
$
|
(17,208
|
)
|
|
$
|
(23,375
|
)
|
|
|
As of
|
||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Deferred tax assets:
|
|
|
|
|
||||
Net operating loss carryforwards
|
|
$
|
118,738
|
|
|
$
|
68,080
|
|
Research and development credit and California manufacturing credit carryforwards
|
|
11,372
|
|
|
10,413
|
|
||
Reserves and accruals
|
|
114,125
|
|
|
64,482
|
|
||
Synthetic debt
|
|
31,921
|
|
|
60,772
|
|
||
Stock-based compensation stock deductions
|
|
13,147
|
|
|
10,320
|
|
||
Total deferred tax asset
|
|
289,303
|
|
|
214,067
|
|
||
Valuation allowance
|
|
(182,322
|
)
|
|
(129,946
|
)
|
||
Total deferred tax asset, net of valuation allowance
|
|
106,981
|
|
|
84,121
|
|
||
Deferred tax liabilities:
|
|
|
|
|
||||
Foreign currency derivatives unrealized gains
|
|
42
|
|
|
(1,971
|
)
|
||
Other intangible assets and accruals
|
|
(32,464
|
)
|
|
(52,938
|
)
|
||
Equity interest in Woongjin Energy
|
|
—
|
|
|
(8,830
|
)
|
||
Fixed asset basis difference
|
|
(67,473
|
)
|
|
(20,442
|
)
|
||
Total deferred tax liabilities
|
|
(99,895
|
)
|
|
(84,181
|
)
|
||
Net deferred tax liability
|
|
$
|
7,086
|
|
|
$
|
(60
|
)
|
|
|
Year Ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Balance, beginning of year
|
|
$
|
33,565
|
|
|
$
|
23,649
|
|
|
$
|
13,660
|
|
Additions for tax positions related to the current year
|
|
708
|
|
|
2,535
|
|
|
5,319
|
|
|||
Additions for tax positions from prior years
|
|
32,493
|
|
|
7,381
|
|
|
5,092
|
|
|||
Reductions for tax positions from prior years/statute of limitations expirations
|
|
(2,684
|
)
|
|
—
|
|
|
(422
|
)
|
|||
Foreign exchange (gain) loss
|
|
(1,150
|
)
|
|
—
|
|
|
—
|
|
|||
Balance at the end of the period
|
|
$
|
62,932
|
|
|
$
|
33,565
|
|
|
$
|
23,649
|
|
•
|
commencement, continuation or completion of examinations of the Company’s tax returns by the U.S. or foreign taxing authorities; and
|
•
|
expiration of statutes of limitation on the Company’s tax returns.
|
(In thousands, except share data)
|
|
December 30, 2012
|
|
January 1, 2012
|
||||
Common stock, $0.001 par value, 367,500,000 shares authorized; 123,315,990 shares issued, and 119,234,280 outstanding as of December 30, 2012; 101,851,290 shares issued, and 100,475,533 shares outstanding as of January 1, 2012
|
|
$
|
119
|
|
|
$
|
100
|
|
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
||
Equity compensation plans
|
|
3,566
|
|
|
3,293
|
|
|
|
Year ended
|
||||||||||
(In thousands, except per share amounts)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Basic net income (loss) per share:
|
|
|
|
|
|
|
||||||
Numerator
|
|
|
|
|
|
|
||||||
Income (loss) from continuing operations
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
166,883
|
|
Less: undistributed earnings allocated to unvested restricted stock awards (1)
|
|
—
|
|
|
—
|
|
|
(258
|
)
|
|||
Income (loss) from continuing operations available to common stockholders
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
166,625
|
|
|
|
|
|
|
|
|
||||||
Denominator
|
|
|
|
|
|
|
||||||
Basic weighted-average common shares
|
|
117,093
|
|
|
97,724
|
|
|
95,660
|
|
|||
|
|
|
|
|
|
|
||||||
Basic net income (loss) per share from continuing operations
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.74
|
|
Basic net income (loss) per share from discontinued operations
|
|
—
|
|
|
—
|
|
|
0.13
|
|
|||
Basic net income (loss) per share
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.87
|
|
|
|
|
|
|
|
|
||||||
Diluted net income (loss) per share:
|
|
|
|
|
|
|
||||||
Numerator
|
|
|
|
|
|
|
||||||
Income (loss) from continuing operations
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
166,883
|
|
Add: Interest expense incurred on 4.75% debentures, net of tax
|
|
—
|
|
|
—
|
|
|
6,664
|
|
|||
Less: undistributed earnings allocated to unvested restricted stock awards (1)
|
|
—
|
|
|
—
|
|
|
(242
|
)
|
|||
Income (loss) from continuing operations available to common stockholders
|
|
$
|
(352,020
|
)
|
|
$
|
(613,737
|
)
|
|
$
|
173,305
|
|
|
|
|
|
|
|
|
||||||
Denominator
|
|
|
|
|
|
|
||||||
Basic weighted-average common shares
|
|
117,093
|
|
|
97,724
|
|
|
95,660
|
|
|||
Effect of dilutive securities:
|
|
|
|
|
|
|
||||||
Stock options
|
|
—
|
|
|
—
|
|
|
990
|
|
|||
Restricted stock units
|
|
—
|
|
|
—
|
|
|
336
|
|
|||
4.75% debentures
|
|
—
|
|
|
—
|
|
|
8,712
|
|
|||
Diluted weighted-average common shares
|
|
117,093
|
|
|
97,724
|
|
|
105,698
|
|
|||
|
|
|
|
|
|
|
||||||
Diluted net income (loss) per share from continuing operations
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.64
|
|
Diluted net income (loss) per share from discontinued operations
|
|
—
|
|
|
—
|
|
|
0.11
|
|
|||
Diluted net income (loss) per share
|
|
$
|
(3.01
|
)
|
|
$
|
(6.28
|
)
|
|
$
|
1.75
|
|
(1)
|
Losses are not allocated to unvested restricted stock awards because such awards do not contain an obligation to participate in losses.
|
|
|
As of
|
|||||||
(In thousands)
|
|
December 30, 2012 (1)
|
|
January 1, 2012 (1)
|
|
January 2, 2011
|
|||
Stock options
|
|
320
|
|
|
425
|
|
|
309
|
|
Restricted stock units
|
|
4,435
|
|
|
4,943
|
|
|
2,803
|
|
Warrants (under the CSO2015)
|
|
*
|
|
|
*
|
|
|
*
|
|
Upfront Warrants (held by Total)
|
|
**
|
|
|
n/a
|
|
|
n/a
|
|
4.75% debentures
|
|
8,712
|
|
|
8,712
|
|
|
***
|
|
1.25% debentures
|
|
n/a
|
|
|
*
|
|
|
*
|
|
0.75% debentures
|
|
*
|
|
|
*
|
|
|
*
|
|
(1)
|
As a result of the net loss per share for the years ended
December 30, 2012
and
January 1, 2012
, the inclusion of all potentially dilutive stock options, restricted stock units, and common shares under the 4.75% debentures would be anti-dilutive. Therefore, those stock options, restricted stock units and shares were excluded from the computation of the weighted-average shares for diluted net loss per share for such period.
|
*
|
The Company's average stock price during fiscal 2012, 2011 and 2010 did not exceed the conversion price for the amended warrants (under the CSO2015), 1.25% debentures and 0.75% debentures and those instruments were thus non-dilutive in such periods.
|
**
|
The Upfront Warrants were issued in the first quarter of fiscal 2012. The Company's stock price as of the last business day in fiscal 2012 did not exceed the exercise price of the Upfront Warrants.
|
***
|
In fiscal 2010, the 4.75% debentures were dilutive under the if-converted method.
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Cost of Americas revenue
|
|
$
|
6,181
|
|
|
$
|
5,974
|
|
|
$
|
4,415
|
|
Cost of EMEA revenue
|
|
3,851
|
|
|
6,183
|
|
|
10,074
|
|
|||
Cost of APAC revenue
|
|
1,578
|
|
|
1,030
|
|
|
1,240
|
|
|||
Research and development
|
|
5,005
|
|
|
6,166
|
|
|
7,555
|
|
|||
Sales, general and administrative
|
|
25,824
|
|
|
25,772
|
|
|
31,088
|
|
|||
Restructuring charges
|
|
—
|
|
|
1,611
|
|
|
—
|
|
|||
Total stock-based compensation expense
|
|
$
|
42,439
|
|
|
$
|
46,736
|
|
|
$
|
54,372
|
|
|
|
Year ended
|
||||||||||
(In thousands)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Employee stock options
|
|
$
|
649
|
|
|
$
|
1,658
|
|
|
$
|
1,960
|
|
Restricted stock awards and units
|
|
40,996
|
|
|
45,223
|
|
|
52,481
|
|
|||
Change in stock-based compensation capitalized in inventory
|
|
794
|
|
|
(145
|
)
|
|
(69
|
)
|
|||
Total stock-based compensation expense
|
|
$
|
42,439
|
|
|
$
|
46,736
|
|
|
$
|
54,372
|
|
|
|
Outstanding Stock Options
|
|||||||||||
|
|
Shares
(in thousands)
|
|
Weighted-Average
Exercise Price
Per Share
|
|
Weighted-Average
Remaining Contractual
Term (in years)
|
|
Aggregate
Intrinsic Value
(in thousands)
|
|||||
Outstanding as of January 3, 2010
|
|
1,899
|
|
|
$
|
10.62
|
|
|
|
|
|
|
|
Exercised
|
|
(303
|
)
|
|
2.86
|
|
|
|
|
|
|
||
Forfeited
|
|
(101
|
)
|
|
17.76
|
|
|
|
|
|
|
||
Outstanding as of January 2, 2011
|
|
1,495
|
|
|
11.71
|
|
|
|
|
|
|
||
Exercised
|
|
(993
|
)
|
|
4.09
|
|
|
|
|
|
|||
Forfeited
|
|
(18
|
)
|
|
30.53
|
|
|
|
|
|
|||
Outstanding as of January 1, 2012
|
|
484
|
|
|
26.62
|
|
|
|
|
|
|||
Exercised
|
|
(20
|
)
|
|
2.59
|
|
|
|
|
|
|||
Forfeited
|
|
(70
|
)
|
|
24.17
|
|
|
|
|
|
|||
Outstanding and exercisable as of December 30, 2012
|
|
394
|
|
|
$
|
28.27
|
|
|
3.51
|
|
$
|
310
|
|
|
|
Stock Options
|
|
Restricted Stock Awards and Units
|
||||||||||
|
|
Shares
(in thousands)
|
|
Weighted-Average
Exercise Price
Per Share
|
|
Shares
(in thousands)
|
|
Weighted-Average
Grant Date Fair
Value Per Share (1)
|
||||||
Outstanding as of January 3, 2010
|
|
343
|
|
|
$
|
28.52
|
|
|
2,736
|
|
|
$
|
40.33
|
|
Granted
|
|
—
|
|
|
—
|
|
|
5,251
|
|
|
13.43
|
|
||
Vested (2)
|
|
(131
|
)
|
|
23.05
|
|
|
(734
|
)
|
|
33.53
|
|
||
Forfeited
|
|
(101
|
)
|
|
17.76
|
|
|
(1,141
|
)
|
|
38.60
|
|
||
Outstanding as of January 2, 2011
|
|
111
|
|
|
44.85
|
|
|
6,112
|
|
|
18.36
|
|
||
Granted
|
|
—
|
|
|
—
|
|
|
5,349
|
|
|
11.79
|
|
||
Vested (2)
|
|
(50
|
)
|
|
47.09
|
|
|
(2,255
|
)
|
|
22.32
|
|
||
Forfeited
|
|
(18
|
)
|
|
30.53
|
|
|
(1,836
|
)
|
|
14.86
|
|
||
Outstanding as of January 1, 2012
|
|
43
|
|
|
48.33
|
|
|
7,370
|
|
|
13.25
|
|
||
Granted
|
|
—
|
|
|
—
|
|
|
5,638
|
|
|
5.93
|
|
||
Vested (2)
|
|
(30
|
)
|
|
57.79
|
|
|
(2,844
|
)
|
|
13.94
|
|
||
Forfeited
|
|
(13
|
)
|
|
24.72
|
|
|
(1,588
|
)
|
|
11.52
|
|
||
Outstanding as of December 30, 2012
|
|
—
|
|
|
$
|
—
|
|
|
8,576
|
|
|
$
|
8.53
|
|
(1)
|
The Company estimates the fair value of its restricted stock awards and units at its stock price on the grant date.
|
(2)
|
Restricted stock awards and units vested include shares withheld on behalf of employees to satisfy the minimum statutory tax withholding requirements.
|
|
|
Year ended
|
||||||||||
(In thousands):
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Revenue
|
|
|
|
|
|
|
||||||
Americas
|
|
$
|
1,696,348
|
|
|
$
|
1,266,347
|
|
|
$
|
632,053
|
|
EMEA
|
|
489,484
|
|
|
924,337
|
|
|
1,526,480
|
|
|||
APAC
|
|
231,669
|
|
|
183,692
|
|
|
60,697
|
|
|||
Total Revenue
|
|
2,417,501
|
|
|
2,374,376
|
|
|
2,219,230
|
|
|||
Cost of revenue
|
|
|
|
|
|
|
||||||
Americas
|
|
1,415,417
|
|
|
1,131,771
|
|
|
502,780
|
|
|||
EMEA
|
|
559,993
|
|
|
868,330
|
|
|
1,159,115
|
|
|||
APAC
|
|
195,693
|
|
|
148,057
|
|
|
47,442
|
|
|||
Total cost of revenue
|
|
2,171,103
|
|
|
2,148,158
|
|
|
1,709,337
|
|
|||
Gross margin
|
|
$
|
246,398
|
|
|
$
|
226,218
|
|
|
$
|
509,893
|
|
|
|
Year ended
|
||||||||||
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Revenue by region (in thousands):
|
|
|
|
|
|
|
||||||
Americas (as reviewed by CODM)
|
|
$
|
1,901,159
|
|
|
$
|
1,452,770
|
|
|
$
|
632,053
|
|
Utility and power plant projects
|
|
(204,811
|
)
|
|
(186,423
|
)
|
|
—
|
|
|||
Americas
|
|
$
|
1,696,348
|
|
|
$
|
1,266,347
|
|
|
$
|
632,053
|
|
|
|
|
|
|
|
|
||||||
EMEA (as reviewed by CODM)
|
|
$
|
489,291
|
|
|
$
|
923,688
|
|
|
$
|
1,537,561
|
|
Change in European government incentives
|
|
193
|
|
|
649
|
|
|
—
|
|
|||
Revenue earned from discontinued operations
|
|
—
|
|
|
—
|
|
|
(11,081
|
)
|
|||
EMEA
|
|
$
|
489,484
|
|
|
$
|
924,337
|
|
|
$
|
1,526,480
|
|
|
|
|
|
|
|
|
||||||
APAC
|
|
$
|
231,669
|
|
|
$
|
183,692
|
|
|
$
|
60,697
|
|
|
|
Year ended
|
||||||||||
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Cost of revenue by region (in thousands):
|
|
|
|
|
|
|
|
|||||
Americas (as reviewed by CODM)
|
|
$
|
1,486,554
|
|
|
$
|
1,250,471
|
|
|
$
|
487,050
|
|
Utility and power plant projects
|
|
(97,648
|
)
|
|
(147,037
|
)
|
|
—
|
|
|||
Amortization of intangible assets
|
|
167
|
|
|
404
|
|
|
9,513
|
|
|||
Stock-based compensation expense
|
|
6,181
|
|
|
5,974
|
|
|
4,415
|
|
|||
Acquisition and integration costs
|
|
14
|
|
|
—
|
|
|
—
|
|
|||
Change in European government incentives
|
|
4,029
|
|
|
20,765
|
|
|
—
|
|
|||
Charges on manufacturing step reduction program
|
|
8,095
|
|
|
—
|
|
|
—
|
|
|||
Non-recurring idle equipment impairment
|
|
7,001
|
|
|
—
|
|
|
—
|
|
|||
Non-cash interest expense
|
|
1,024
|
|
|
1,194
|
|
|
1,802
|
|
|||
Americas
|
|
$
|
1,415,417
|
|
|
$
|
1,131,771
|
|
|
$
|
502,780
|
|
|
|
|
|
|
|
|
||||||
EMEA (as reviewed by CODM)
|
|
$
|
543,823
|
|
|
$
|
827,858
|
|
|
$
|
1,143,543
|
|
Amortization of intangible assets
|
|
2,341
|
|
|
858
|
|
|
759
|
|
|||
Stock-based compensation expense
|
|
3,851
|
|
|
6,183
|
|
|
10,074
|
|
|||
Acquisition and integration costs
|
|
6
|
|
|
—
|
|
|
—
|
|
|||
Change in European government incentives
|
|
3,364
|
|
|
32,283
|
|
|
—
|
|
|||
Charges on manufacturing step reduction program
|
|
3,667
|
|
|
—
|
|
|
—
|
|
|||
Non-recurring idle equipment impairment
|
|
2,415
|
|
|
—
|
|
|
—
|
|
|||
Non-cash interest expense
|
|
526
|
|
|
1,148
|
|
|
4,739
|
|
|||
EMEA
|
|
$
|
559,993
|
|
|
$
|
868,330
|
|
|
$
|
1,159,115
|
|
|
|
|
|
|
|
|
||||||
APAC (as reviewed by CODM)
|
|
$
|
187,748
|
|
|
$
|
144,138
|
|
|
$
|
45,703
|
|
Amortization of intangible assets
|
|
—
|
|
|
—
|
|
|
134
|
|
|||
Stock-based compensation expense
|
|
1,578
|
|
|
1,030
|
|
|
1,239
|
|
|||
Acquisition and integration costs
|
|
2
|
|
|
—
|
|
|
—
|
|
|||
Change in European government incentives
|
|
1,476
|
|
|
2,667
|
|
|
—
|
|
|||
Charges on manufacturing step reduction program
|
|
2,150
|
|
|
—
|
|
|
—
|
|
|||
Non-recurring idle equipment impairment
|
|
2,447
|
|
|
—
|
|
|
—
|
|
|||
Non-cash interest expense
|
|
292
|
|
|
222
|
|
|
366
|
|
|||
APAC
|
|
$
|
195,693
|
|
|
$
|
148,057
|
|
|
$
|
47,442
|
|
|
|
Year ended
|
|||||||
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
|||
Gross margin by region:
|
|
|
|
|
|
|
|
||
Americas (as reviewed by CODM)
|
|
22
|
%
|
|
14
|
%
|
|
23
|
%
|
EMEA (as reviewed by CODM)
|
|
(11
|
)%
|
|
10
|
%
|
|
26
|
%
|
APAC (as reviewed by CODM)
|
|
19
|
%
|
|
22
|
%
|
|
25
|
%
|
Americas
|
|
17
|
%
|
|
11
|
%
|
|
20
|
%
|
EMEA
|
|
(14
|
)%
|
|
6
|
%
|
|
24
|
%
|
APAC
|
|
16
|
%
|
|
19
|
%
|
|
22
|
%
|
|
|
Year ended
|
||||||||||
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
||||||
Depreciation by region (in thousands):
|
|
|
|
|
|
|
|
|||||
Americas
|
|
$
|
59,120
|
|
|
$
|
50,352
|
|
|
$
|
28,362
|
|
EMEA
|
|
33,047
|
|
|
47,896
|
|
|
66,568
|
|
|||
APAC
|
|
16,489
|
|
|
8,852
|
|
|
7,262
|
|
|
|
|
Year ended
|
||||||
(As a percentage of total revenue)
|
|
December 30, 2012
|
|
January 1, 2012
|
|
January 2, 2011
|
|||
Significant Customers:
|
Business Segment
|
|
|
|
|
|
|
||
NRG Solar, Inc.
|
Americas
|
|
35
|
%
|
|
*
|
|
*
|
|
Customer B
|
EMEA
|
|
*
|
|
|
*
|
|
12
|
%
|
|
(In thousands, except per share data)
|
|
Three Months Ended
|
||||||||||||||
|
|
December 30, 2012
|
|
September 30, 2012
|
|
July 1, 2012
|
|
April 1, 2012
|
||||||||
Fiscal 2012:
|
|
|
|
|
|
|
|
|
||||||||
Revenue
|
|
$
|
678,525
|
|
|
$
|
648,948
|
|
|
$
|
595,897
|
|
|
$
|
494,131
|
|
Gross margin
|
|
46,877
|
|
|
80,773
|
|
|
73,500
|
|
|
45,248
|
|
||||
Net loss
|
|
(144,771
|
)
|
|
(48,538
|
)
|
|
(84,181
|
)
|
|
(74,530
|
)
|
||||
Net loss per share of common stock:
|
|
|
|
|
|
|
|
|
||||||||
Basic and diluted
|
|
$
|
(1.22
|
)
|
|
$
|
(0.41
|
)
|
|
$
|
(0.71
|
)
|
|
$
|
(0.67
|
)
|
(In thousands, except per share data)
|
|
Three Months Ended
|
||||||||||||||
|
|
January 1, 2012 (1)
|
|
October 2, 2011
|
|
July 3, 2011
|
|
April 3, 2011
|
||||||||
Fiscal 2011:
|
|
|
|
|
|
|
|
|
||||||||
Revenue
|
|
$
|
625,276
|
|
|
$
|
705,427
|
|
|
$
|
592,255
|
|
|
$
|
451,418
|
|
Gross margin
|
|
42,278
|
|
|
76,124
|
|
|
19,294
|
|
|
88,522
|
|
||||
Net loss
|
|
(92,960
|
)
|
|
(370,784
|
)
|
|
(147,872
|
)
|
|
(2,121
|
)
|
||||
Net loss per share of common stock:
|
|
|
|
|
|
|
|
|
||||||||
Basic and diluted
|
|
$
|
(0.94
|
)
|
|
$
|
(3.77
|
)
|
|
$
|
(1.51
|
)
|
|
$
|
(0.02
|
)
|
(1)
|
As adjusted to reflect the balances of Tenesol S.A. ("Tenesol") beginning October 10, 2011, as required under the accounting guidelines for a transfer of an entity under common control (see Note 3).
|
|
Page
|
Reports of Ernst & Young LLP, Independent Registered Public Accounting Firm
|
|
Report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm
|
|
Consolidated Balance Sheets
|
|
Consolidated Statements of Operations
|
|
Consolidated Statements of Comprehensive Income (Loss)
|
|
Consolidated Statements of Stockholders’ Equity
|
|
Consolidated Statements of Cash Flows
|
|
Notes to Consolidated Financial Statements
|
4.7
|
|
Seventh Supplemental Indenture, dated November 16, 2011, by and between SunPower Corporation and Wells Fargo Bank, National Association as Trustee (incorporated by reference to Exhibit 4.3 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on November 16, 2011).
|
4.8
|
|
Eighth Supplemental Indenture, dated November 16, 2011, by and between SunPower Corporation and Wells Fargo Bank, National Association as Trustee (incorporated by reference to Exhibit 4.4 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on November 16, 2011).
|
4.9
|
|
Amended and Restated Rights Agreement, dated November 16, 2011, by and between SunPower Corporation and Computershare Trust Company, N.A., as Rights Agent, including the form of Certificate of Designation of Series A Junior Participating Preferred Stock, the forms of Right Certificates, and the Summary of Rights attached thereto as Exhibits A, B, and C, respectively (incorporated by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form 8-A filed with the Securities and Exchange Commission on November 16, 2011).
|
4.10
|
|
Certificate of Designation of Series A Junior Participating Preferred Stock of SunPower Corporation (incorporated by reference to Exhibit 4.6 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on November 16, 2011).
|
4.11
|
|
Amendment No. 1, dated May 10, 2012, to the Amended and Restated Rights Agreement, dated as of November 16, 2011, by and between the SunPower Corporation and Computershare Trust Company, N.A., as rights agent (incorporated by reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on May 10, 2012).
|
10.1
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Wachovia Bank, National Association (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.2
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.3
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.4
|
|
Convertible Debenture Hedge Transaction Confirmation, dated March 25, 2010, by and between SunPower Corporation and Bank of America, N.A. (incorporated by reference to Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2010).
|
10.5
|
|
Convertible Debenture Hedge Transaction Confirmation, dated March 25, 2010, by and between SunPower Corporation and Barclays Bank PLC (incorporated by reference to Exhibit 10.3 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2010).
|
10.6
|
|
Convertible Debenture Hedge Transaction Confirmation, dated March 25, 2010, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.4 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2010).
|
10.7
|
|
Convertible Debenture Hedge Transaction Confirmation, dated March 25, 2010, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.5 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2010).
|
10.8
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 5, 2010, by and between SunPower Corporation and Bank of America, N.A. (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 9, 2010).
|
10.9
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 5, 2010, by and between SunPower Corporation and Barclays Bank PLC (incorporated by reference to Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 9, 2010).
|
10.10
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 5, 2010, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.3 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 9, 2010).
|
10.11
|
|
Convertible Debenture Hedge Transaction Confirmation, dated April 5, 2010, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.4 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 9, 2010).
|
10.12
|
|
Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Wachovia Bank, National Association (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.13
|
|
Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.14
|
|
Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K filed by SunPower Corporation on April 30, 2009).
|
10.15
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Bank of America, N.A. (incorporated by reference to Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.16
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Barclays Bank PLC (incorporated by reference to Exhibit 10.3 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.17
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.4 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.18
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.19
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Bank of America, N.A. (incorporated by reference to Exhibit 10.6 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.20
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Barclays Bank PLC (incorporated by reference to Exhibit 10.7 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.21
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.8 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.22
|
|
Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Deutsche Bank AG, London Branch (incorporated by reference to Exhibit 10.5 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2010).
|
10.23†
|
|
Warrant Adjustment Notice, dated August 26, 2011, from Wachovia Bank, National Association, regarding Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Wachovia Bank, National Association (incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.24
|
|
Warrant Adjustment Notice, dated August 30, 2011, from Deutsche Bank AG, London Branch, regarding (1) Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Deutsche Bank AG, London Branch; (2) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Deutsche Bank AG, London Branch; and (3) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Deutsche Bank AG, London (incorporated by reference to Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.25†
|
|
Warrant Adjustment Notice, dated August 31, 2011, from Credit Suisse International, regarding (1) Warrant Transaction Confirmation, dated April 28, 2009, by and between SunPower Corporation and Credit Suisse International; (2) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Credit Suisse International; and (3) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Credit Suisse International (incorporated by reference to Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.26
|
|
Warrant Adjustment Notice, dated September 21, 2011, from Bank of America, N.A., regarding (1) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Bank of America, N.A.; and (2) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Bank of America, N.A. (incorporated by reference to Exhibit 10.7 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.27
|
|
Warrant Adjustment Notice, dated September 21, 2011, from Barclays Bank PLC, regarding (1) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Barclays Bank PLC; and (2) Warrant Transaction Confirmation, dated December 22, 2010, by and between SunPower Corporation and Barclays Bank PLC (incorporated by reference to Exhibit 10.8 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.28
|
|
Tender Offer Agreement, dated April 28, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 99.2 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.29
|
|
Amendment to Tender Offer Agreement, dated June 7, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 2.1 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 7, 2011).
|
10.30
|
|
Tender Offer Agreement Guaranty, dated April 28, 2011, between SunPower Corporation and Total S.A. (incorporated by reference to Exhibit 99.4 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.31
|
|
Credit Support Agreement, dated April 28, 2011, between SunPower Corporation and Total S.A. (incorporated by reference to Exhibit 99.5 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.32
|
|
Amendment to Credit Support Agreement, dated June 7, 2011, between SunPower Corporation and Total S.A. (incorporated by reference to Exhibit 10.1 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 7, 2011).
|
10.33
|
|
Second Amendment to Credit Support Agreement, dated December 12, 2011, by and between Total S.A. and SunPower Corporation (incorporated by reference to Exhibit 10.3 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2011).
|
10.34
|
|
Third Amendment to Credit Support Agreement, dated December 14, 2012, by and between SunPower Corporation and Total S.A.
|
10.35
|
|
Affiliation Agreement, dated April 28, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 99.6 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.36
|
|
Amendment to Affiliation Agreement, dated June 7, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 10.2 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 7, 2011).
|
10.37
|
|
Second Amendment to Affiliation Agreement, dated December 23, 2011, by and between Total G&P and SunPower Corporation (incorporated by reference to Exhibit 10.4 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2011).
|
10.38
|
|
Amendment No. 3 to Affiliation Agreement, dated February 28, 2012, by and between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 10.91 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 29, 2012).
|
10.39
|
|
Amendment No. 4 to Affiliation Agreement, dated August 10, 2012, by and between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 10.2 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 2, 2012).
|
10.40
|
|
Affiliation Agreement Guaranty, dated April 28, 2011, between SunPower Corporation and Total S.A. (incorporated by reference to Exhibit 99.7 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.41
|
|
Research & Collaboration Agreement, dated April 28, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 99.8 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.42
|
|
Amendment to Research & Collaboration Agreement, dated June 7, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 10.3 of Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 7, 2011).
|
10.43
|
|
Registration Rights Agreement, dated April 28, 2011, between SunPower Corporation and Total Gas & Power USA, SAS (incorporated by reference to Exhibit 99.9 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 12, 2011).
|
10.44
|
|
Private Placement Agreement, dated December 23, 2011, by and between Total Gas & Power USA, SAS and SunPower Corporation (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2011).
|
10.45
|
|
Master Agreement, dated December 23, 2011, by and among SunPower Corporation, Total Gas & Power USA, SAS, and Total S.A. (incorporated by reference to Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2011).
|
10.46^
|
|
SunPower Corporation 1996 Stock Plan and form of agreements there under (incorporated by reference to Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 25, 2005).
|
10.47^
|
|
SunPower Corporation 2005 Stock Unit Plan (incorporated by reference to Exhibit 10.28 to the Registrant’s Registration Statement on Form S-1/A filed with the Securities and Exchange Commission on October 31, 2005).
|
10.48^
|
|
Third Amended and Restated SunPower Corporation 2005 Stock Incentive Plan and forms of agreements there under (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on November 17, 2011).
|
10.49^
|
|
PowerLight Corporation Common Stock Option and Common Stock Purchase Plan (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on January 25, 2007).
|
10.50^
|
|
Form of PowerLight Corporation Incentive/Non-Qualified Stock Option, Market Standoff and Stock Restriction Agreement (Employees) (incorporated by reference to Exhibit 4.4 to the Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on January 25, 2007).
|
10.51^
|
|
Outside Director Compensation Policy, as amended on June 15, 2011 (incorporated by reference to Exhibit 10.17 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 9, 2011).
|
10.52^
|
|
Form of Employment Agreement for Executive Officers (incorporated by reference to Exhibit 10.16 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 19, 2010).
|
10.53^
|
|
SunPower Corporation Management Career Transition Plan (incorporated by reference to Exhibit 10.17 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 19, 2010).
|
10.54^*
|
|
SunPower Corporation Executive Quarterly Key Initiative Bonus Plan (amended and restated February 19, 2013).
|
10.55^
|
|
SunPower Corporation Annual Executive Bonus Plan (incorporated by reference to Exhibit 10.19 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 19, 2010).
|
10.56^
|
|
Form of Indemnification Agreement for Directors and Officers (incorporated by reference to Exhibit 10.55 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 29, 2012).
|
10.57^
|
|
Form of Retention Agreement, dated May 20, 2011, by and between SunPower Corporation and certain executive officers (incorporated by reference to Exhibit 10.13 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 9, 2011).
|
10.58^
|
|
Amended and Restated Employment Agreement, dated December 23, 2011, by and between SunPower Corporation and Dennis Arriola (incorporated by reference to Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 23, 2011).
|
10.59^
|
|
Amended and Restated Employment Agreement, dated October 27, 2011, by and between SunPower Corporation and Bruce Ledesma (incorporated by reference to Exhibit 10.58 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 29, 2012).
|
10.60†
|
|
Mortgage Loan Agreement, dated May 6, 2010, by and among SunPower Philippines Manufacturing Ltd., SPML Land, Inc. and International Finance Corporation (incorporated by reference to Exhibit 10.13 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 13, 2010).
|
10.61
|
|
Guarantee Agreement, dated May 6, 2010, by and between SunPower Corporation and International Finance Corporation (incorporated by reference to Exhibit 10.14 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 13, 2010).
|
10.62
|
|
Amendment No. 1 to Loan Agreement, dated November 2, 2010, by and between SunPower Philippines Manufacturing Ltd. and International Finance Corporation (incorporated by reference to Exhibit 10.42 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 28, 2011).
|
10.63*
|
|
Mortgage Supplement No. 1, dated November 3, 2010, by and between SunPower Philippines Manufacturing Ltd., SPML Land, Inc. and International Finance Corporation.
|
10.64*
|
|
Mortgage Supplement No. 2, dated October 9, 2012, by and between SunPower Philippines Manufacturing Ltd., SPML Land, Inc. and International Finance Corporation.
|
10.65
|
|
Loan Agreement, dated December 1, 2010, by and among California Enterprise Development Authority and SunPower Corporation, relating to $30,000,000 California Enterprise Development Authority Tax Exempt Recovery Zone Facility Revenue Bonds (SunPower Corporation - Headquarters Project) Series 2010 (incorporated by reference to Exhibit 10.50 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 28, 2011).
|
10.66
|
|
First Supplement to Loan Agreement, dated June 1, 2011, by and between California Enterprise Development Authority and SunPower Corporation, relating to $30,000,000 California Enterprise Development Authority Tax Exempt Recovery Zone Facility Revenue Bonds (SunPower Corporation - Headquarters Project) Series 2010 (incorporated by reference to Exhibit 10.16 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 9, 2011).
|
10.67†
|
|
Letter of Credit Facility Agreement, dated August 9, 2011, by and among SunPower Corporation, Total S.A., the Subsidiary Applicants party thereto, the Banks party thereto, and Deutsche Bank AG New York Branch (incorporated by reference to Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.68†
|
|
First Amendment to Letter of Credit Facility Agreement, dated December 20, 2011, by and among SunPower Corporation, Total S.A., the Subsidiary Applicants party thereto, the Banks party thereto, and Deutsche Bank AG New York Branch (incorporated by reference to Exhibit 10.65 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 29, 2012).
|
10.69*
|
|
Second Amendment to Letter of Credit Facility Agreement, dated December 19, 2012, by and among SunPower Corporation, Total S.A., the Subsidiary Applicants party thereto, the Banks party thereto, and Deutsche Bank AG New York Branch.
|
10.70
|
|
Revolving Credit Agreement, dated September 27, 2011, by and among SunPower Corporation, Credit Agricole Corporate and Investment Bank, and the financial institutions party thereto (incorporated by reference to Exhibit 10.9 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.71
|
|
First Amendment to Revolving Credit Agreement, dated December 21, 2011, by and among SunPower Corporation, Credit Agricole Corporate and Investment Bank, and the financial institutions party thereto(incorporated by reference to Exhibit 10.67 to the Registrant's Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 29, 2012).
|
10.72
|
|
Second Amendment to Revolving Credit Agreement, dated June 29, 2012, by and among SunPower Corporation and Credit Agricole Corporate and Investment Bank, as administrative agent for the Lenders (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 9, 2012).
|
10.73*
|
|
Third Amendment to Revolving Credit Agreement, dated December 24, 2012 by and among SunPower Corporation and Credit Agricole Corporate and Investment Bank, and the financial institutions party thereto.
|
10.74
|
|
Continuing Agreement for Standby Letters of Credit and Demand Guarantees, dated September 27, 2011, by and among SunPower Corporation, Deutsche Bank Trust Company Americas, and Deutsche Bank AG New York Branch (incorporated by reference to Exhibit 10.10 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.75
|
|
Security Agreement, dated September 27, 2011, by and among SunPower Corporation, Deutsche Bank Trust Company Americas, and Deutsche Bank AG New York Branch (incorporated by reference to Exhibit 10.11 to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2011).
|
10.76†
|
|
Joint Venture Agreement, dated May 27, 2010, by and among SunPower Technology, Ltd., AU Optronics Singapore Pte. Ltd., AU Optronics Corporation and AUO SunPower Sdn. Bhd. (formerly known as SunPower Malaysia Manufacturing Sdn. Bhd.) (incorporated by reference to Exhibit 10.15 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 13, 2010).
|
10.77
|
|
Amendment No. 1 to Joint Venture Agreement, dated June 29, 2010, by and among SunPower Technology, Ltd., AU Optronics Singapore Pte. Ltd., AU Optronics Corporation and AUO SunPower Sdn. Bhd. (formerly known as SunPower Malaysia Manufacturing Sdn. Bhd.) (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 12, 2010).
|
10.78
|
|
Amendment No. 2 to Joint Venture Agreement, dated July 5, 2010, by and among SunPower Technology, Ltd., AU Optronics Singapore Pte. Ltd., AU Optronics Corporation and AUO SunPower Sdn. Bhd. (formerly known as SunPower Malaysia Manufacturing Sdn. Bhd.) (incorporated by reference to Exhibit 10.2 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 12, 2010.
|
10.79†
|
|
Supply Agreement, dated July 5, 2010, by and among AUO SunPower Sdn. Bhd. (formerly known as SunPower Malaysia Manufacturing Sdn. Bhd.), SunPower Systems, Sarl and AU Optronics Singapore Pte. Ltd. (incorporated by reference to Exhibit 10.3 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 12, 2010).
|
10.80
|
|
License and Technology Agreement, dated July 5, 2010, by and among SunPower Technology, Ltd., AU Optronics Singapore Pte. Ltd. and AUO SunPower Sdn. Bhd. (formerly known as SunPower Malaysia Manufacturing Sdn. Bhd.) (incorporated by reference to Exhibit 10.4 to the Registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 12, 2010).
|
31.2*
|
|
Certification by Chief Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a).
|
32.1*
|
|
Certification Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
101.INS*+
|
|
XBRL Instance Document.
|
101.SCH*+
|
|
XBRL Taxonomy Schema Document.
|
101.CAL*+
|
|
XBRL Taxonomy Calculation Linkbase Document.
|
101.LAB*+
|
|
XBRL Taxonomy Label Linkbase Document.
|
101.PRE*+
|
|
XBRL Taxonomy Presentation Linkbase Document.
|
101.DEF*+
|
|
XBRL Taxonomy Definition Linkbase Document.
|
|
SUNPOWER CORPORATION
|
|
|
|
|
Dated: February 22, 2013
|
By:
|
/s/ CHARLES D. BOYNTON
|
|
|
|
|
|
Charles D. Boynton
|
|
|
Executive Vice President and
|
|
|
Chief Financial Officer
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/S/ THOMAS H. WERNER
|
|
President, Chief Executive Officer and Director
|
|
February 22, 2013
|
Thomas H. Werner
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/S/ CHARLES D. BOYNTON
|
|
Executive Vice President and
Chief Financial Officer
|
|
February 22, 2013
|
Charles D. Boynton
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
/S/ ERIC BRANDERIZ
|
|
Senior Vice President, Corporate Controller and Principal Accounting Officer
|
|
February 22, 2013
|
Eric Branderiz
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Arnaud Chaperon
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Bernard Clement
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Denis Giorno
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Thomas R. McDaniel
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Jerome Schmitt
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Humbert de Wendel
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
February 22, 2013
|
Patrick Wood III
|
|
|
|
|
Exhibit Number
|
|
Description
|
10.34*
|
|
Third Amendment to Credit Support Agreement, dated December 14, 2012, by and between SunPower Corporation and Total S.A.
|
10.54^*
|
|
SunPower Corporation Executive Quarterly Key Initiative Bonus Plan (amended and restated February 19, 2013).
|
10.63*
|
|
Mortgage Supplement No. 1, dated November 3, 2010, by and between SunPower Philippines Manufacturing Ltd., SPML Land, Inc. and International Finance Corporation.
|
10.64*
|
|
Mortgage Supplement No. 2, dated October 9, 2012, by and between SunPower Philippines Manufacturing Ltd., SPML Land, Inc. and International Finance Corporation.
|
10.69*
|
|
Second Amendment to Letter of Credit Facility Agreement, dated December 19, 2012, by and among SunPower Corporation, Total S.A., the Subsidiary Applicants party thereto, the Banks party thereto, and Deutsche Bank AG New York Branch.
|
10.73*
|
|
Third Amendment to Revolving Credit Agreement, dated December 24, 2012, by and among SunPower Corporation and Credit Agricole Corporate and Investment Bank, and the financial institutions party thereto.
|
10.94*
|
|
Waiver Letter, dated October 3, 2012, from the International Finance Corporation
|
10.96*†
|
|
Engineering, Procurement and Construction Agreement (Antelope Valley Solar Project 308.97MW at the Delivery Point), dated December 28, 2012, by and between SunPower Corporation, Systems and Solar Star California XIX, LLC.
|
10.97*†
|
|
Engineering, Procurement and Construction Agreement (Antelope Valley Solar Project 270.18 MW at the Delivery Point), dated December 28, 2012, by and between SunPower Corporation, Systems and Solar Star California XX, LLC.
|
10.98*
|
|
Amendment No. 1 to Master Agreement, dated February 20, 2013, by and among SunPower Corporation, Total Gas & Power U.S.A. SAS and Total S.A.
|
21.1*
|
|
List of Subsidiaries.
|
23.1*
|
|
Consent of Independent Registered Public Accounting Firm.
|
23.2*
|
|
Consent of Independent Registered Public Accounting Firm.
|
24.1*
|
|
Power of Attorney.
|
31.1*
|
|
Certification by Chief Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a).
|
31.2*
|
|
Certification by Chief Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a).
|
32.1*
|
|
Certification Furnished Pursuant to 18 U.S.C. Section 1350 as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
101.INS*+
|
|
XBRL Instance Document.
|
101.SCH*+
|
|
XBRL Taxonomy Schema Document.
|
101.CAL*+
|
|
XBRL Taxonomy Calculation Linkbase Document.
|
101.LAB*+
|
|
XBRL Taxonomy Label Linkbase Document.
|
101.PRE*+
|
|
XBRL Taxonomy Presentation Linkbase Document.
|
101.DEF*+
|
|
XBRL Taxonomy Definition Linkbase Document.
|
SUNPOWER CORPORATION,
as the Company |
|||
By:
|
/s/ Thomas H. Werner
|
||
Name:
|
Thomas H. Werner
|
||
Title:
|
Chief Executive Officer
|
TOTAL S.A.,
as the Guarantor |
|||
By:
|
/s/ Patrick de la Chevardière
|
||
Name:
|
Patrick de la Chevadière
|
||
Title:
|
Chief Financial Officer
|
Article 1
|
- Executive KI Plan Objective
|
1.1
|
The objective of this Executive Quarterly Key Initiative Bonus Plan (“Executive KI Plan”) is to provide incentives to key employees of SunPower Corporation and its subsidiaries (collectively, the “Company”) based on the Company's profit before tax, quarterly company milestones and an individual's performance against set individual key initiatives (“KIs”). The Executive KI Plan shall be administered by the Compensation Committee appointed by the Board of Directors of SunPower Corporation.
|
Article 2
|
- Effective Date
|
2.1
|
This quarterly program will be effective as of January 1, 2013. “Plan Periods” under the Executive KI Plan will correspond to the fiscal quarters of the Company.
|
Article 3
|
- Eligibility for Executive KI Plan Participation
|
3.1
|
All executive officers of the Company, as well as any other key employees approved by the Compensation Committee of the Board of Directors, shall participate in the Executive KI Plan. Participation will generally be limited to the CEO and executive direct reports.
|
Article 4
|
- Target
Bonus Percentages and Calculations
|
4.1
|
Executive KI Target Bonus Percentages
. Each Executive KI Plan participant will be allocated a KI target bonus expressed as a percentage of his or her base salary. KI target bonus percentages are set by the Compensation Committee. The Compensation Committee may, in its discretion, set maximum caps on the payout amount for KI bonuses. The Compensation Committee may delegate establishing KI target bonus percentages to officers of the Company; provided that executive officer KI target bonus percentages must be approved by the Compensation Committee.
|
4.2
|
Executive KI Plan Components
.
|
(i)
|
Quarterly KI Score
. At the start of each quarter the participant will formulate with his or her supervisor a list of key initiatives for such quarter. Each initiative will be allocated a certain number of points, and the quarterly scorecard shall total 100 points. Following each quarter the participant's supervisor will score the participant's achievement of key initiatives (expressed as a percentage).
|
|
Page
1
of 5
|
Company Confidential
|
(ii)
|
Company Milestone Score
. With respect to each quarter the Board of Directors will establish quarterly company milestones for such quarter. Each company milestone will be allocated a certain number of points. Following each quarter, the executive officers of the Company will score the achievement of company milestones (expressed as a percentage).
|
(iii)
|
PBT Score
. At the start of the quarter the executive officers will establish an internal profit before tax financial target for the Company (“Target PBT”), including minimum and maximum PBT levels for the quarter. Following the quarter, the actual profit before tax will be determined (“Actual PBT”), including minimum and maximum PBT levels for the quarter. Following the quarter, the actual profit before tax will be determined (“Actual PBT”).
|
4.3
|
Quarterly bonuses under this Executive KI Plan are based on a combination of (a) the participant's number of points achieved on his or her key initiative scorecard for the quarter (expressed as a percentage), (b) the percentage of company milestones achieved for the quarter and (c) the Actual PBT for such quarter. In particular, the bonus payout is calculated as follows:
|
(i)
|
For each quarter:
|
a.
|
If the company milestone score is equal to or less than 60%, no KI bonus will be calculated for the quarter.
|
b.
|
If the company milestone score is greater than 60% and equal to or less than 80%, KI bonus for the quarter will be multiplied by a factor of 50%.
|
c.
|
If the company milestone score is greater than 80%, KI bonus for the quarter will be multiplied by a factor of 100%.
|
(ii)
|
The PBT factor is calculated as follows:
|
a.
|
If the Actual PBT is less than minimum performance level, no KI bonus payout will be made for that quarter.
|
b.
|
If the Actual PBT is equal to or greater than the minimum but less than the Target PBT, KI bonus will be paid if the milestone condition is met as set forth above.
|
c.
|
If the Actual PBT is between the Target PBT and the maximum performance level, and the milestone condition is met as set forth above is met, KI bonus will be multiplied by an adjustment factor between 100% and 125%, based on a straight-line proration between target and the maximum achievement. Note that adjustment factor will be above 100% only if Actual PBT result is greater than zero.
|
|
Page
2
of 5
|
Company Confidential
|
d.
|
When the quarterly KI bonus is prorated and paid above 100%, it is subject to a maximum cap of 125%. The Board reserves the right to reduce payments above 100% of target, should the sum of payments above target for all eligible employees become a material portion of the Actual PBT achieved by the Company.
|
Article 5
|
- Effect of Base Salary on Target Bonus Adjustments.
|
5.1
|
Payout calculations under the Executive KI Plan will be based on the plan participant's base salary at the end of the quarter being measured.
|
5.2
|
In the event a participant's KI target bonus percentage is changed during the quarter, the participant's KI payout for the quarter shall be based on the KI target bonus in effect at the end of that quarter.
|
Article 6
|
- KI Achievement
|
6.1
|
KI attainment for the completed quarter and proposed KI for the next quarter are reviewed at the end of each quarter no later than the third Friday of the first month of the quarter.
|
6.2
|
In setting KIs, a 0% threshold may be defined for each KI. This threshold, which could be timing and/or deliverable-based, is a point at which a KI score starts to be earned. If a participant does not reach/complete the minimum threshold, such KI will be scored 0% (zero). Progress beyond the threshold earns the participant a pro-rated score up to 110%. The score for a particular KI item cannot exceed 110%. Scoring greater than 100% for a KI item is usually limited to numeric or quantitative goals.
|
6.3
|
The Chief
Executive
Officer's quarterly KI score is the actual company milestone score for such quarter.
|
Article 7
|
- Eligibility for Payment
|
7.1
|
Employment
: To be eligible for any portion of the bonus payment, the participant must be employed by the Company at the scheduled payment date. A participant who terminates employment prior to the payment date will be ineligible for any and all bonuses not yet paid, except as otherwise provided in this article or any separate agreement approved by the Compensation Committee.
|
7.2
|
New Hires
: New Hires shall be eligible to participate in the bonus program starting the first complete month of work, i.e. if they start the first business day of the month, they will be eligible to participate that month; otherwise, they will begin participation the following month.
|
|
Page
3
of 5
|
Company Confidential
|
7.3
|
Disability
: If a participant is unable to perform the essential functions of his or her job with or without a reasonable accommodation and is eligible to receive disability benefits under the standards used by the Company's disability benefit plan, the participant will receive a bonus calculated as follows: the quarter in which the disability begins will be considered a completed quarter and the KI bonus for that quarter will be paid as though KI attainment was 100%. If/when the participant returns from disability leave, participation will be handled as outlined in section 7.2 above.
|
7.4
|
Retirement
: If a participant retires, i.e. permanent termination of employment with the Company in accordance with the Company's retirement policies, the participant will receive a bonus calculated as follows: the quarter in which the retirement begins will be considered a completed quarter and the KI bonus for that quarter will be paid as though KI attainment was 100%. Thereafter, quarterly participation ceases.
|
7.5
|
Death
: If a participant dies, awards will be paid to the beneficiary designated by the participant or, if no such designation has been made, to the persons entitled thereto as determined by a court of competent jurisdiction. The bonus will be calculated as follows: the quarter in which death occurred will be considered a completed quarter and the KI bonus for that quarter will be paid as though KI attainment was 100%. Thereafter, quarterly participation ceases.
|
7.6
|
Lay-off
: If a participant is terminated by lay-off during a Plan Period, the quarter in which the lay-off occurred will be considered a completed quarter and the KI bonus for that quarter will be paid as though KI attainment was 100%. Thereafter, quarterly participation ceases.
|
7.7
|
No bonus will be paid to employees who are terminated for cause.
|
7.8
|
All qualified bonus payments including future scheduled payments pursuant to Sections 7.3, 7.4, 7.5, and 7.6 will be paid in a lump sum.
|
7.9
|
The Chief Executive Officer reserves the right to reduce the bonus award of a participant on a pro-rata basis to reflect a participant's leave of absence during the applicable Plan Period.
|
Article 8
|
- Miscellaneous
|
8.1
|
Unless as defined in article 8.4, no right or interest in this Executive KI Plan is transferable or assignable except by will or laws of descent and distribution.
|
8.2
|
Participation in this Executive KI Plan does not guarantee any right to continued employment with the Company.
|
8.3
|
Participation in the Executive KI Plan in a particular Plan Period is not a guarantee to participate in subsequent Plan Periods.
|
|
Page
4
of 5
|
Company Confidential
|
8.4
|
Management reserves the right to discontinue participation of any participant in this Executive KI Plan, at any time, and for whatever reasons.
|
8.5
|
This Executive KI Plan is unfunded and the Company does not intend to set up a sinking fund. Consequently, payments arising out of bonus earned shall be paid out of the Company's general assets. Accounts recognized by the Company for book purposes are not an indication of funds set aside for payment. Executive KI Plan participants are considered as general creditors of the Company and the obligation of the Company is purely contractual and is not secured by any particular Company asset.
|
8.6
|
The provision of this Executive KI Plan shall not limit the ability of the Compensation Committee (or its designees) to modify said Executive KI Plan, or adopt such other plans on matters of compensation, bonus or incentive, which in its own judgment it deems proper, at any time.
|
|
Page
5
of 5
|
Company Confidential
|
1.
|
Unless otherwise defined in this Mortgage Supplement, (i) capitalized terms shall have the meanings set forth in the Loan Agreement and the Mortgage Agreement unless the context otherwise requires, and (ii) the principles of construction set forth in the Loan Agreement and the Mortgage Agreement shall apply.
|
2.
|
The Mortgagors hereby confirm that (i) certain of the Assets identified and described as Future Real Assets
in the Mortgage Agreement have come into existence and/or have been acquired in ownership by a Mortgagor as of the date hereof (those certain assets to be herein called the “New Assets”), and (ii) the New Assets are now identified and more fully described in Schedule A to this Mortgage Supplement.
|
3.
|
The Mortgagors hereby acknowledge and agree (i) that the Real Estate Mortgage has been granted, created, established, and constituted on the New Assets in favor of Mortgagee and (ii) that such Real Estate Mortgage
are subject to the same provisions, terms, and conditions of the Mortgage Agreement as are applicable to the Mortgage on the Present Real Assets
thereunder, as fully and completely for all legal intents and purposes as if owned by the relevant Mortgagor on the date of execution of the Mortgage Agreement.
|
4.
|
The parties hereto confirm that the New Assets serve as security for payment of the Obligations to the extent of the amount stated in Section 2.01(d)
(
Creation of Real Estate Mortgage
)
of the Mortgage Agreement, including interests, fees, and charges that may be due thereon.
|
5.
|
Each of the Mortgagors undertakes, at Mortgagors' cost and expense, to register this Mortgage Supplement with the appropriate Registry of Deeds and, where necessary, other appropriate government agencies, in the Philippines in accordance with the Mortgage Agreement.
|
SunPower Philippines Manufacturing Ltd.
|
|||
By:
|
/s/ Suzanne Mondonedo
|
||
|
|
||
Name:
|
Suzanne Mondonedo
|
||
Title:
|
Assistant Secretary
|
SPML Land, Inc.
|
|||
By:
|
/s/ Nereo Mella
|
||
|
|
||
Name:
|
Nereo Mella
|
||
Title:
|
Director and Corporate Secretary
|
International Finance Corporation
|
|||
By:
|
/s/ Jesse O. Ang
|
||
|
|
||
Name:
|
Jess O. Ang
|
||
Title:
|
Resident Representative
|
Name
|
Community Tax Certificate No. & Passport No.
|
Issued at/on
|
SunPower Philippines
Manufacturing Ltd.
represented by: Suzanne Mondonedo
|
|
Sep 18, 2006
|
|
|
|
SPML Land, Inc.
represented by: Nereo Mella
|
|
Sep 30, 2010
|
Name
|
Community Tax Certificate No. & Passport No.
|
Issued at/on
|
International Finance Corporation
represented by: JESSE O. ANG
|
|
Jan. 14, 2010
DFA Manila
|
1.
|
The Lease Rights of SPML over the Premises under the Contract of Lease between SPML and SPML Land effective as of 1 September 2010 executed on 12 October 2010 (Doc. No. 361, Page No. 34, Book No. IV, Series of 2010 of Notary Public Edgardo M. Salandanan for Biñan, Laguna).
|
1.
|
Unless otherwise defined in this Mortgage Supplement, (i) capitalized terms shall have the meanings set forth in the Loan Agreement and the Mortgage Agreement unless the context otherwise requires, and (ii) the principles of construction set forth in the Loan Agreement and the Mortgage Agreement shall apply.
|
2.
|
The Mortgagors hereby confirm that (i) certain of the Assets identified and described as Future Real Assets
in the Mortgage Agreement have come into existence and/or have been acquired in ownership by a Mortgagor as of the date hereof (those certain assets to be herein called the “New Assets”), and (ii) the New Assets are now identified and more fully described in Schedule A to this Mortgage Supplement.
|
3.
|
The Mortgagors hereby acknowledge and agree (i) that the Real Estate Mortgage has been granted, created, established, and constituted on the New Assets in favor of Mortgagee and (ii) that such Real Estate Mortgage
are subject to the same provisions, terms, and conditions of the Mortgage Agreement as are applicable to the Mortgage on the Present Real Assets
thereunder, as fully and completely for all legal intents and purposes as if owned by the relevant Mortgagor on the date of execution of the Mortgage Agreement.
|
4.
|
The parties hereto confirm that the New Assets serve as security for payment of the Obligations to the extent of the amount stated in Section 2.01(d)
(
Creation of Real Estate Mortgage
)
of the Mortgage Agreement, including interests, fees, and charges that may be due thereon.
|
5.
|
Each of the Mortgagors undertakes, at Mortgagors' cost and expense, to register this Mortgage Supplement with the appropriate Registry of Deeds and, where necessary, other appropriate government agencies, in the Philippines in accordance with the Mortgage Agreement.
|
SunPower Philippines Manufacturing Ltd.
|
|||
By:
|
/s/ Jascha Ortmanns
|
||
|
|
||
Name:
|
Jascha Ortmanns
|
||
Title:
|
Vice President - Operations
|
SPML Land, Inc.
|
|||
By:
|
/s/ Michelle Ramos
|
||
|
|
||
Name:
|
Michelle Ramos
|
||
Title:
|
Treasurer/CFO
|
International Finance Corporation
|
|||
By:
|
/s/ Jesse O. Ang
|
||
|
|
||
Name:
|
Jess O. Ang
|
||
Title:
|
Resident Representative
|
Name
|
Passport No.
|
Issued at/on
|
|
|
|
SunPower Philippines Manufacturing Ltd.
represented by:
Jascha Ortmanns
|
|
Singapore/June 06, 2010
|
SPML Land, Inc.
represented by:
Michelle Ramos
|
|
Manila / March 05, 2010
|
Name
|
Passport No.
|
Issued at/on
|
|
|
|
International Finance Corporation
represented by:
Jesse O. Ang
|
|
1/14/10 DFA Manila
|
1.
|
The Lease Rights of SPML over the Premises under the Amendment No. 1 to Lease Agreement (Fab 2 Site) between SPML and SPML Land effective as of 1 September 2010 executed on 6 July 2012 (Doc. No. 173, Page No. 36, Book No. VIII, Series of 2012 of Notary Public Atty. Ma. Fatima Ungson-Liu for Biñan, Laguna).
|
The “Company”
SUNPOWER CORPORATION
|
||
By:
|
/s/ Charles Boynton
|
|
Name:
|
Charles Boynton
|
|
Title:
|
Chief Financial officer
|
|
|
||
The “Subsidiary Applicant”
SUNPOWER CORPORATION, SYSTEMS
|
||
By:
|
/s/ Charles Boynton
|
|
Name:
|
Charles Boynton
|
|
Title:
|
Chief Financial officer
|
|
|
||
The “Parent Guarantor”
TOTAL, S.A.
|
||
By:
|
/s/ Patrick de la Chevardière
|
|
Name:
|
Patrick de la Chevardière
|
|
Title:
|
Chief Financial Officer
|
The “Administrative Agent”, the “Issuing Bank”, and a “Bank”
DEUTSCHE BANK AG NEW YORK BRANCH, individually, as Administrative Agent, and as Issuing Bank
|
||
By:
|
/s/ Jack Leong
|
|
Name:
|
Jack Leong
|
|
Title:
|
Director
|
|
|
||
By:
|
/s/ Robert Lofaro
|
|
Name:
|
Robert Lofaro
|
|
Title:
|
Director
|
BANCO SANTANDER, S.A., NEW YORK BRANCH, as a Bank
|
||
By:
|
/s/ Rita Walz-Cuccioli
|
|
Name:
|
Rita Walz-Cuccioli
|
|
Title:
|
Executive Director
Banco Santander, S.A., New York Branch
|
|
|
||
By:
|
/s/ Terence Corcoran
|
|
Name:
|
Terence Corcoran
|
|
Title:
|
Senior Vice President
Banco Santader, S.A., New York Branch
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Bank
|
||
By:
|
/s/ Page Dillehunt
|
|
Name:
|
Page Dillehunt
|
|
Title:
|
Managing Director
|
|
|
||
By:
|
/s/ Michael Willis
|
|
Name:
|
Michael Willis
|
|
Title:
|
Managing Director
|
HSBC BANK USA, NATIONAL ASSOCIATION, as a Bank
|
||
By:
|
/s/ Christopher M. Samms
|
|
Name:
|
Christopher M. Samms
|
|
Title:
|
Senior Vice President, #9426
|
LLOYDS TSB BANK PLC, as a Bank
|
||
By:
|
/s/ Stephen Giacolone
|
|
Name:
|
Stephen Giacolone
|
|
Title:
|
Assistant Vice Presdient - G011
|
|
|
||
By:
|
/s/ Dennis McClellan
|
|
Name:
|
Dennis McClellan
|
|
Title:
|
Assistant Vice President - M040
|
THE BANK OF TOKYO - MITSUBISHI
UFJ, LTD, PARIS BRANCH, as a Bank
|
||
By:
|
/s/ Ko TAKIGAWA
|
|
Name:
|
Ko TAKIGAWA
|
|
Title:
|
General Manager
|
SUNPOWER CORPORATION
|
||
By:
|
/s/ Charles Boynton
|
|
Name:
|
Charles Boynton
|
|
Title:
|
Chief Financial Officer
|
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, individually and as Agent
|
||
By:
|
/s/ Michael D. Willis
|
|
Name:
|
Michael D. Willis
|
|
Title:
|
Managing Director
|
|
|
||
By:
|
/s/ Dianne Scott
|
|
Name:
|
Dianne Scott
|
|
Title:
|
Managing Director
|
CITICORP NORTH AMERICA, INC.,
as a Lender
|
||
By:
|
/s/ Anita J. Brickell
|
|
Name:
|
Anita J. Brickell
|
|
Title:
|
Vice President
|
HSBC BANK USA, NATIONAL
ASSOCIATION, as a Lender
|
||
By:
|
/s/ Courtney Wright
|
|
Name:
|
Courtney Wright
|
|
Title:
|
Vice President
Multinationale
#19791
|
LLOYDS TSB BANK PLC, as a Lender
|
||
By:
|
/s/ Stephen Giacolone
|
|
Name:
|
Stephen Giacolone
|
|
Title:
|
Assistant Vice President - G011
|
|
|
||
By:
|
/s/ Julia R. Franklin
|
|
Name:
|
Julia R. Franklin
|
|
Title:
|
Vice President
F014
|
ROYAL BANK OF SCOTLAND, plc
as a Lender
|
||
By:
|
/s/ Tyler J. McCarthy
|
|
Name:
|
Tyler J. McCarthy
|
|
Title:
|
Director
|
SOVEREIGN BANK, N.A. as a Lender
|
||
By:
|
/s/ William Maag
|
|
Name:
|
William Maag
|
|
Title:
|
Senor Vice President
|
SunPower Philippines
Manufacturing Ltd
|
-
2
-
|
October 3, 2012
|
|
Spread
|
|||
From January 6, 2013 to September 30, 2013
|
4.25% per annum
|
|||
From October 1, 2013 to January 5, 2014
|
5.00% per annum
|
SunPower Philippines
Manufacturing Ltd
|
-
3
-
|
October 3, 2012
|
By:
|
/s/ Jesse O. Ang
|
|
Name:
|
Jesse O. Ang
|
|
Title:
|
Resident Representative, Philippines
|
SunPower Philippines
Manufacturing Ltd
|
-
4
-
|
October 3, 2012
|
SUNPOWER CORPORATION
|
|||
By:
|
/s/ Chuck Boynton
|
||
Name:
|
Chuck Boynton
|
||
Title:
|
CFO
|
||
|
|
||
|
|
||
SUNPOWER PHILIPPINES MANUFACTURING LTD.
|
|||
By:
|
/s/ Chuck Boynton
|
||
Name:
|
Chuck Boynton
|
||
Title:
|
SVP & CFO
|
||
|
|
||
|
|
||
SPML LAND, INC.
|
|||
By:
|
/s/ Michelle M. Ramos
|
||
Name:
|
Michelle M. Ramos
|
||
Title:
|
Treasurer / CFO
|
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
|
|
|
|
Page
|
|
ARTICLE 1. CONTRACT INTERPRETATION AND EFFECTIVENESS
|
2
|
|
||
|
1.1
|
Rules of interpretation
|
2
|
|
|
1.2
|
Defined terms
|
3
|
|
|
1.3
|
Order of precedence
|
22
|
|
|
1.4
|
Entire agreement
|
22
|
|
|
1.5
|
No agency
|
22
|
|
|
1.6
|
Invalidity
|
22
|
|
|
1.7
|
Binding effect
|
23
|
|
|
1.8
|
Counterparts
|
23
|
|
|
1.9
|
Effective date
|
23
|
|
|
1.10
|
Time is of the Essence
|
23
|
|
|
1.11
|
Notice to Proceed
|
23
|
|
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
|
25
|
|
||
|
2.1
|
Representations and Warranties of Contractor
|
25
|
|
|
2.2
|
Representations and Warranties of Owner
|
27
|
|
ARTICLE 3. CONTRACTOR'S OBLIGATIONS
|
28
|
|
||
|
3.1
|
Performance of Work
|
28
|
|
|
3.2
|
Scope of Work
|
29
|
|
|
3.3
|
Properly Licensed; Sufficient Qualified Personnel
|
29
|
|
|
3.4
|
Utilities
|
29
|
|
|
3.5
|
Contract Documents
|
29
|
|
|
3.6
|
Record-Keeping
|
30
|
|
|
3.7
|
Materials and Equipment
|
30
|
|
|
3.8
|
Compliance and Cooperation With EITC Requirements, Applicable Laws, Applicable Permits Applicable Codes and Industry Standards
|
30
|
|
|
3.9
|
Contractor Acquired Permits; Other Approvals
|
30
|
|
|
3.10
|
Spare Parts
|
30
|
|
|
3.11
|
Construction Schedule; Progress Reports; Meetings
|
30
|
|
|
3.12
|
Transportation
|
32
|
|
|
3.13
|
Security
|
32
|
|
|
3.14
|
Safety; Quality Assurance
|
32
|
|
|
3.15
|
Clean-up
|
33
|
|
|
3.16
|
Suppliers and Subcontractors
|
33
|
|
|
3.17
|
Insurance
|
34
|
|
|
3.18
|
Contractor's Personnel
|
34
|
|
|
3.19
|
Hazardous Materials
|
34
|
|
|
3.20
|
Contractor Performance Security
|
34
|
|
|
3.21
|
Business Practices
|
34
|
|
|
3.22
|
Delay Response Plan
|
34
|
|
|
3.23
|
Project Labor Agreement; Employees
|
34
|
|
|
3.24
|
Notification
|
35
|
|
|
3.25
|
Site Conditions
|
36
|
|
|
3.26
|
Other Reports and Quality Control Documents
|
36
|
|
|
3.27
|
Construction Methods
|
36
|
|
|
3.28
|
Cooperation; Access
|
36
|
|
|
3.29
|
Business Ethics
|
37
|
|
|
3.30
|
Real Property Rights
|
37
|
|
|
3.31
|
***
|
37
|
|
|
3.32
|
***
|
37
|
|
|
3.33
|
***
|
37
|
|
|
3.34
|
Quitclaim.
|
38
|
|
ARTICLE 4. OWNER'S OBLIGATIONS
|
38
|
|
||
|
4.1
|
Access
|
38
|
|
|
4.2
|
Compliance with Laws and Permits
|
39
|
|
|
4.3
|
Full Notice to Proceed
|
39
|
|
|
4.4
|
Owner Exclusive Obligations
|
39
|
|
|
4.5
|
Owner's Representative
|
40
|
|
|
4.6
|
Insurance
|
40
|
|
|
4.7
|
Owner Payment Security
|
40
|
|
|
4.8
|
Cooperation
|
41
|
|
|
4.9
|
Extensions to Commercial Operation Deadline***
|
41
|
|
|
4.10
|
Enforcement and Termination of Leases
|
41
|
|
|
4.11
|
***
|
41
|
|
ARTICLE 5. REPRESENTATIVES; KEY PERSONNEL
|
41
|
|
||
|
5.1
|
Owner's Representative
|
41
|
|
|
5.2
|
Contractor's Key Personnel
|
42
|
|
|
5.3
|
Power to Bind
|
42
|
|
|
5.4
|
Notices
|
42
|
|
ARTICLE 6. INSPECTION
|
42
|
|
||
|
6.1
|
Inspection
|
42
|
|
|
6.2
|
***
|
42
|
|
ARTICLE 7. CONTRACT PRICE
|
42
|
|
||
|
7.1
|
Contract Price
|
42
|
|
ARTICLE 8. PAYMENT PROCESS & PERFORMANCE SECURITY
|
43
|
|
||
|
8.1
|
Payments
|
43
|
|
|
8.2
|
Milestone Assessment
|
43
|
|
|
8.3
|
Application for Payment
|
44
|
|
|
8.4
|
Lien Releases
|
44
|
|
|
8.5
|
Release of Liability
|
45
|
|
|
8.6
|
Overdue Payments
|
45
|
|
|
8.7
|
Disputed Payments
|
45
|
|
|
8.8
|
Performance Security
|
45
|
|
|
15.4
|
Capacity Test Acceptance
|
57
|
|
|
15.5
|
Capacity Test Rejection
|
57
|
|
|
15.6
|
Right to Use Temporary Equipment
|
57
|
|
|
15.7
|
***
|
58
|
|
ARTICLE 16. BLOCK SUBSTANTIAL COMPLETION; FACILITY SUBSTANTIAL COMPLETION
|
58
|
|
||
|
16.1
|
Generally
|
58
|
|
|
16.2
|
Block Substantial Completion Defined
|
58
|
|
|
16.3
|
Notice and Certificate of Block Substantial Completion
|
59
|
|
|
16.4
|
Facility Substantial Completion Defined
|
59
|
|
|
16.5
|
Notice and Certificate of Facility Substantial Completion
|
60
|
|
|
16.6
|
Punch List
|
61
|
|
ARTICLE 17. STAGES OF COMPLETION; DELAY AND CAPACITY LIQUIDATED DAMAGES; EITC AND DEPRECIATION LOSS
|
63
|
|
||
|
17.1
|
Block Delay Liquidated Damages
|
63
|
|
|
17.2
|
Guaranteed Facility Substantial Completion Delay Liquidated Damages
|
63
|
|
|
17.3
|
Block Capacity Liquidated Damages
|
63
|
|
|
17.4
|
Netting
|
64
|
|
|
17.5
|
Final Capacity Liquidated Damages
|
64
|
|
|
17.6
|
Liquidated Damages Reasonable
|
65
|
|
|
17.7
|
Energy and Revenues of the Project
|
65
|
|
|
17.8
|
EITC and Depreciation Loss
|
65
|
|
|
17.9
|
Enforceability
|
66
|
|
ARTICLE 18. FINAL COMPLETION
|
67
|
|
||
|
18.1
|
Generally
|
67
|
|
|
18.2
|
Certificate of Final Completion
|
67
|
|
|
18.3
|
Failure to Achieve Final Completion
|
68
|
|
ARTICLE 19. SUSPENSION OF THE WORK
|
68
|
|
||
|
19.1
|
Suspension for Non-Payment
|
68
|
|
|
19.2
|
Contractor Suspension
|
68
|
|
|
19.3
|
Extended Owner Suspension
|
68
|
|
|
19.4
|
Resumption of Work After Suspension
|
69
|
|
|
19.5
|
Costs and Schedule Relief for Contractor-Caused Suspension
|
69
|
|
ARTICLE 20. DEFAULTS AND REMEDIES
|
69
|
|
||
|
20.1
|
Contractor Events of Default
|
69
|
|
|
20.2
|
Owner Rights and Remedies
|
71
|
|
|
20.3
|
Owner Event of Default
|
72
|
|
|
20.4
|
Contractor Rights and Remedies
|
73
|
|
|
20.5
|
Termination Payment
|
73
|
|
|
20.6
|
Termination Right Not Exclusive
|
74
|
|
|
20.7
|
Termination Events for Extended Force Majeure.
|
74
|
|
|
20.8
|
***
|
74
|
|
|
20.9
|
***
|
75
|
|
|
20.10
|
Contractor Conduct
|
75
|
|
ARTICLE 21. WARRANTIES
|
75
|
|
||
|
21.1
|
Sole Warranty
|
75
|
|
|
21.2
|
No Liens or Encumbrances
|
75
|
|
|
21.3
|
Defect Warranty
|
75
|
|
|
21.4
|
Warranty Period
|
76
|
|
|
21.5
|
Exclusions
|
76
|
|
|
21.6
|
Correction of Defects
|
77
|
|
|
21.7
|
Module Warranty and Performance Guaranty Agreement
|
79
|
|
|
21.8
|
Limitations On Warranties
|
79
|
|
ARTICLE 22. PUBLICITY
|
80
|
|
||
|
22.1
|
Signage
|
80
|
|
|
22.2
|
Press Releases
|
80
|
|
|
22.3
|
Contractor's Continued Access to Information and the Site.
|
80
|
|
ARTICLE 23. INSURANCE
|
81
|
|
||
|
23.1
|
Contractor's Insurance
|
81
|
|
|
23.2
|
Owner's Insurance
|
81
|
|
|
23.3
|
Ratings
|
81
|
|
|
23.4
|
Policy Requirements
|
81
|
|
|
23.5
|
No Limitation and Release
|
81
|
|
|
23.6
|
Reduction or Ceasing to be Maintained
|
81
|
|
|
23.7
|
Expiration
|
82
|
|
ARTICLE 24. INDEMNITY
|
82
|
|
||
|
24.1
|
Contractor Indemnity
|
82
|
|
|
24.2
|
Owner Indemnity
|
84
|
|
|
24.3
|
Patent Infringement and Other Indemnification Rights
|
85
|
|
|
24.4
|
Environmental Indemnification
|
86
|
|
|
24.5
|
Right to Defend
|
86
|
|
|
24.6
|
Defense to Indemnification Obligations
|
87
|
|
|
24.7
|
Comparative Fault
|
87
|
|
|
24.8
|
Survival of Indemnity Obligations
|
87
|
|
ARTICLE 25. CONFIDENTIALITY
|
88
|
|
||
|
25.1
|
Dissemination of Confidential Information
|
88
|
|
|
25.2
|
DAS System Information
|
89
|
|
|
25.3
|
Return of Confidential Information
|
89
|
|
ARTICLE 26. ASSIGNMENT
|
90
|
|
||
|
26.1
|
Prohibition on Assignment
|
90
|
|
|
26.2
|
Exceptions
|
90
|
|
Exhibit 6B
|
-
|
Owner Acquired Permits
|
Exhibit 7
|
-
|
Contractor Submittals
|
Exhibit 8A
|
-
|
Form of Monthly Progress Report (attached separately)
|
Exhibit 8B
|
-
|
Form of Weekly Progress Report
|
Exhibit 9
|
-
|
Payment Schedule
|
Exhibit 10
|
-
|
Form of Application for Payment
|
Exhibit 11
|
-
|
Form of Contractor Performance Security
|
Exhibit 12
|
-
|
Form of Equity Contribution Agreement
|
Exhibit 13A
|
-
|
Form of Conditional Waiver and Release on Progress Payment
|
Exhibit 13A-1
|
-
|
***
|
Exhibit 13B
|
-
|
Form of Conditional Waiver and Release on Final Payment
|
Exhibit 14
|
-
|
Module Warranty
|
Exhibit 15
|
-
|
Insurance Requirements
|
Exhibit 16A
|
-
|
Capacity and Availability Test
|
Exhibit 16B
|
-
|
Performance Guarantee
|
Exhibit 16C
|
-
|
Installed DC Rating Survey
|
Exhibit 16D
|
-
|
Facility Demonstration Test
|
Exhibit 17
|
-
|
Form of Capacity Test Completion Certificate
|
Exhibit 18
|
-
|
Disputed Change Order Methodology
|
Exhibit 19
|
-
|
Form of Certificate of Block Substantial Completion
|
Exhibit 20
|
-
|
Form of Certificate of Facility Substantial Completion
|
Exhibit 21
|
-
|
Form of Certificate of Final Completion
|
Exhibit 22
|
-
|
Form of Safety Plan
|
Exhibit 23
|
-
|
Form of Quality Assurance Plan
|
Exhibit 24
|
-
|
Qualified Major Subcontractors
|
Exhibit 25
|
-
|
EITC and Depreciation Exhibit
|
Exhibit 26
|
-
|
Limited Notice to Proceed Work
|
Exhibit 27
|
-
|
Functional Test
|
Exhibit 28
|
-
|
Performance Guaranty Agreement
|
Exhibit 29
|
-
|
Right of First Offer
|
Exhibit 30
|
-
|
Spare Parts
|
Exhibit 31
|
-
|
Credit Support Requirements
|
Exhibit 32
|
-
|
Form of Acceptable Letter of Credit
|
Exhibit 33
|
-
|
***
|
Owner
|
Solar Star California XIX, LLC
c/o MidAmerican Renewables, LLC
1850 N. Central
Suite #1025
Phoenix, Arizona 85004
***
***
|
With a copy to (which shall not constitute notice):
|
|
|
Solar Star California XIX, LLC
c/o MidAmerican Renewables, LLC
1850 N. Central
Suite #1025
Phoenix, Arizona 85004
***
***
|
Contractor:
|
SunPower Corporation, Systems
1414 Harbour Way, South
Richmond, California 94804 USA
***
***
|
Solar
Star
California XIX, LLC
SunPower Corporation, Systems, its Managing Member
By:
/s/ Charles D. Boynton
Charles D. Boynton
Chief Financial Officer
|
|
|
SUNPOWER CORPORATION, SYSTEMS
By:
/s/ Howard Wenger
Howard Wenger
President and Chief Executive Officer
|
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
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|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
|
***
|
***
|
***
|
|
***
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
|
***
|
***
|
***
|
***
|
***
|
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|
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|
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|
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|
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|
***
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
|
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|
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|
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|
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***
|
***
|
***
|
***
|
***
|
***
***
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
PPA Section
|
Task Summary
|
Timing
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
***
|
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|
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|
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|
***
|
***
|
***
|
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|
***
|
***
|
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|
***
|
***
|
***
|
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|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
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|
***
|
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|
***
|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
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|
***
|
***
|
***
|
***
|
***
|
***
|
Section
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
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|
***
|
***
|
***
|
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|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Period
|
PV Modules Delivered AVSP I, MWdc
|
PV Modules Delivered AVSP II, MWdc
|
Total PV Modules Delivered, MWdc
|
Quarter % PV Modules Delivered
|
Total % PV Modules Delivered
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Total
|
***
|
***
|
***
|
***
|
***
|
Title
|
Contractor Key Personnel Assigned
|
Contractor's Representative - AVSP I
|
***
|
Project Director - AVSP I
|
***
|
Site Director - AVSP I
|
***
|
Engineering Manager - AVSP I
|
***
|
Environmental Permit Manager - AVSP I
|
***
|
Safety Manager - AVSP I
|
***
|
Commissioning/Testing Manager - AVSP I
|
***
|
12.
|
Pre-Construction Surveys for Migratory Birds and Raptors, Burrowing Owl, American Badger and Desert Kit Fox, Active Bat Maternity Roosts, Coast Horned Lizard and Silvery Legless Lizard and Desert Tortoise
|
Kern County and Los Angeles County
|
13.
|
Decommissioning Plan
|
Kern County and Los Angeles County
|
14.
|
Authorization to Modify Tree Planting Requirements
|
Los Angeles County
|
15.
|
Dedication of Alternative Energy Corridor
|
Kern County
|
16.
|
Construction Traffic Control Plan
|
Kern County; Los Angeles County; CalTrans District 6; CalTrans District 7
|
17.
|
Approval of Solar Panel Support/Foundation Structures
|
Kern County
|
18.
|
Street Plan Approval
|
Los Angeles County
|
19.
|
Agreement for Street Improvements
|
Los Angeles County
|
20.
|
260' Wide Flood Channel Crossing
|
Los Angeles County
|
21.
|
Fugitive Dust Emissions Control Plan
|
Eastern Kern County Air Pollution Control District
|
22.
|
Dust Control Plan
|
Antelope Valley Air Quality Management District
|
23.
|
Drainage Plan
|
Kern County
|
24.
|
Water Supply and Sewage Disposal Plan
|
Kern County
|
25.
|
LA County Landowner Affidavits
|
Los Angeles County
|
26.
|
Memorandum of Understanding and Agreement for Performance of Zoning Ordinance and Mitigation Measures as Environmental Restrictions
|
Kern County
|
27.
|
Covenant and Agreement
|
Los Angeles County
|
28.
|
Fire Safety Plan (during construction)
|
Kern and Los Angeles County Fire Departments
|
29.
|
Hazardous Waste Identification Number (during construction)
|
US Environmental Protection Agency
|
30.
|
Oil Spill Prevention Control and Countermeasure Plan (during construction)
|
US Environmental Protection Agency
|
31.
|
General Permit for Discharge of Storm Water Associated with Construction Activities (during construction)
|
State Water Resources Control Board
|
32.
|
Septic System Permits (if not a part of building permits)
|
Kern County
|
33.
|
Grading Permit
|
Kern County and Los Angeles County
|
34.
|
Building/Construction Permits
|
Kern County and Los Angeles County
|
35.
|
Archaeological Research Design and Treatment Plan waiver
|
Kern County Planning and Community Development Department
|
|
Permit
|
Applicable Agency
|
1.
|
Final Environmental Impact Report (SCH# 2010031022) for the Antelope Valley Solar Project (approved August 2, 2011; NOD filed August 24, 2011)
|
Kern County Board of Supervisors
|
2.
|
Water Supply Assessment (approved August 2, 2011)
|
Kern County Board of Supervisors
|
3.
|
Resolution No. 2011-193 approving Specific Plan Amendment Case Nos. 17, 2 and 3 (Map Nos. 232, 232-23 and 233) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
4.
|
Resolution No. 2011-194 approving amendments to Zoning Map Nos. 232 and 232-23 (Zone Change Case Nos. 34 and 5) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
5.
|
Ordinance No. G-8179 amending Zoning Map No. 232 (Zone Change Case No. 34) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
6.
|
Ordinance No. G-8180 amending Zoning Map No. 232-23 (Zone Change Case No. 5) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
7.
|
Resolution No. 2011-195 approving Tentative Cancellation of Williamson Act Contracts (approved August 2, 2011; corrected September 4, 2012)
|
Kern County Board of Supervisors
|
8.
|
Resolution No. 2011-196 approving Conditional Use Permit Nos. 28, 2 and 8 (Map Nos. 232, 232-23 and 233) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
9.
|
Addendum to the Environmental Impact Report for the Antelope Valley Solar Project (approved October 19, 2011)
|
Los Angeles County Board of Supervisors
|
10.
|
Conditional Use Permit No. 201000071 (Project No. R2010-00808-(5)) (approved October 19, 2011)
|
Los Angeles County Board of Supervisors
|
11.
|
Addendum to the Environmental Impact Report for the Antelope Valley Solar Project (approved March 13, 2012; NOD filed March 22, 2012)
|
Kern County Board of Supervisors
|
12.
|
Resolution No. 2012-036 approving amendments to Zoning Map No. 233 (Zone Change Case No. 15) (approved March 13, 2012)
|
Kern County Board of Supervisors
|
13.
|
Ordinance No. G-8262 amending Zoning Map No. 233 (Zone Change Case No. 15) (approved March 13, 2012)
|
Kern County Board of Supervisors
|
14.
|
Resolution No. 2012-037 approving Modification to Conditional Use Permit Nos. 28 and 8 (Map Nos. 232 and 233) (approved March 13, 2012)
|
Kern County Board of Supervisors
|
15.
|
Certificate of Cancellation of Williamson Act Contract (approved September 20, 2012)
|
Kern County Board of Supervisors
|
16.
|
Hazardous Waste Identification Number (during operations)
|
US Environmental Protection Agency
|
17.
|
Oil Spill Prevention Control and Countermeasure Plan (during operations)
|
US Environmental Protection Agency
|
18.
|
Industrial Storm Water General Permit Order 97-03-DWQ (General Industrial Permit) (during operations) (if required)
|
Lahontan Regional Water Quality Control Board (LRWQCB)
|
19.
|
Water Quality Certification (during operations) (if required)
|
Lahontan Regional Water Quality Control Board (LRWQCB)
|
20.
|
Fire Safety Plan (during operations)
|
Kern and Los Angeles County Fire Departments
|
21.
|
Raven Management Plan consultation (during operations)
|
U.S. Fish & Wildlife Service
|
22.
|
Market-Based Rate Authorization under Section 205 of the Federal Power Act
|
FERC
|
|
1.1
|
Exhibit 7
lists the documentation to be provided by Contractor to Owner. In order to facilitate the Owner's right to review Contractor Submittals in accordance with the terms of this Agreement, Contractor shall provide such documentation in accordance with the submission requirements set forth in this
Exhibit 7
. Transmittals for all submittals are to clearly indicate Owner's name, Contractor's project number, Owner's project number, how they are being sent, and the reason for the submittal. The transmittal should include a clear, concise description of all documents enclosed. Documentation by drawing number, revision number, document or drawing title, and date should be indicated, if applicable. Distributions to other parties are to be shown on the face of the transmittal.
|
1.2
|
Contractor Submittals identified below will be transferred electronically to Owner via Contractor's document management system, E-Builder. Contractor will send to Owner, through E-builder, an email with a hyperlink to an online server where Owner may download documents for its review from E-Builder. Electronically transmitted documents are submitted as portable document format (*.pdf) files. Documents that cannot be transmitted electronically shall be submitted to Owner as hard copy via overnight mail. The date of the email notification or the date indicated on the delivery receipt for overnight mail shall be the contractual delivery date for the Contractor Submittals.
|
1.3
|
Contractor shall submit to Owner for information all Contractor Submittals and modified Contractor Submittals. All documents prepared by Contractor shall be in English and shall bear the Project name AVSP I and a full title block containing a unique identification number, revision number, source and type of document and descriptive title. Each document shall clearly indicate the applicable status of the document (e.g. Preliminary, for Information, for Review, for Permit, for Bid, for Bid Addendum, for Construction, Design Bulletin, and Record Drawing incorporating all as-built comments) as well as the revision date. Contractor shall make reasonable efforts to obtain subcontractor submittals that follow these same guidelines.
|
1.4
|
Contractor shall make reasonable efforts that project drawings be prepared in such a way that photo-reduction to 11”x17” size shall result in a legible and useable drawing. Particular attention shall be paid in this respect to selection of fonts. A scale bar shall be included to permit use following photo-reduction on drawings where where scaling is applicable.
|
1.5
|
Where possible, and for Contractor Submittals generated after the Effective Date, one electronic copy of Contractor and Subcontractor generated drawings and documents (the list of such drawings and documents to be determined by Owner after consultation with Contractor) shall be issued to Owner for review before the
|
1.5.1
|
The measurement system shall be US customary units for all construction and permit drawings.
|
1.5.2
|
Vendor drawings for electrical equipment shall be US customary units or SI units. Vendor drawings shall clearly identify unit system.
|
1.5.3
|
Drawings
: Copies shall be submitted in electronic form (portable document format (*.pdf). All final drawings/document submittals that are reasonably likely to require updating over the life of the Project shall additionally be submitted in AutoCad to facilitate such future updates by Owner.
|
1.5.4
|
Documents
: one electronic copy shall be provided in portable document format (*.pdf) files for written text such as letters, specifications, procedures, calculations (not including Subcontractor proprietary calculations), manuals, lists, etc.
|
1.5.5
|
Drawings and Documents
: Contractor shall make reasonable efforts to secure electronically formatted drawings and documents from all Subcontractors. When electronic formatting as noted in Sections 1.5.3 and 1.5.4, is not obtainable due to Subcontractor policies or procedures then Contractor shall have such materials scanned and submitted in portable document format (*.pdf).
|
1.6
|
Subcontractor drawings and documentation shall also be submitted electronically to Owner as described above. Owner may make comments to Contractor on Subcontractor drawings and documents if items are found not to be in compliance with the requirements of this Agreement. Owner's review period shall be *** for procurement specifications, *** for all other Contractor Submittals. Owner will reasonably cooperate with Contractor to expedite reviews as necessary. Any document not returned to Contactor in the allowable period shall be deemed accepted with no comment or approved if submitted for approval. If Owner and Contractor shall not agree as to whether Contractor is in compliance with the requirements of this Agreement, this dispute shall be resolved in accordance with Article 28.
|
|
2.1
|
Owner and Contractor agree to participate in an accelerated Design Review prior to contract Effective Date. Owner and Contractor agree to accelerated resolution of Design Review comments.
|
2.2
|
The purpose of the Design Review is to afford Owner the opportunity to ensure that Contractor's design and final
|
2.3
|
The Design Review will consist of Owner review of the permit documents Contractor has submitted to Kern and Los Angeles counties for approval.
|
2.4
|
Design Review shall not commence without Owner or Owner's representative.
|
2.5
|
The Design Review shall be held at Contractor facilities in Richmond, California.
|
2.6
|
All Design Review participants shall pay their own travel, lodging and other expenses.
|
2.7
|
Contractor and Owner shall provide access to all relevant technical subject matter experts during the Design Review.
|
2.8
|
Design Review Documents will consist of the permitting and supporting documents, which include but are not limited to:
|
2.8.1
|
Array layout with major equipment locations
|
2.8.1.1
|
Control Point Schedule with equipment names and locations for PCS stations, motors and controllers, and MDAS tower locations in solar fields.
|
2.8.2
|
Electrical Design Documents
|
2.8.2.1
|
Physical Drawings showing all equipment locations, conduit interfaces, and trenching.
|
2.8.2.2
|
AC single line(s)
|
2.8.2.3
|
DC single line(s)
|
2.8.2.4
|
Schematic and Wiring Diagrams
|
2.8.2.5
|
Grounding Diagrams
|
2.8.2.6
|
Preliminary PCS layout
|
2.8.2.7
|
Cable Schedule (if not contained on one-line diagrams)
|
2.8.3
|
Preliminary grading plan
|
2.8.4
|
Preliminary storm water plan
|
2.8.5
|
Structural Design Documents
|
2.8.7.1
|
Drawings of all equipment foundations showing all equipment outline requirements including anchor bolts that are to be used in the design of the foundations
|
2.8.7.2
|
Structural calculations detailing design criteria, equipment loads, and material selection
|
2.8.6
|
SCADA, Instrumentation, and Controls Design Documents
|
2.8.6.1
|
Communication block diagrams for substations and solar fields
|
2.8.6.2
|
Fiber Termination Details
|
2.8.6.3
|
SCP (SCADA Control Panel) DI Wiring Diagram
|
2.8.6.4
|
MDAS Schematics and Instrumentation Diagrams
|
2.8.6.5
|
SCADA Server Termination Details & Schematic
|
[2.8.6.6
|
Flow block diagrams and State machine diagrams
|
2.8.7
|
Site logistics plan
|
2.8.8
|
Specification list
|
2.8.9
|
Installation specification
|
2.8.10
|
Purchase specifications for:
|
2.8.10.1
|
AC Station (includes inverter)
|
2.8.10.2
|
34.5 kV collection system switchgear
|
2.8.10.3
|
Medium voltage cable
|
2.8.11
|
Electrical and structural calculations and studies required for permit (not including Subcontractor proprietary calculations)
|
2.8.12
|
Substation grounding calculations to support sizing
|
2.9
|
Contractor shall provide the supporting information upon which the Project design is based, including, but not limited to the results of survey, geotechnical report and addenda, and manufacturers' data.
|
2.10
|
During the Design Review, Owner may make comments to drawings and documents if items are found not to be in compliance
|
|
3.1
|
All other drawings or data listed herein or requested by Owner and provided by Contractor may be considered for information and record purposes. Owner may comment on such drawings and data to ensure compliance with the Agreement.
|
3.2
|
For Owner's records, Contractor shall develop and submit a comprehensive documentation/design package to Owner consisting of, but not limited to, the documents and drawings as prescribed in this Section III. The Design Review and Owner's review are covered in Section II.
|
3.2.1
|
Comprehensive Project documentation submittal schedule
|
3.2.2
|
Drawings:
|
·
|
Site plan/arrangement
|
·
|
Site grading and drainage
|
·
|
Site restoration and finishing
|
·
|
Soil stabilization, erosion, and sediment control
|
·
|
Foundation plans and details
|
·
|
Structural plans, details, and elevations
|
·
|
General plant arrangement, building arrangement, and hazardous area location (if any) drawings; and civil, and steel standard drawings
|
·
|
Array layout
|
·
|
Electrical/Instrument diagrams including electrical one-line, substation electrical three-line, and instrument diagrams
|
·
|
Power and control wiring, including AC and DC systems. Details showing protection against galvanic corrosion, if applicable. (i.e. Aluminum to copper transition)
|
·
|
AC Station drawings
|
·
|
String wiring diagrams
|
·
|
Relay tripping and control schematics and/or logic diagrams
|
·
|
Control system logic diagrams
|
·
|
SCADA system configuration drawings/diagrams
|
·
|
Fencing plan
|
·
|
All drawings issued/used for construction
|
·
|
Record drawings (including as-built comments) shall be submitted in AutoCad format no later than date set forth in Exhibit 1. All drawings submitted to Owner by Contractor shall be updated to reflect on-site changes and will be marked “ Record Drawings”.
|
3.2.3
|
Other Required Documentation:
|
·
|
Operations and maintenance manuals with respect to each Block shall be submitted no later than the date set forth in the Table Of Contractor Submittals shown at the end of this Exhibit 7. If a piece of equipment was “wholesale” changed out during the construction process for whatever reason the contractor shall provide updated maintenance and technical documentation to account for the change.
|
·
|
System descriptions
|
·
|
System turnover packages
|
·
|
SCADA graphics/configuration guidelines
|
·
|
Drawings that show equipment, instrument, device and SCADA schematics containing content mutually agreed upon by Owner and Contractor
|
·
|
Subcontractor drawings, documentation, and manuals required for Owner review
|
·
|
Schedules, including engineering, procurement, and construction (EPC) activities; integrated AVSP I schedules, and progress reports required pursuant to this Agreement.
|
·
|
Quality assurance and quality control program manuals
|
·
|
Project Health and Safety Plan attached as Exhibit 22 to this Agreement
|
·
|
Commissioning plan as required under this Agreement
|
·
|
Commissioning logs shall be submitted as required under Exhibit [16] to this Agreement
|
·
|
Performance test procedures/reports as required under the Agreement
|
·
|
Instructions for handling, storage, and pre-operational maintenance of Facility Equipment
|
·
|
Site and shop inspection and testing plans or requirements
|
·
|
Original Equipment Manufacturer's quality assurance (QA) documentation as provided by Manufacturer
|
·
|
Procurement specifications for all Equipment supplied by Major Subcontractors/ installation areas
|
·
|
Power transformer data sheets, as applicable
|
·
|
Instrument data sheets
|
·
|
Training program and manuals
|
·
|
Required Manuals
|
·
|
Contractor / Acquired Permits and Subcontractor permits
|
·
|
Meeting minutes for Owner/Contractor meetings
|
·
|
Electrical and structural calculations and studies submitted to permit agencies
|
·
|
Other non-proprietary engineering calculations applicable to the design and construction of the Project
|
|
4.1
|
Contractor shall provide Record Drawings for the entire Project, consisting of mechanical, electrical, and civil drawings, general arrangements, instrumentation diagrams, one-line, three-line, schematics, wiring, cable tray, routed conduit, and duct banks, and other drawings as mutually agreed upon by Owner and Contractor. Documents shall be re-drafted as necessary to incorporate final information. Mark-up sketches, referencing, and other field marking techniques are not acceptable as final Record Drawings. Contractor shall prepare “conformed to construction record” of the original drawings or data sheets.
|
4.2
|
During construction, Contractor shall maintain on file in the field reasonably current as-built redline mark-ups of all drawings and data sheets to agree with actual work undertaken.
|
4.3
|
Record drawings shall be issued by Contractor as the next sequential revision from previous releases. The revision block shall state Record Drawings. All clouds, revision diamonds, and other interim control marking shall be removed. All information listed as “later” or “hold” shall be completed or deleted. The conformed to construction record drawings shall be clear and readable in full size, and where possible, also in 11”x17” size reduction.
|
4.4
|
Major Subcontractors' drawings shall be conformed to construction records to reflect actual installed configuration. These Subcontractor drawings shall be in sufficient detail to indicate the kind, size, arrangement, weight of each component, and operation of component materials and devices, the external connections, anchorages, and supports required; the dimensions needed for installation, and correlation with other materials and equipment. Final Subcontractor's drawings shall be bound in the equipment Operation & Maintenance Manuals. One electronic copy, in portable document format (*.pdf), of the vendor drawings shall be provided.
|
4.5
|
Contractor shall provide one hard copy set of Record Drawings to Owner, in 12”x18” size.
|
|
5.1
|
All lists that will be Issued for Record shall be furnished in electronic format.
|
|
6.2
|
Where possible, Contractor Submittals lists shall be provided in electronic format such as Microsoft Excel or approved alternative to facilitate integration into Owner's existing applications. Owner will provide Contractor with reasonable formatting information as required.
|
6.3
|
Contractor shall provide final electronic submittals in the following software formats:
|
Database
|
Microsoft Access
|
Drawings
|
AutoCAD and AutoDesk Civil 3D
|
Project Schedules
|
Portable document format (*.pdf) produced from Microsoft Project or Primavera native format
|
|
7.1
|
General
|
7.1.1
|
For equipment being procured after the Effective Date, Contractor shall submit the specifications for each equipment package for Owner review for compliance with this agreement.
|
7.1.2
|
Contractor shall facilitate the exchange of information in order to demonstrate to Owner Contractor's plan to meet the schedule requirements of this Agreement.
|
7.1.3
|
For any drawing or design document developed or significantly updated after the Design Review, Contractor shall submit to Owner for review to fully establish that all parts shall comply with this Agreement. Owner review shall follow guidelines and timelines per agreement. Owner may make comments to drawings and documents if items are found not to be in compliance with the requirements of this Agreement. Contractor shall be obligated to resolve any such compliance issues in a timely manner and resubmit to Owner the Contractor drawings and documents reflecting such resolutions.
|
7.1.4
|
If Owner review is not completed on drawings covered in 7.1.3 and per this agreement, and should Contractor proceed with manufacture of Facility
|
7.1.5
|
Contractor shall be responsible for any discrepancies, errors, or omissions on the drawings supplied by Contractor or Subcontractors.
|
7.1.6
|
All drawings and data, including changes thereto, shall conform to the requirements of this Agreement.
|
Document
|
Timing of First Delivery
|
Sheet Sets
|
|
—
|
|
Civil Sheet Set
|
1
|
- Site Development Plan
|
|
- Monuments and Benchmark Plan
|
|
- Miscellaneous Foundations
|
|
- Road and Driveway sections
|
|
- Demolition Plan
|
|
- Grading, road layout and fencing plans
|
|
- Erosion control plan
|
|
Structural Sheet Set
|
2
|
- Operation and Maintenance Building Arrangement and Foundation Concept
|
|
Electrical Sheet Set
|
1
|
- Cable Schedule
|
|
- Construction Power One-Line
|
|
- MV One-Line
|
|
- Grounding plan and details
|
|
- Underground cable plans
|
|
- Direct buried cable sections
|
|
- Ductbank Sections
|
|
- 34.5kV Plans & Profiles
|
|
- 34.5kV Assemblies
|
|
- 34.5kV Structure Details
|
|
SCADA Sheet Set
|
1
|
- Communication Block Diagram
|
|
- Fiber termination details
|
|
- Fiber route plan
|
|
Substation Sheet Set
|
1
|
- Substation Communications Block Diagram
|
|
- Plan arrangement
|
|
- Sections and details
|
|
- Raceway plan and details
|
|
- Grounding plan and details
|
|
- Control enclosure layout
|
|
- 230kV Panels
|
|
- One-Line
|
|
- Foundation plan
|
|
- Structure Loading Diagrams
|
|
Document
|
Timing of First Delivery
|
Preliminary Operations and Maintenance Manual
|
3
|
Final Operation and Maintenance Manual
|
4
|
Record Drawings
|
4
|
|
TIMING OF DELIVERY
|
1
|
***
|
2
|
***
|
3
|
***
|
4
|
***
|
Monthly Report
|
|
for Month 20XX
|
|
Project #
|
|
Issued:
|
Month 20XX MONTHLY PROGRESS REPORT
|
|
A.
|
Summary of Major Activities Completed This Month
|
B.
|
Major Activities Planned in the Next Month
|
C.
|
Procurement Status and List
|
D.
|
Expediting Status List
|
E.
|
Schedule
|
F.
|
Quality Report
|
G.
|
Safety Report
|
H.
|
Problem Areas and Planned Corrections
|
I.
|
Punch List
|
J.
|
Pending and Approved Change Orders
|
K.
|
Drawing and Document Submittal Log
|
L.
|
Construction Photos
|
M.
|
Labor Report
|
N.
|
Permits
|
O.
|
Invoice and Payment Status
|
P.
|
Contract Notification
|
EXHIBIT A SUMMARY OF MAJOR ACTIVITIES COMPLETED THIS MONTH
|
|||||
(Summary Curves will be attached)
|
|||||
Construction
|
Quantity
|
Prev Month Total
|
Month Total
|
Total to Date
|
% Complete
|
Pier Installation
|
|
|
|
|
|
Fence Installation
|
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|
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|
|
Tracker Rows
|
|
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|
|
Drive Motor Pads
|
|
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|
|
|
Install Drive Motors
|
|
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|
|
|
Inverter Pads
|
|
|
|
|
|
DC Wiring Per Invert Pad (Home Run)
|
|
|
|
|
|
DC Wiring Per Invert Pad (String)
|
|
|
|
|
|
AC Wiring Per Invert Pad
|
|
|
|
|
|
Install Inverters/Xmfr
|
|
|
|
|
|
PV installation*
|
|
|
|
|
|
Substation Construction
|
|
|
|
|
|
Commissioning by Pad
|
|
|
|
|
|
Commissioning AC Collection System
|
|
|
|
|
|
Commissioning Substation
|
|
|
|
|
|
Commissioning SCADA, MDAS
|
|
|
|
|
|
Performance Testing
|
|
|
|
|
|
EXHIBIT B MAJOR ACTIVITIES PLANNED IN THE NEXT MONTH
|
|
Upcoming Activities
|
|
Pier Installation
|
|
Fence Installation
|
|
Tracker Rows
|
|
Drive Motor Pads
|
|
Install Drive Motors
|
|
Inverter Pads
|
|
DC Wiring Per Invert Pad
|
|
AC Wiring Per Invert Pad
|
|
Install Inverters/Xmfr
|
|
PV installation
|
|
Substation Construction
|
|
Commissioning by Area
|
|
Performance Testing
|
|
Security
|
|
Seeding and Mulching
|
|
EXHIBIT C PROCUREMENT STATUS AND LIST
|
|||||||||
Division
|
Description
|
Part#
|
Date Req
|
Lead Time
|
Date PO
|
Anticipated Delivery
|
Actual Delivery
|
Manufacturer
|
|
|
|
|
Onsite
|
In weeks
|
Issued
|
Date
|
Date
|
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|
EXHIBIT D EXPEDITING STATUS AND LIST
|
||
Date
|
Description
|
Notes
|
|
|
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|
|
EXHIBIT E SCHEDULE
|
PLEASE SEE ATTACHED P6 SCHEDULE
|
See attached construction schedule
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT F QUALITY REPORT
|
|
TRAINING UPDATE
|
|
INCOMING MATERIAL
|
|
INSPECTIONS UPDATE
|
|
|
|
|
|
MECHANICAL CIVIL UPDATE
|
|
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|
|
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|
|
NRC UPDATE
|
|
|
|
TRAVELLER STATUS
|
|
|
|
|
|
FINDER FIXER UPDATE
|
|
|
|
OTHER ISSUES
|
|
|
|
EXHIBIT G ACCIDENTS AND EVENTS
|
|||
Date
|
Incident
|
Resolution
|
Open/Closed
|
|
|
|
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|
|
EXHIBIT H PROBLEM AREAS AND PLANNED CORRECTIONS
|
|||
Date
|
Issue
|
Resolution
|
Open/Closed
|
|
|
|
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|
|
EXHIBIT I PUNCH LIST
|
||||||
REV
|
SYSTEM
|
DESCRIPTION OF ISSUE
|
PRIORITY
|
REPORY BY
|
COMMENT/STATUS
|
DATE CLOSED
|
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|
EXHIBIT J PENDING AND APPROVED CHANGE ORDERS
|
||
Date
|
Issue
|
Approved
|
|
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|
|
EXHIBIT K DRAWING AND DOCUMENT SUBMITTAL LOG
|
|||||
Type
|
Drawing #
|
Description
|
Date
|
Revision #
|
Author
|
|
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EXHIBIT L CONSTRUCTION PHOTOS
|
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EXHIBIT M LABOR REPORT
|
|
Period
|
Hours Worked
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Total hours worked to date:
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EXHIBIT N CONTRACT PERMITS
|
|||
Jurisdiction
|
Description
|
Date Submitted
|
Date Approved
|
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EXHIBIT O INVOICE AND PAYMENT STATUS
|
||||
Invoice Number
|
Date Submitted
|
Disputed/Undisputed
|
Date Paid
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Method of Payment
|
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EXHIBIT P Contract Notification Log
|
||||
Letter Number
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Date Submitted
|
Summary
|
Response Date
|
Status
|
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1.
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Highlights & Lowlights of Week Completed
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2.
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Focus for upcoming week
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3.
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Safety Stats
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a.
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Manhours
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b.
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Lost Time
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c.
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Recordables
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d.
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First Aids
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4.
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Table of Progress Completed aligned to Exhibit 9 Milestones
|
a.
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Qty completed for Period to Date
|
b.
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Qty & % of Total Inception to Date
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5.
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Three Week Look Ahead
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6.
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Change Request Log
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7.
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Owner Action Item Log
|
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As of
Previous Month
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For This Month (This Payment Application)
|
Total
After this Application for Payment
|
Original Contract Price
|
***
|
***
|
***
|
Contract Price to Date
|
***
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***
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***
|
Cumulative Milestone Payments
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***
|
***
|
***
|
Amount of Retainage withheld by Owner
|
|
***
|
|
Actual Amount Paid or to be Paid
|
***
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***
|
***
|
1.
|
Retentions.
|
2.
|
Extras for which the claimant has not received payment.
|
3.
|
The following progress payments for which the claimant has previously given a conditional waiver and release but has not received payment:
|
4.
|
Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover for work not compensated by the payment.
|
a)
|
Contractor shall maintain statutory limits for Workers' Compensation Insurance and Occupational Disease Insurance in accordance with state laws and any applicable federal law such as (e.g., FELA, USL&H and Jones Act), during the entire time that any full time persons are employed by them on the Site in connection with the Work. Part-time,
|
b)
|
Contractor shall maintain Employers' Liability Insurance with limits of not less than the following: bodily injury by accident - $*** each accident; bodily injury by disease - $*** policy limit; bodily injury by disease - $*** each employee.
|
(a)
|
Bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death;
|
(b)
|
Property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean-up costs, and the loss of use of tangible property that has not been physically injured or destroyed;
|
(c)
|
Defense costs associated with (a) and (b) above;
|
(d)
|
Coverage written on an occurrence form or claims-made form; however if coverage is written on a claims-made form, Contractor shall be required to maintain such coverage for 3 years following the Facility Substantial Completion Date; and
|
(e)
|
Coverage shall also include coverage for disposal and transportation of pollutants, if applicable and not provided by the Automobile Liability insurance. The definition of pollution conditions shall include damage to natural resources damage within the definition of property damage resulting from the Contractor's and Subcontractors' work/operations.
|
a)
|
The policy will include the interest of Contractor, Subcontractors of any tier (performing work at the Site), Owner and Financing Parties, to the extent of their interest under this Agreement, and is to be on an “all risk” basis subject to normal and customary policy exclusions, terms and conditions and subject to normal and customary sub-limits for similar size solar projects as described below, including earthquake, wind and flood losses.
|
b)
|
Coverage shall be written on a replacement cost basis and the limit of liability shall be the full replacement cost of the Work or the property in relation to such Blocks that have begun construction (including any Facility Equipment on the Site but not incorporated into the Project) but have not achieved Block Substantial Completion. The earthquake and flood sub-limit for each shall be not less than $*** each occurrence and annual aggregate (or when taken together with the AVSP 2 Facility, $***); provided, that, if Owner purchases or requires Contractor to purchase additional earthquake and flood coverage with higher sub-limits, Contractor shall pay the first $*** of the aggregate costs to obtain such additional coverage for both the Facility and the AVSP 2 Facility and Owner shall pay all other costs associated with obtaining and maintaining such additional coverage. Normal and customary sub-limits shall be provided for debris removal, demolition costs, expediting expenses, express freight, air freight and overtime. Inland transit and off-site storage will have sub-limits that satisfy the highest valued shipment or storage location, if not provided by the Transit and Ocean Marine Insurance or other Contractor procured insurance policies.
|
c)
|
Any required payment of deductibles for builders all-risk insurance shall be the responsibility of Contractor, provided however that deductibles under the builder's risk insurance shall not exceed $*** per occurrence except ***% of values at the time of loss for California earthquake subject to a minimum of $*** and a maximum of $*** and ***% of values at time of loss for high hazard flood zones subject to a minimum of $*** and maximum of $***.
|
d)
|
Contractor shall have obtained such BAR coverage on or prior to the date on which the exposure to the risk covered by the BAR coverage arises.
|
e)
|
The only permissible cancellation is as follows: (i) *** for non-payment of premium and (ii) material change in the risk profile of the Project after coverage commences.
|
f)
|
Coverage to include 50/50 hidden damage provision. Coverage to include testing coverage and resultant damage from faulty design, materials and workmanship (LEG 2 or equivalent).
|
g)
|
Coverage to include a sub-limit of $*** each occurrence for damage to existing property of Owner.
|
h)
|
Serial defects clause to be agreed by Owner and Financing Parties, if applicable.
|
i)
|
Owner and Financing Parties shall be included as additional named insured parties under the policy and Financing Parties will be a loss payee as required.
|
i)
|
The policy shall not allow any form of subrogation against Owner, Contractor, Subcontractors of any tier or Financing Parties except for (i) manufacturer or supplier of machinery, equipment or other property, whether named as an insured or not, for the cost of making good any loss or damage which said party has agreed to make good under a guarantee or warranty, whether express or implied, and (ii) architect or engineer, whether named as an insured or not, for any loss or damage arising out of the performance of professional services in their capacity as such and caused by an error, omission, deficiency or act of the architect or engineer, by any person employed by them or by any others whose acts they are legally liable.
|
k)
|
Prior to exposure to property damage for equipment and materials that will become a permanent part of the Project, builders risk coverage will be provided based on a loss limit and sub-limits that are approved by the Owner and Financing Parties.
|
(1)
|
Workers' Compensation/Employer's Liability
|
a)
|
Owner shall maintain statutory limits for Worker's Compensation Insurance and Occupational Disease Insurance in accordance with Applicable Law (e.g., FELA, USL&H and Jones Act), during the entire time that any persons are employed by Owner on the Site in connection with the Project.
|
b)
|
Owner shall maintain Employer's Liability Insurance with limits of not less than the following: bodily injury by accident - $*** each accident; bodily injury by disease - $*** policy limit; bodily injury by disease - $*** each employee.
|
(2)
|
Liability insurance
|
(3)
|
Operational All Risk insurance
|
(4)
|
All other insurance required by Applicable Law.
|
a)
|
all insurance may be carried through the worldwide insurance programs of Owner or Contractor or their respective Affiliates unless project specific policies are required.
|
b)
|
All liability insurance required to be maintained by Contractor
(except for workers' compensation/employer's liability and professional liability) shall be endorsed to the effect that Owner, the Owner's Affiliates, Financing Parties shall be included as additional insureds thereon. Commercial General Liability insurance additional insured endorsement shall be ISO Form CG 20 10/CG 2037 or other Owner approved equivalent. Contractor's third party liability policies shall provide for a severability of interest clause and waiver of subrogation will be provided on all Contractor's policies except Professional Liability. Contractor's BAR and Transit policies shall be primary and not excess to or contributing with any insurance or self-insurance maintained by Owner with regard to the Project. Contractor's other policies shall be primary and not excess to or contributing with any insurance or self-insurance maintained by Owner with regard to the Project except to the extent the loss is attributable to Owner's fault.
|
c)
|
In the event any insurance described herein (including the limits or deductibles thereof), other than insurance required by Applicable Law, shall not be available on commercially reasonable terms in the commercial insurance market for facilities having a similar risk profile, the Parties shall consent to waive the requirement to maintain such insurance to the extent the maintenance thereof is not so available on such terms, but the Parties shall continue to remain obligated to maintain any such insurance up to the level, if any, at which such insurance can be maintained on commercially reasonable terms in the commercial insurance market for facilities with a similar risk profile. This waiver is subject to Financing Parties' approval, provided, however, that if the Financing Parties do not provide such approval, Owner shall cover any premium and any other related out of pocket costs incurred by Contractor to obtain and maintain such insurance.
|
e)
|
Loss payable wording for the BAR and Transit/Ocean Marine insurance shall be reasonably acceptable to the Financing Parties, if applicable. Contractor will request its insurer(s) to attach 438 BFU or CP 1218 lender loss payable endorsement, its equivalent or other lender loss payable form approved by Owner's Financing Parties
|
g)
|
Unless specified otherwise in this exhibit no insurance shall be canceled with respect to the interest of the Financing Parties without *** (*** for nonpayment of premium) prior written notice given to the named insured party and the Financing Parties. Such named insured party shall within ***, provide such notice to the other Party under this Agreement as the case may be. In the event of cancellation due to nonpayment of premium, the Financing Parties, if any, shall have the right to make payments in order to keep insurance in force.
|
h)
|
All insurance required to be maintained in accordance with this exhibit shall be placed with financially sound and reputable insurers having an A.M Best rating of *** or better and with coverage forms reasonably acceptable to the Owner and if applicable, the Financing Parties.
|
i)
|
Contractor shall require Subcontractor's who perform Work at the Site to carry liability insurance (auto, commercial general, and excess/umbrella liability) and workers' compensation/employer's liability insurance in accordance with its usual business practice; provided, however, Contractor shall remain responsible and indemnify the Owner for any claims, lawsuits, losses and expenses included defense costs that exceed any of its Subcontractor's insurance limits or for uninsured claims or losses.
|
j)
|
All amounts of insurance coverage under this Agreement are required minimums. Owner and Contractor shall each be solely responsible for determining the appropriate amount of insurance, if any, in excess thereof. The required minimum amounts of insurance shall not operate as limits on recoveries available under this Agreement. Owner and Contractor will be responsible for any deductibles and uninsured losses that apply to their insurance requirements as shown in this exhibit.
|
k)
|
Evidence of Insurance. Evidence of insurance required hereunder in the form of certificates of insurance shall be furnished by each Party when required to be delivered no later than the date on which coverage is required to be in effect pursuant to this
Exhibit 15
, as applicable; provided, however, a draft copy of the BAR and Transit/Ocean Marine insurance (redacting any confidential or proprietary information) shall be provided to the Owner and the Financing Parties as soon as reasonably possible prior to the date such insurance is required to be in effect; and the final copy of such BAR insurance shall be provided promptly after
|
a.
|
The Capacity Test of such Block[s], described in
Exhibit 16A
of the Agreement, has been conducted, and the Final Test Results demonstrate that the Minimum Capacity Level for such Block[s] [has/have] been achieved according to the criteria set forth in
Exhibit 16A
of the Agreement.
|
b.
|
The Final Test Results of such Block[s], performed pursuant to
Exhibit 16A
of the Agreement, are attached hereto.
|
CONTRACTOR 2012 RATE SCHEDULE
|
||||
Hourly Labor Rates
|
||||
Job Title
|
Normal
|
Overtime
|
Holiday
|
|
Senior Project
Manager
|
***
|
***
|
***
|
|
Project Manager
|
***
|
***
|
***
|
|
Design Engineer
|
***
|
***
|
***
|
|
CAD Operator
|
***
|
***
|
***
|
|
EE/Mechanical
Engineer
|
***
|
***
|
***
|
|
Construction Manager
|
***
|
***
|
***
|
|
Administrative
Assistant
|
***
|
***
|
***
|
|
Principals / Officers / Project Director
|
***
|
***
|
***
|
|
Overhead and Profit Mark-up Percent
Without duplication of any amounts due and owing as Direct Costs under the Agreement:
|
||||
Vendor Materials
|
***
|
|||
SunPower Materials
|
***
|
|||
Subcontractor
|
***
|
|||
Labor
|
***
|
|||
Travel Expenses
|
***
|
|||
Other Expenses
|
***
|
|||
|
Rates for 2013 and onwards will be adjusted from 2012 prices by CPI (as defined in the O&M Agreement)
|
|||
With X=
***% for forced Changes (Example: Change Orders resulting from
|
Section 10.1
,
Section 10.2
,
Section 10.3
,
Section 11.4(d
) and
Section 19.4
)
***% for all other Change Orders (Example: Change Orders resulting from
Section 11.4(b
))
|
Inverters
|
Inverter Step-up transformers
|
Substation Main Power Transformers
|
|
***
|
***
|
***
|
|
|
|
|
|
Modules
|
Electrical Installation
|
Project Control System
|
Project Substation Design & Construction
|
***
|
***
|
***
|
***
|
|
|
|
***
|
Site Preparation/Grading
|
SCADA
|
Meteorological Stations
|
|
***
|
***
|
***
|
|
|
|
|
|
Date of Issue
: [________], 20__
|
Stated Expiration Date
: [___________]
|
B-1)
|
Beneficiary is authorized to make a drawing under this Letter of Credit in accordance with the terms of the EPC Agreement applicable to Beneficiary.
|
B-2)
|
The Letter of Credit will expire within *** of the date of this Drawing Request pursuant to a Notice of Non-Renewal and the Applicants have failed to provide a replacement letter of credit from an acceptable credit provider and satisfying the requirements of the EPC Agreement applicable to Beneficiary;
|
B-3)
|
[insert name of Issuing Bank] has delivered an Early Expiration Notice and such Early Expiration Notice has not been rescinded and the Applicant has not replaced the Letter of Credit;
|
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
|
|
|
|
Page
|
|
ARTICLE 1. CONTRACT INTERPRETATION AND EFFECTIVENESS
|
2
|
|
||
|
1.1
|
Rules of interpretation
|
2
|
|
|
1.2
|
Defined terms
|
3
|
|
|
1.3
|
Order of precedence
|
21
|
|
|
1.4
|
Entire agreement
|
21
|
|
|
1.5
|
No agency
|
21
|
|
|
1.6
|
Invalidity
|
22
|
|
|
1.7
|
Binding effect
|
22
|
|
|
1.8
|
Counterparts
|
22
|
|
|
1.9
|
Effective date
|
22
|
|
|
1.10
|
Time is of the Essence
|
22
|
|
|
1.11
|
Notice to Proceed
|
22
|
|
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
|
22
|
|
||
|
2.1
|
Representations and Warranties of Contractor
|
22
|
|
|
2.2
|
Representations and Warranties of Owner
|
24
|
|
ARTICLE 3. CONTRACTOR'S OBLIGATIONS
|
25
|
|
||
|
3.1
|
Performance of Work
|
25
|
|
|
3.2
|
Scope of Work
|
25
|
|
|
3.3
|
Properly Licensed; Sufficient Qualified Personnel
|
26
|
|
|
3.4
|
Utilities
|
26
|
|
|
3.5
|
Contract Documents
|
26
|
|
|
3.6
|
Record-Keeping
|
26
|
|
|
3.7
|
Materials and Equipment
|
27
|
|
|
3.8
|
Compliance and Cooperation With EITC Requirements, Applicable Laws, Applicable Permits Applicable Codes and Industry Standards
|
27
|
|
|
3.9
|
Contractor Acquired Permits; Other Approvals
|
27
|
|
|
3.10
|
Spare Parts
|
27
|
|
|
3.11
|
Construction Schedule; Progress Reports; Meetings
|
27
|
|
|
3.12
|
Transportation
|
29
|
|
|
3.13
|
Security
|
29
|
|
|
3.14
|
Safety; Quality Assurance
|
29
|
|
|
3.15
|
Clean-up
|
29
|
|
|
3.16
|
Suppliers and Subcontractors
|
30
|
|
|
3.17
|
Insurance
|
31
|
|
|
3.18
|
Contractor's Personnel
|
31
|
|
|
3.19
|
Hazardous Materials
|
31
|
|
|
3.20
|
Contractor Performance Security
|
31
|
|
|
3.21
|
Business Practices
|
31
|
|
|
3.22
|
Delay Response Plan
|
31
|
|
|
3.23
|
Project Labor Agreement; Employees
|
31
|
|
|
3.24
|
Notification
|
32
|
|
|
3.25
|
Site Conditions
|
33
|
|
|
3.26
|
Other Reports and Quality Control Documents
|
33
|
|
|
3.27
|
Construction Methods
|
33
|
|
|
3.28
|
Cooperation; Access
|
33
|
|
|
3.29
|
Business Ethics
|
33
|
|
|
3.30
|
Real Property Rights
|
34
|
|
|
3.31
|
***
|
34
|
|
|
3.32
|
***
|
34
|
|
|
3.33
|
***
|
34
|
|
ARTICLE 4. OWNER'S OBLIGATIONS
|
35
|
|
||
|
4.1
|
Access
|
35
|
|
|
4.2
|
Compliance with Laws and Permits
|
35
|
|
|
4.3
|
Full Notice to Proceed
|
35
|
|
|
4.4
|
Owner Exclusive Obligations
|
35
|
|
|
4.5
|
Owner's Representative
|
37
|
|
|
4.6
|
Insurance
|
37
|
|
|
4.7
|
Owner Payment Security
|
37
|
|
|
4.8
|
Cooperation
|
37
|
|
|
4.9
|
Extensions to Commercial Operation Deadline***
|
37
|
|
|
4.10
|
Enforcement and Termination of Leases
|
37
|
|
|
4.11
|
***
|
38
|
|
ARTICLE 5. REPRESENTATIVES; KEY PERSONNEL
|
38
|
|
||
|
5.1
|
Owner's Representative
|
38
|
|
|
5.2
|
Contractor's Key Personnel
|
38
|
|
|
5.3
|
Power to Bind
|
38
|
|
|
5.4
|
Notices
|
38
|
|
ARTICLE 6. INSPECTION
|
38
|
|
||
|
6.1
|
Inspection
|
38
|
|
|
6.2
|
***
|
39
|
|
ARTICLE 7. CONTRACT PRICE
|
39
|
|
||
|
7.1
|
Contract Price
|
39
|
|
ARTICLE 8. PAYMENT PROCESS & PERFORMANCE SECURITY
|
39
|
|
||
|
8.1
|
Payments
|
39
|
|
|
8.2
|
Milestone Assessment
|
40
|
|
|
8.3
|
Application for Payment
|
40
|
|
|
8.4
|
Lien Releases
|
40
|
|
|
8.5
|
Release of Liability
|
41
|
|
|
8.6
|
Overdue Payments
|
41
|
|
|
8.7
|
Disputed Payments
|
41
|
|
|
8.8
|
Performance Security
|
41
|
|
|
8.9
|
Payment Security
|
41
|
|
|
15.5
|
Capacity Test Rejection
|
53
|
|
|
15.6
|
Right to Use Temporary Equipment
|
53
|
|
|
15.7
|
***
|
53
|
|
ARTICLE 16. BLOCK SUBSTANTIAL COMPLETION; FACILITY SUBSTANTIAL COMPLETION
|
54
|
|
||
|
16.1
|
Generally
|
54
|
|
|
16.2
|
Block Substantial Completion Defined
|
54
|
|
|
16.3
|
Notice and Certificate of Block Substantial Completion
|
55
|
|
|
16.4
|
Facility Substantial Completion Defined
|
55
|
|
|
16.5
|
Notice and Certificate of Facility Substantial Completion
|
56
|
|
|
16.6
|
Punch List
|
57
|
|
ARTICLE 17. STAGES OF COMPLETION; DELAY AND CAPACITY LIQUIDATED DAMAGES; EITC AND DEPRECIATION LOSS
|
58
|
|
||
|
17.1
|
Block Delay Liquidated Damages
|
58
|
|
|
17.2
|
Guaranteed Facility Substantial Completion Delay Liquidated Damages
|
59
|
|
|
17.3
|
Block Capacity Liquidated Damages
|
59
|
|
|
17.4
|
Netting
|
60
|
|
|
17.5
|
Final Capacity Liquidated Damages
|
60
|
|
|
17.6
|
Liquidated Damages Reasonable
|
60
|
|
|
17.7
|
Energy and Revenues of the Project
|
61
|
|
|
17.8
|
EITC and Depreciation Loss
|
61
|
|
|
17.9
|
Enforceability
|
62
|
|
ARTICLE 18. FINAL COMPLETION
|
62
|
|
||
|
18.1
|
Generally
|
62
|
|
|
18.2
|
Certificate of Final Completion
|
63
|
|
|
18.3
|
Failure to Achieve Final Completion
|
63
|
|
ARTICLE 19. SUSPENSION OF THE WORK
|
63
|
|
||
|
19.1
|
Suspension for Non-Payment
|
63
|
|
|
19.2
|
Contractor Suspension
|
64
|
|
|
19.3
|
Extended Owner Suspension
|
64
|
|
|
19.4
|
Resumption of Work After Suspension
|
64
|
|
|
19.5
|
Costs and Schedule Relief for Contractor-Caused Suspension
|
65
|
|
ARTICLE 20. DEFAULTS AND REMEDIES
|
65
|
|
||
|
20.1
|
Contractor Events of Default
|
65
|
|
|
20.2
|
Owner Rights and Remedies
|
66
|
|
|
20.3
|
Owner Event of Default
|
68
|
|
|
20.4
|
Contractor Rights and Remedies
|
68
|
|
|
20.5
|
Termination Payment
|
69
|
|
|
20.6
|
Termination Right Not Exclusive
|
69
|
|
|
20.7
|
Termination Events for Extended Force Majeure.
|
70
|
|
|
20.8
|
***
|
70
|
|
ARTICLE 21. WARRANTIES
|
70
|
|
||
|
21.1
|
Sole Warranty
|
70
|
|
|
21.2
|
No Liens or Encumbrances
|
70
|
|
|
21.3
|
Defect Warranty
|
70
|
|
|
21.4
|
Warranty Period
|
71
|
|
|
21.5
|
Exclusions
|
71
|
|
|
21.6
|
Correction of Defects
|
72
|
|
|
21.7
|
Module Warranty and Performance Guaranty Agreement
|
74
|
|
|
21.8
|
Limitations On Warranties
|
74
|
|
ARTICLE 22. PUBLICITY
|
75
|
|
||
|
22.1
|
Signage
|
75
|
|
|
22.2
|
Press Releases
|
75
|
|
|
22.3
|
Contractor's Continued Access to Information and the Site.
|
75
|
|
ARTICLE 23. INSURANCE
|
76
|
|
||
|
23.1
|
Contractor's Insurance
|
76
|
|
|
23.2
|
Owner's Insurance
|
76
|
|
|
23.3
|
Ratings
|
76
|
|
|
23.4
|
Policy Requirements
|
76
|
|
|
23.5
|
No Limitation and Release
|
76
|
|
|
23.6
|
Reduction or Ceasing to be Maintained
|
76
|
|
|
23.7
|
Expiration
|
77
|
|
ARTICLE 24. INDEMNITY
|
77
|
|
||
|
24.1
|
Contractor Indemnity
|
77
|
|
|
24.2
|
Owner Indemnity
|
79
|
|
|
24.3
|
Patent Infringement and Other Indemnification Rights
|
80
|
|
|
24.4
|
Environmental Indemnification
|
81
|
|
|
24.5
|
Right to Defend
|
81
|
|
|
24.6
|
Defense to Indemnification Obligations
|
82
|
|
|
24.7
|
Comparative Fault
|
82
|
|
|
24.8
|
Survival of Indemnity Obligations
|
82
|
|
ARTICLE 25. CONFIDENTIALITY
|
83
|
|
||
|
25.1
|
Dissemination of Confidential Information
|
83
|
|
|
25.2
|
DAS System Information
|
84
|
|
|
25.3
|
Return of Confidential Information
|
84
|
|
ARTICLE 26. ASSIGNMENT
|
84
|
|
||
|
26.1
|
Prohibition on Assignment
|
84
|
|
|
26.2
|
Exceptions
|
85
|
|
|
26.3
|
Indemnitees; Successors and Assigns
|
85
|
|
Exhibit 8A
|
-
|
Form of Monthly Progress Report (attached separately)
|
Exhibit 8B
|
-
|
Form of Weekly Progress Report
|
Exhibit 9
|
-
|
Payment Schedule
|
Exhibit 10
|
-
|
Form of Application for Payment
|
Exhibit 11
|
-
|
Form of Contractor Performance Security
|
Exhibit 12
|
-
|
Form of Equity Contribution Agreement
|
Exhibit 13A
|
-
|
Form of Conditional Waiver and Release on Progress Payment
|
Exhibit 13A-1
|
-
|
***
|
Exhibit 13B
|
-
|
Form of Conditional Waiver and Release on Final Payment
|
Exhibit 14
|
-
|
Module Warranty
|
Exhibit 15
|
-
|
Insurance Requirements
|
Exhibit 16A
|
-
|
Capacity and Availability Test
|
Exhibit 16B
|
-
|
Performance Guarantee
|
Exhibit 16C
|
-
|
Installed DC Rating Survey
|
Exhibit 16D
|
-
|
Facility Demonstration Test
|
Exhibit 17
|
-
|
Form of Capacity Test Completion Certificate
|
Exhibit 18
|
-
|
Disputed Change Order Methodology
|
Exhibit 19
|
-
|
Form of Certificate of Block Substantial Completion
|
Exhibit 20
|
-
|
Form of Certificate of Facility Substantial Completion
|
Exhibit 21
|
-
|
Form of Certificate of Final Completion
|
Exhibit 22
|
-
|
Form of Safety Plan
|
Exhibit 23
|
-
|
Form of Quality Assurance Plan
|
Exhibit 24
|
-
|
Qualified Major Subcontractors
|
Exhibit 25
|
-
|
EITC and Depreciation Exhibit
|
Exhibit 26
|
-
|
Additional Work
|
Exhibit 27
|
-
|
Functional Test
|
Exhibit 28
|
-
|
Performance Guaranty Agreement
|
Exhibit 29
|
-
|
Right of First Offer
|
Exhibit 30
|
-
|
Spare Parts
|
Exhibit 31
|
-
|
Credit Support Requirements
|
Exhibit 32
|
-
|
Form of Acceptable Letter of Credit
|
Exhibit 33
|
-
|
***
|
(i)
|
[Reserved].
|
Owner
|
Solar Star California XX, LLC
c/o MidAmerican Renewables, LLC
1850 N. Central
Suite #1025
Phoenix, Arizona 85004
***
***
|
With a copy to (which shall not constitute notice):
|
|
|
Solar Star California XX, LLC
c/o MidAmerican Renewables, LLC
1850 N. Central
Suite #1025
Phoenix, Arizona 85004
***
***
|
Contractor:
|
SunPower Corporation, Systems
1414 Harbour Way, South
Richmond, California 94804 USA
***
***
|
SOLAR STAR CALIFORNIA XX, LLC
By: SunPower Corporation, Systems, its Managing Member
By:_________________________________________
Name: Charles D. Boynton
Title: Chief Financial Officer
|
|
|
SUNPOWER CORPORATION, SYSTEMS
By:_________________________________________
Name: Howard Wenger
Title: President and Chief Executive Officer
|
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
MM Condition Number
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
***
|
***
|
|
***
|
PPA Section
|
Task Summary
|
Timing
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Section
|
Task Summary
|
Deadline
|
Area of Responsibility
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Period
|
PV Modules Delivered AVSP I, MWdc
|
PV Modules Delivered AVSP II, MWdc
|
Total PV Modules Delivered, MWdc
|
Quarter % PV Modules Delivered
|
Total % PV Modules Delivered
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
Total
|
***
|
***
|
***
|
***
|
***
|
Title
|
Contractor Key Personnel Assigned
|
Contractor's Representative - AVSP II
|
***
|
Project Director - AVSP II
|
***
|
Site Director - AVSP II
|
***
|
Engineering Manager - AVSP II
|
***
|
Environmental Permit Manager - AVSP II
|
***
|
Safety Manager - AVSP II
|
***
|
Commissioning/Testing Manager - AVSP II
|
***
|
|
Permit
|
Applicable Agency
|
1.
|
Encroachment Permits
|
Kern County
|
2.
|
Vacations of public road and public access easements listed on Schedule 2.7(v) to MIPA
|
Kern County
|
3.
|
Landscaping Plan Approval
|
Kern County
|
4.
|
Pre-Construction Surveys for Migratory Birds and Raptors, Burrowing Owl, American Badger and Desert Kit Fox, Active Bat Maternity Roosts, Coast Horned Lizard and Silvery Legless Lizard and Desert Tortoise
|
Kern County
|
5.
|
Decommissioning Plan
|
Kern County
|
6.
|
Dedication of Alternative Energy Corridor
|
Kern County
|
7.
|
Approval of Solar Panel Support/Foundation Structures
|
Kern County
|
8.
|
Fugitive Dust Emissions Control Plan
|
Eastern Kern County Air Pollution Control District
|
9.
|
Drainage Plan
|
Kern County
|
10.
|
Water Supply and Sewage Disposal Plan
|
Kern County
|
11.
|
Fire Safety Plan (during construction)
|
Kern County Fire Department
|
12.
|
Memorandum of Understanding and Agreement for Performance of Zoning Ordinance and Mitigation Measures as Environmental Restrictions
|
Kern County
|
13.
|
Hazardous Waste Identification Number (during construction)
|
US Environmental Protection Agency
|
14.
|
Oil Spill Prevention Control and Countermeasure Plan (during construction)
|
US Environmental Protection Agency
|
|
Permit
|
Applicable Agency
|
15.
|
General Permit for Discharge of Storm Water Associated with Construction Activities (during construction)
|
State Water Resources Control Board
|
16.
|
Septic System Permits (if not a part of building permits)
|
Kern County
|
17.
|
Grading Permit
|
Kern County
|
18.
|
Building/Construction Permits
|
Kern County
|
19.
|
Archaeological Research Design and Treatment Plan waiver
|
Kern County Planning and Community Development Department
|
|
Permit
|
Applicable Agency
|
1.
|
Final Environmental Impact Report (SCH# 2010031022) for the Antelope Valley Solar Project (approved August 2, 2011; NOD filed August 24, 2011)
|
Kern County Board of Supervisors
|
2.
|
Water Supply Assessment (approved August 2, 2011)
|
Kern County Board of Supervisors
|
3.
|
Resolution No. 2011-193 approving Specific Plan Amendment Case Nos. 17, 2 and 3 (Map Nos. 232, 232-23 and 233) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
4.
|
Resolution No. 2011-194 approving amendments to Zoning Map Nos. 232 and 232-23 (Zone Change Case Nos. 34 and 5) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
5.
|
Ordinance No. G-8179 amending Zoning Map No. 232 (Zone Change Case No. 34) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
6.
|
Ordinance No. G-8180 amending Zoning Map No. 232-23 (Zone Change Case No. 5) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
7.
|
Resolution No. 2011-195 approving Tentative Cancellation of Williamson Act Contracts (approved August 2, 2011; corrected September 4, 2012)
|
Kern County Board of Supervisors
|
8.
|
Resolution No. 2011-196 approving Conditional Use Permit Nos. 28, 2 and 8 (Map Nos. 232, 232-23 and 233) (approved August 2, 2011)
|
Kern County Board of Supervisors
|
9.
|
Addendum to the Environmental Impact Report for the Antelope Valley Solar Project (approved March 13, 2012; NOD filed March 22, 2012)
|
Kern County Board of Supervisors
|
10.
|
Resolution No. 2012-036 approving amendments to Zoning Map No. 233 (Zone Change Case No. 15) (approved March 13, 2012)
|
Kern County Board of Supervisors
|
I.
|
GENERAL SCOPE
|
1.1
|
Exhibit 7
lists the documentation to be provided by Contractor to Owner. In order to facilitate the Owner's right to review Contractor Submittals in accordance with the terms of this Agreement, Contractor shall provide such documentation in accordance with the submission requirements set forth in this
Exhibit 7
. Transmittals for all submittals are to clearly indicate Owner's name, Contractor's project number, Owner's project number, how they are being sent, and the reason for the submittal. The transmittal should include a clear, concise description of all documents enclosed. Documentation by drawing number, revision number, document or drawing title, and date should be indicated, if applicable. Distributions to other parties are to be shown on the face of the transmittal.
|
1.2
|
Contractor Submittals identified below will be transferred electronically to Owner via Contractor's document management system, E-Builder. Contractor will send to Owner, through E-builder, an email with a hyperlink to an online server where Owner may download documents for its review from E-Builder. Electronically transmitted documents are submitted as portable document format (*.pdf) files. Documents that cannot be transmitted electronically shall be submitted to Owner as hard copy via overnight mail. The date of the email notification or the date indicated on the delivery receipt for overnight mail shall be the contractual delivery date for the Contractor Submittals.
|
1.3
|
Contractor shall submit to Owner for information all Contractor Submittals and modified Contractor Submittals. All documents prepared by Contractor shall be in English and shall bear the Project name AVSP II and a full title block containing a unique identification number, revision number, source and type of document and descriptive title. Each document shall clearly indicate the applicable status of the document (e.g. Preliminary, for Information, for Review, for Permit, for Bid, for Bid Addendum, for Construction, Design Bulletin, and Record Drawing incorporating all as-built comments) as well as the revision date. Contractor shall make reasonable efforts to obtain subcontractor submittals that follow these same guidelines.
|
1.4
|
Contractor shall make reasonable efforts that project drawings be prepared in such a way that photo-reduction to 11”x17” size shall result in a legible and useable drawing. Particular attention shall be paid in this respect to selection of fonts. A scale bar shall be included to permit use following photo-reduction on drawings where where scaling is applicable.
|
1.5
|
Where possible, and for Contractor Submittals generated after the Effective Date, one electronic copy of Contractor and Subcontractor generated drawings and documents (the list of such drawings and documents to be determined by Owner after
|
1.5.1
|
The measurement system shall be US customary units for all construction and permit drawings.
|
1.5.2
|
Vendor drawings for electrical equipment shall be US customary units or SI units. Vendor drawings shall clearly identify unit system.
|
1.5.3
|
Drawings
: Copies shall be submitted in electronic form (portable document format (*.pdf). All final drawings/document submittals that are reasonably likely to require updating over the life of the Project shall additionally be submitted in AutoCad to facilitate such future updates by Owner.
|
1.5.4
|
Documents
: one electronic copy shall be provided in portable document format (*.pdf) files for written text such as letters, specifications, procedures, calculations (not including Subcontractor proprietary calculations), manuals, lists, etc.
|
1.5.5
|
Drawings and Documents
: Contractor shall make reasonable efforts to secure electronically formatted drawings and documents from all Subcontractors. When electronic formatting as noted in Sections 1.5.3 and 1.5.4, is not obtainable due to Subcontractor policies or procedures then Contractor shall have such materials scanned and submitted in portable document format (*.pdf).
|
1.6
|
Subcontractor drawings and documentation shall also be submitted electronically to Owner as described above. Owner may make comments to Contractor on Subcontractor drawings and documents if items are found not to be in compliance with the requirements of this Agreement. Owner's review period shall be *** for procurement specifications, *** for all other Contractor Submittals. Owner will reasonably cooperate with Contractor to expedite reviews as necessary. Any document not returned to Contactor in the allowable period shall be deemed accepted with no comment or approved if submitted for approval. If Owner and Contractor shall not agree as to whether Contractor is in compliance with the requirements of this Agreement, this dispute shall be resolved in accordance with Article 28.
|
II.
|
DESIGN REVIEW BY OWNER
|
2.1
|
Owner and Contractor agree to participate in an accelerated Design Review prior to contract Effective Date. Owner and Contractor agree to accelerated resolution of Design Review comments.
|
2.2
|
The purpose of the Design Review is to afford Owner the opportunity to ensure that Contractor's design and final selection of Equipment is in accordance with this Agreement.
|
2.3
|
The Design Review will consist of Owner review of the permit documents Contractor has submitted to Kern and Los Angeles counties for approval.
|
2.4
|
Design Review shall not commence without Owner or Owner's representative.
|
2.5
|
The Design Review shall be held at Contractor facilities in Richmond, California.
|
2.6
|
All Design Review participants shall pay their own travel, lodging and other expenses.
|
2.7
|
Contractor and Owner shall provide access to all relevant technical subject matter experts during the Design Review.
|
2.8
|
Design Review Documents will consist of the permitting and supporting documents, which include but are not limited to:
|
2.8.1
|
Array layout with major equipment locations
|
2.8.1.1
|
Control Point Schedule with equipment names and locations for PCS stations, motors and controllers, and MDAS tower locations in solar fields.
|
2.8.2
|
Electrical Design Documents
|
2.8.2.1
|
Physical Drawings showing all equipment locations, conduit interfaces, and trenching.
|
2.8.2.2
|
AC single line(s)
|
2.8.2.3
|
DC single line(s)
|
2.8.2.4
|
Schematic and Wiring Diagrams
|
2.8.2.5
|
Grounding Diagrams
|
2.8.2.6
|
Preliminary PCS layout
|
2.8.2.7
|
Cable Schedule (if not contained on one-line diagrams)
|
2.8.3
|
Preliminary grading plan
|
2.8.4
|
Preliminary storm water plan
|
2.8.5
|
Structural Design Documents
|
2.8.7.1
|
Drawings of all equipment foundations showing all equipment outline requirements including anchor bolts that are to be used in the design of the foundations
|
2.8.7.2
|
Structural calculations detailing design criteria, equipment loads, and material selection
|
2.8.6
|
SCADA, Instrumentation, and Controls Design Documents
|
2.8.6.1
|
Communication block diagrams for substations and solar fields
|
2.8.6.2
|
Fiber Termination Details
|
2.8.6.3
|
SCP (SCADA Control Panel) DI Wiring Diagram
|
2.8.6.4
|
MDAS Schematics and Instrumentation Diagrams
|
2.8.6.5
|
SCADA Server Termination Details & Schematic
|
[2.8.6.6
|
Flow block diagrams and State machine diagrams
|
2.8.7
|
Site logistics plan
|
2.8.8
|
Specification list
|
2.8.9
|
Installation specification
|
2.8.10
|
Purchase specifications for:
|
2.8.10.1
|
AC Station (includes inverter)
|
2.8.10.2
|
34.5 kV collection system switchgear
|
2.8.10.3
|
Medium voltage cable
|
2.8.11
|
Electrical and structural calculations and studies required for permit (not including Subcontractor proprietary calculations)
|
2.8.12
|
Substation grounding calculations to support sizing
|
2.9
|
Contractor shall provide the supporting information upon which the Project design is based, including, but not limited to the results of survey, geotechnical report and addenda, and manufacturers' data.
|
2.10
|
During the Design Review, Owner may make comments to drawings and documents if items are found not to be in compliance with the requirements of this Agreement. Contractor shall be obligated to resolve any such compliance issues in a timely
|
III.
|
DELIVERABLES
|
3.1
|
All other drawings or data listed herein or requested by Owner and provided by Contractor may be considered for information and record purposes. Owner may comment on such drawings and data to ensure compliance with the Agreement.
|
3.2
|
For Owner's records, Contractor shall develop and submit a comprehensive documentation/design package to Owner consisting of, but not limited to, the documents and drawings as prescribed in this Section III. The Design Review and Owner's review are covered in Section II.
|
3.2.1
|
Comprehensive Project documentation submittal schedule
|
3.2.2
|
Drawings:
|
·
|
Site plan/arrangement
|
·
|
Site grading and drainage
|
·
|
Site restoration and finishing
|
·
|
Soil stabilization, erosion, and sediment control
|
·
|
Foundation plans and details
|
·
|
Structural plans, details, and elevations
|
·
|
General plant arrangement, building arrangement, and hazardous area location (if any) drawings; and civil, and steel standard drawings
|
·
|
Array layout
|
·
|
Electrical/Instrument diagrams including electrical one-line, substation electrical three-line, and instrument diagrams
|
·
|
Power and control wiring, including AC and DC systems. Details showing protection against galvanic corrosion, if applicable. (i.e. Aluminum to copper transition)
|
·
|
AC Station drawings
|
·
|
String wiring diagrams
|
.
|
Grounding plans
|
·
|
Relay tripping and control schematics and/or logic diagrams
|
·
|
Control system logic diagrams
|
·
|
SCADA system configuration drawings/diagrams
|
·
|
Fencing plan
|
·
|
All drawings issued/used for construction
|
·
|
Record drawings (including as-built comments) shall be submitted in AutoCad format no later than date set forth in Exhibit 1. All drawings submitted to Owner by Contractor shall be updated to reflect on-site changes and will be marked “ Record Drawings”.
|
3.2.3
|
Other Required Documentation:
|
·
|
Operations and maintenance manuals with respect to each Block shall be submitted no later than the date set forth in the Table Of Contractor Submittals shown at the end of this Exhibit 7. If a piece of equipment was “wholesale” changed out during the construction process for whatever reason the contractor shall provide updated maintenance and technical documentation to account for the change.
|
·
|
System descriptions
|
·
|
System turnover packages
|
·
|
SCADA graphics/configuration guidelines
|
·
|
Drawings that show equipment, instrument, device and SCADA schematics containing content mutually agreed upon by Owner and Contractor
|
·
|
Subcontractor drawings, documentation, and manuals required for Owner review
|
·
|
Schedules, including engineering, procurement, and construction (EPC) activities; integrated AVSP II schedules, and progress reports required pursuant to this Agreement.
|
·
|
Quality assurance and quality control program manuals
|
·
|
Project Health and Safety Plan attached as Exhibit 22 to this Agreement
|
·
|
Commissioning plan as required under this Agreement
|
·
|
Commissioning logs shall be submitted as required under Exhibit [16] to this Agreement
|
·
|
Performance test procedures/reports as required under the Agreement
|
·
|
Instructions for handling, storage, and pre-operational maintenance of Facility Equipment
|
·
|
Site and shop inspection and testing plans or requirements
|
·
|
Original Equipment Manufacturer's quality assurance (QA) documentation as provided by Manufacturer
|
·
|
Procurement specifications for all Equipment supplied by Major Subcontractors/ installation areas
|
·
|
Power transformer data sheets, as applicable
|
·
|
Instrument data sheets
|
·
|
Training program and manuals
|
·
|
Required Manuals
|
·
|
Contractor / Acquired Permits and Subcontractor permits
|
·
|
Meeting minutes for Owner/Contractor meetings
|
·
|
Electrical and structural calculations and studies submitted to permit agencies
|
·
|
Other non-proprietary engineering calculations applicable to the design and construction of the Project
|
IV.
|
FINAL DRAWINGS
|
4.1
|
Contractor shall provide Record Drawings for the entire Project, consisting of mechanical, electrical, and civil drawings, general arrangements, instrumentation diagrams, one-line, three-line, schematics, wiring, cable tray, routed conduit, and duct banks, and other drawings as mutually agreed upon by Owner and Contractor. Documents shall be re-drafted as necessary to incorporate final information. Mark-up sketches, referencing, and other field marking techniques are not acceptable as final Record Drawings. Contractor shall prepare “conformed to construction record” of the original drawings or data sheets.
|
4.2
|
During construction, Contractor shall maintain on file in the field reasonably current as-built redline mark-ups of all drawings and data sheets to agree with actual work undertaken.
|
4.3
|
Record drawings shall be issued by Contractor as the next sequential revision from previous releases. The revision block shall state Record Drawings. All clouds, revision diamonds, and other interim control marking shall be removed. All information listed as “later” or “hold” shall be completed or deleted. The conformed to construction record drawings shall be clear and readable in full size, and where possible, also in 11”x17” size reduction.
|
4.4
|
Major Subcontractors' drawings shall be conformed to construction records to reflect actual installed configuration. These Subcontractor drawings shall be in sufficient detail to indicate the kind, size, arrangement, weight of each component, and operation of component materials and devices, the external connections, anchorages, and supports required; the dimensions needed for installation, and correlation with other materials and equipment. Final Subcontractor's drawings shall be bound in the
|
4.5
|
Contractor shall provide one hard copy set of Record Drawings to Owner, in 12”x18” size.
|
V.
|
LISTS
|
5.1
|
All lists that will be Issued for Record shall be furnished in electronic format.
|
VI.
|
SOFTWARE REQUIREMENTS
|
6.1
|
All final drawings /document submittals that are reasonably likely to require updating over the life of the Project shall additionally be submitted in native electronic format to facilitate such future updates by Owner. Site-specific drawings provided in native format shall include the project master plan, the project single line, and trenching plans. Product-specific drawings will be provided in portable document format (*.pdf).
Where possible, Contractor Submittals lists and manuals shall be provided with electronic search engines to facilitate ease of use, as commercially available.
|
6.2
|
Where possible, Contractor Submittals lists shall be provided in electronic format such as Microsoft Excel or approved alternative to facilitate integration into Owner's existing applications. Owner will provide Contractor with reasonable formatting information as required.
|
6.3
|
Contractor shall provide final electronic submittals in the following software formats:
|
Software Function
|
Software Name
|
Word processing
|
Microsoft Word
|
Lists
|
Microsoft Excel
|
Database
|
Microsoft Access
|
Drawings
|
AutoCAD and AutoDesk Civil 3D
|
Project Schedules
|
Portable document format (*.pdf) produced from Microsoft Project or Primavera native format
|
Scannable Material
|
Portable document format (*.pdf)
|
SCADA / PLC Programming /
|
|
Configuration
|
By OEM (subject to IP restrictions)
|
VII.
|
DATA/DRAWINGS REQUIRED AFTER AWARD OF CONTRACT
|
7.1
|
General
|
7.1.1
|
For equipment being procured after the Effective Date, Contractor shall submit the specifications for each equipment package for Owner review for compliance with this agreement.
|
7.1.2
|
Contractor shall facilitate the exchange of information in order to demonstrate to Owner Contractor's plan to meet the schedule requirements of this Agreement.
|
7.1.3
|
For any drawing or design document developed or significantly updated after the Design Review, Contractor shall submit to Owner for review to fully establish that all parts shall comply with this Agreement. Owner review shall follow guidelines and timelines per agreement. Owner may make comments to drawings and documents if items are found not to be in compliance with the requirements of this Agreement. Contractor shall be obligated to resolve any such compliance issues in a timely manner and resubmit to Owner the Contractor drawings and documents reflecting such resolutions.
|
7.1.4
|
If Owner review is not completed on drawings covered in 7.1.3 and per this agreement, and should Contractor proceed with manufacture of Facility Equipment or construction prior to Owner review of such drawings, Contractor does so at its own risk.
|
7.1.5
|
Contractor shall be responsible for any discrepancies, errors, or omissions on the drawings supplied by Contractor or Subcontractors.
|
7.1.6
|
All drawings and data, including changes thereto, shall conform to the requirements of this Agreement.
|
Document
|
Timing of First Delivery
|
Sheet Sets
|
|
—
|
|
Civil Sheet Set
|
1
|
- Site Development Plan
|
|
- Monuments and Benchmark Plan
|
|
- Miscellaneous Foundations
|
|
- Road and Driveway sections
|
|
- Demolition Plan
|
|
- Grading, road layout and fencing plans
|
|
- Erosion control plan
|
|
Structural Sheet Set
|
2
|
- Operation and Maintenance Building Arrangement and Foundation Concept
|
|
Electrical Sheet Set
|
1
|
- Cable Schedule
|
|
- Construction Power One-Line
|
|
- MV One-Line
|
|
- Grounding plan and details
|
|
- Underground cable plans
|
|
- Direct buried cable sections
|
|
- Ductbank Sections
|
|
- 34.5kV Plans & Profiles
|
|
- 34.5kV Assemblies
|
|
- 34.5kV Structure Details
|
|
SCADA Sheet Set
|
1
|
- Communication Block Diagram
|
|
- Fiber termination details
|
|
- Fiber route plan
|
|
Substation Sheet Set
|
1
|
- Substation Communications Block Diagram
|
|
- Plan arrangement
|
|
- Sections and details
|
|
- Raceway plan and details
|
|
- Grounding plan and details
|
|
- Control enclosure layout
|
|
- 230kV Panels
|
|
- One-Line
|
|
- Foundation plan
|
|
Document
|
Timing of First Delivery
|
Testing Procedures
|
3
|
Preliminary Operations and Maintenance Manual
|
3
|
Final Operation and Maintenance Manual
|
4
|
Record Drawings
|
4
|
|
TIMING OF DELIVERY
|
1
|
***
|
2
|
***
|
3
|
***
|
4
|
***
|
1414 Harbour Way South
|
SunPower Energy Systems, Corporation
|
P: 1.510.540.0550
|
Richmond, CA 94804 USA
|
www.sunpowercorp.com
|
F: 1.510.540.0552
|
Monthly Report
|
|
for Month 20XX
|
|
Project #
|
|
Issued:
|
Month 20XX MONTHLY PROGRESS REPORT
|
|
A.
|
Summary of Major Activities Completed This Month
|
B.
|
Major Activities Planned in the Next Month
|
C.
|
Procurement Status and List
|
D.
|
Expediting Status List
|
E.
|
Schedule
|
F.
|
Quality Report
|
G.
|
Safety Report
|
H.
|
Problem Areas and Planned Corrections
|
I.
|
Punch List
|
J.
|
Pending and Approved Change Orders
|
K.
|
Drawing and Document Submittal Log
|
L.
|
Construction Photos
|
M.
|
Labor Report
|
N.
|
Permits
|
O.
|
Invoice and Payment Status
|
P.
|
Contract Notification
|
EXHIBIT A SUMMARY OF MAJOR ACTIVITIES COMPLETED THIS MONTH
|
|||||
(Summary Curves will be attached)
|
|||||
Construction
|
Quantity
|
Prev Month Total
|
Month Total
|
Total to Date
|
% Complete
|
Pier Installation
|
|
|
|
|
|
Fence Installation
|
|
|
|
|
|
Tracker Rows
|
|
|
|
|
|
Drive Motor Pads
|
|
|
|
|
|
Install Drive Motors
|
|
|
|
|
|
Inverter Pads
|
|
|
|
|
|
DC Wiring Per Invert Pad (Home Run)
|
|
|
|
|
|
DC Wiring Per Invert Pad (String)
|
|
|
|
|
|
AC Wiring Per Invert Pad
|
|
|
|
|
|
Install Inverters/Xmfr
|
|
|
|
|
|
PV installation*
|
|
|
|
|
|
Substation Construction
|
|
|
|
|
|
Commissioning by Pad
|
|
|
|
|
|
Commissioning AC Collection System
|
|
|
|
|
|
Commissioning Substation
|
|
|
|
|
|
Commissioning SCADA, MDAS
|
|
|
|
|
|
Performance Testing
|
|
|
|
|
|
EXHIBIT B MAJOR ACTIVITIES PLANNED IN THE NEXT MONTH
|
|
Upcoming Activities
|
|
Pier Installation
|
|
Fence Installation
|
|
Tracker Rows
|
|
Drive Motor Pads
|
|
Install Drive Motors
|
|
Inverter Pads
|
|
DC Wiring Per Invert Pad
|
|
AC Wiring Per Invert Pad
|
|
Install Inverters/Xmfr
|
|
PV installation
|
|
Substation Construction
|
|
Commissioning by Area
|
|
Performance Testing
|
|
Security
|
|
Seeding and Mulching
|
|
EXHIBIT C PROCUREMENT STATUS AND LIST
|
|||||||||
Division
|
Description
|
Part#
|
Date Req
|
Lead Time
|
Date PO
|
Anticipated Delivery
|
Actual Delivery
|
Manufacturer
|
|
|
|
|
Onsite
|
In weeks
|
Issued
|
Date
|
Date
|
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EXHIBIT D EXPEDITING STATUS AND LIST
|
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Date
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Description
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Notes
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EXHIBIT E SCHEDULE
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PLEASE SEE ATTACHED P6 SCHEDULE
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See attached construction schedule
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EXHIBIT F QUALITY REPORT
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TRAINING UPDATE
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INCOMING MATERIAL
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INSPECTIONS UPDATE
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MECHANICAL CIVIL UPDATE
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NRC UPDATE
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TRAVELLER STATUS
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FINDER FIXER UPDATE
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OTHER ISSUES
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EXHIBIT G ACCIDENTS AND EVENTS
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Date
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Incident
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Resolution
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Open/Closed
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EXHIBIT H PROBLEM AREAS AND PLANNED CORRECTIONS
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Date
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Issue
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Resolution
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Open/Closed
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EXHIBIT I PUNCH LIST
|
||||||
REV
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SYSTEM
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DESCRIPTION OF ISSUE
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PRIORITY
|
REPORY BY
|
COMMENT/STATUS
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DATE CLOSED
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EXHIBIT J PENDING AND APPROVED CHANGE ORDERS
|
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Date
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Issue
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Approved
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EXHIBIT K DRAWING AND DOCUMENT SUBMITTAL LOG
|
|||||
Type
|
Drawing #
|
Description
|
Date
|
Revision #
|
Author
|
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EXHIBIT L CONSTRUCTION PHOTOS
|
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EXHIBIT M LABOR REPORT
|
|
Period
|
Hours Worked
|
|
|
|
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|
|
Total hours worked to date:
|
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|
|
EXHIBIT N CONTRACT PERMITS
|
|||
Jurisdiction
|
Description
|
Date Submitted
|
Date Approved
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT O INVOICE AND PAYMENT STATUS
|
||||
Invoice Number
|
Date Submitted
|
Disputed/Undisputed
|
Date Paid
|
Method of Payment
|
|
|
|
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|
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|
|
EXHIBIT P Contract Notification Log
|
||||
Letter Number
|
Date Submitted
|
Summary
|
Response Date
|
Status
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.
|
Highlights & Lowlights of Week Completed
|
2.
|
Focus for upcoming week
|
3.
|
Safety Stats
|
a.
|
Manhours
|
b.
|
Lost Time
|
c.
|
Recordables
|
d.
|
First Aids
|
4.
|
Table of Progress Completed aligned to Exhibit 9 Milestones
|
a.
|
Qty completed for Period to Date
|
b.
|
Qty & % of Total Inception to Date
|
5.
|
Three Week Look Ahead
|
6.
|
Change Request Log
|
7.
|
Owner Action Item Log
|
|
As of
Previous Month
|
For This Month (This Payment Application)
|
Total
After this Application for Payment
|
Original Contract Price
|
***
|
***
|
***
|
Contract Price to Date
|
***
|
***
|
***
|
Cumulative Milestone Payments
|
***
|
***
|
***
|
Amount of Retainage withheld by Owner
|
|
***
|
|
Actual Amount Paid or to be Paid
|
***
|
***
|
***
|
1.
|
Retentions.
|
2.
|
Extras for which the claimant has not received payment.
|
3.
|
The following progress payments for which the claimant has previously given a conditional waiver and release but has not received payment:
|
4.
|
Contract rights, including (A) a right based on rescission, abandonment, or breach of contract, and (B) the right to recover for work not compensated by the payment.
|
a)
|
Contractor shall maintain statutory limits for Workers' Compensation Insurance and Occupational Disease Insurance in accordance with state laws and any applicable federal law such as (e.g., FELA, USL&H and Jones Act), during the entire time that any full time
|
b)
|
Contractor shall maintain Employers' Liability Insurance with limits of not less than the following: bodily injury by accident - $*** each accident; bodily injury by disease - $*** policy limit; bodily injury by disease - $*** each employee.
|
(a)
|
Bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death;
|
(b)
|
Property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, clean-up costs, and the loss of use of tangible property that has not been physically injured or destroyed;
|
(c)
|
Defense costs associated with (a) and (b) above;
|
(d)
|
Coverage written on an occurrence form or claims-made form; however if coverage is written on a claims-made form, Contractor shall be required to maintain such coverage for 3 years following the Facility Substantial Completion Date; and
|
(e)
|
Coverage shall also include coverage for disposal and transportation of pollutants, if applicable and not provided by the Automobile Liability insurance. The definition of pollution conditions shall include damage to natural resources damage within the definition of property damage resulting from the Contractor's and Subcontractors' work/operations.
|
a)
|
The policy will include the interest of Contractor, Subcontractors of any tier (performing work at the Site), Owner and Financing Parties, to the extent of their interest under this Agreement, and is to be on an “all risk” basis subject to normal and customary policy exclusions, terms and conditions and subject to normal and customary sub-limits for similar size solar projects as described below, including earthquake, wind and flood losses.
|
b)
|
Coverage shall be written on a replacement cost basis and the limit of liability shall be the full replacement cost of the Work or the property in relation to such Blocks that have begun construction (including any Facility Equipment on the Site but not incorporated into the Project) but have not achieved Block Substantial Completion. The earthquake and flood sub-limit for each shall be not less than $*** each occurrence and annual aggregate (or when taken together with the AVSP 1 Facility, $***); provided, that, if Owner purchases or requires Contractor to purchase additional earthquake and flood coverage with higher sub-limits, Contractor shall pay the first $*** of the aggregate costs to obtain such additional
|
c)
|
Any required payment of deductibles for builders all-risk insurance shall be the responsibility of Contractor, provided however that deductibles under the builder's risk insurance shall not exceed $*** per occurrence except ***% of values at the time of loss for California earthquake subject to a minimum of $*** and a maximum of $*** and ***% of values at time of loss for high hazard flood zones subject to a minimum of $*** and maximum of $***.
|
d)
|
Contractor shall have obtained such BAR coverage on or prior to the date on which the exposure to the risk covered by the BAR coverage arises.
|
e)
|
The only permissible cancellation is as follows: (i) *** for non-payment of premium and (ii) material change in the risk profile of the Project after coverage commences.
|
f)
|
Coverage to include 50/50 hidden damage provision. Coverage to include testing coverage and resultant damage from faulty design, materials and workmanship (LEG 2 or equivalent).
|
g)
|
Coverage to include a sub-limit of $*** each occurrence for damage to existing property of Owner.
|
h)
|
Serial defects clause to be agreed by Owner and Financing Parties, if applicable.
|
i)
|
Owner and Financing Parties shall be included as additional named insured parties under the policy and Financing Parties will be a loss payee as required.
|
i)
|
The policy shall not allow any form of subrogation against Owner, Contractor, Subcontractors of any tier or Financing Parties except for (i) manufacturer or supplier of machinery, equipment or other property, whether named as an insured or not, for the cost of making good any loss or damage which said party has agreed to make good under a guarantee or warranty, whether express or implied, and (ii) architect or engineer, whether named as an insured or not, for any loss or damage arising out of the performance of professional services in their capacity as such and caused by an error, omission, deficiency or act of the architect or engineer, by any person employed by them or by any others whose acts they are legally liable.
|
k)
|
Prior to exposure to property damage for equipment and materials that will become a permanent part of the Project, builders risk coverage will be provided based on a loss limit and sub-limits that are approved by the Owner and Financing Parties.
|
(1)
|
Workers' Compensation/Employer's Liability
|
a)
|
Owner shall maintain statutory limits for Worker's Compensation Insurance and Occupational Disease Insurance in accordance with Applicable Law (e.g., FELA, USL&H and Jones Act), during the entire time that any persons are employed by Owner on the Site in connection with the Project.
|
b)
|
Owner shall maintain Employer's Liability Insurance with limits of not less than the following: bodily injury by accident - $*** each accident; bodily injury by disease - $*** policy limit; bodily injury by disease - $*** each employee.
|
(3)
|
Operational All Risk insurance
|
(4)
|
All other insurance required by Applicable Law.
|
a)
|
all insurance may be carried through the worldwide insurance programs of Owner or Contractor or their respective Affiliates unless project specific policies are required.
|
b)
|
All liability insurance required to be maintained by Contractor
(except for workers' compensation/employer's liability and professional liability) shall be endorsed to the effect that Owner, the Owner's Affiliates, Financing Parties shall be included as additional insureds thereon. Commercial General Liability insurance additional insured endorsement shall be ISO Form CG 20 10/CG 2037 or other Owner approved equivalent. Contractor's third party liability policies shall provide for a severability of interest clause and waiver of subrogation will be provided on all Contractor's policies except Professional Liability. Contractor's BAR and Transit policies shall be primary and not excess to or contributing with any insurance or self-insurance maintained by Owner with regard to the Project. Contractor's other policies shall be primary and not excess to or contributing with any insurance or self-insurance maintained by Owner with regard to the Project except to the extent the loss is attributable to Owner's fault.
|
c)
|
In the event any insurance described herein (including the limits or deductibles thereof), other than insurance required by Applicable Law, shall not be available on commercially reasonable terms in the commercial insurance market for facilities having a similar risk profile, the Parties shall consent to waive the requirement to maintain such insurance to the extent the maintenance thereof is not so available on such terms, but the Parties shall continue to remain obligated to maintain any such insurance up to the level, if any, at which such insurance can be maintained on commercially reasonable terms in the commercial insurance market for facilities with a similar risk profile. This waiver is subject to Financing Parties' approval, provided, however, that if the Financing Parties do not provide such approval, Owner shall cover any premium and any other related out of pocket costs incurred by Contractor to obtain and maintain such insurance.
|
e)
|
Loss payable wording for the BAR and Transit/Ocean Marine insurance shall be reasonably acceptable to the Financing Parties, if applicable. Contractor will request its insurer(s) to attach 438 BFU or CP 1218 lender loss payable endorsement, its equivalent or other lender loss payable form approved by Owner's Financing Parties
|
g)
|
Unless specified otherwise in this exhibit no insurance shall be canceled with respect to the interest of the Financing Parties without *** (*** for nonpayment of premium) prior written
|
h)
|
All insurance required to be maintained in accordance with this exhibit shall be placed with financially sound and reputable insurers having an A.M Best rating of *** or better and with coverage forms reasonably acceptable to the Owner and if applicable, the Financing Parties.
|
i)
|
Contractor shall require Subcontractor's who perform Work at the Site to carry liability insurance (auto, commercial general, and excess/umbrella liability) and workers' compensation/employer's liability insurance in accordance with its usual business practice; provided, however, Contractor shall remain responsible and indemnify the Owner for any claims, lawsuits, losses and expenses included defense costs that exceed any of its Subcontractor's insurance limits or for uninsured claims or losses.
|
j)
|
All amounts of insurance coverage under this Agreement are required minimums. Owner and Contractor shall each be solely responsible for determining the appropriate amount of insurance, if any, in excess thereof. The required minimum amounts of insurance shall not operate as limits on recoveries available under this Agreement. Owner and Contractor will be responsible for any deductibles and uninsured losses that apply to their insurance requirements as shown in this exhibit.
|
k)
|
Evidence of Insurance. Evidence of insurance required hereunder in the form of certificates of insurance shall be furnished by each Party when required to be delivered no later than the date on which coverage is required to be in effect pursuant to this
Exhibit 15
, as applicable; provided, however, a draft copy of the BAR and Transit/Ocean Marine insurance (redacting any confidential or proprietary information) shall be provided to the Owner and the Financing Parties as soon as reasonably possible prior to the date such insurance is required to be in effect; and the final copy of such BAR insurance shall be provided promptly after such insurance coverage is bound but not later than *** after coverage is required to be in effect. Not later than *** of the date of delivery of the certificates of insurance hereunder or the expiration date of the policy if for a term of more than ***, and not later than each *** or policy renewal date thereafter, each Party shall deliver copies of the certificate of insurance of the renewal insurance policies.
|
1.1
|
The Guaranteed Block Capacity for the Facility is defined as:
|
1.2
|
The Guaranteed Facility Capacity for the Facility is defined as:
|
1.3
|
The Guaranteed Capacity applies under the following guarantee reference conditions (GRC) which is the expected point where the inverter clips at its nameplate rating:
|
1.3.1
|
System is in a new and clean condition
|
1.3.2
|
Plane of array irradiance:
|
1.3.3
|
Ambient temperature: 20C
|
1.3.4
|
Cell temperature:
|
1.3.5
|
Wind speed: 1 m/sec
|
1.3.6
|
Inverters operating at a unity power factor set-point.
|
1.3.7
|
Measurement uncertainty to be determined based on *** and applied to the measured value as a tolerance when calculating the Block Capacity Test values to determine if the Guaranteed Capacity has been achieved.
|
1.3.7
|
Non-recoverable degradation applied at a rate of *** to be applied for purposes of the Module degradation warranty.
|
2.1
|
The guaranteed availability for each Block is defined as:
|
a.
|
The Capacity Test of such Block[s], described in
Exhibit 16A
of the Agreement, has been conducted, and the Final Test Results demonstrate that the Minimum Capacity Level for such Block[s] [has/have] been achieved according to the criteria set forth in
Exhibit 16A
of the Agreement.
|
b.
|
The Final Test Results of such Block[s], performed pursuant to
Exhibit 16A
of the Agreement, are attached hereto.
|
CONTRACTOR 2012 RATE SCHEDULE
|
||||
Hourly Labor Rates
|
||||
Job Title
|
Normal
|
Overtime
|
Holiday
|
|
Senior Project
Manager
|
***
|
***
|
***
|
|
Project Manager
|
***
|
***
|
***
|
|
Design Engineer
|
***
|
***
|
***
|
|
CAD Operator
|
***
|
***
|
***
|
|
EE/Mechanical
Engineer
|
***
|
***
|
***
|
|
Construction Manager
|
***
|
***
|
***
|
|
Administrative
Assistant
|
***
|
***
|
***
|
|
Principals / Officers / Project Director
|
***
|
***
|
***
|
|
Overhead and Profit Mark-up Percent
Without duplication of any amounts due and owing as Direct Costs under the Agreement:
|
||||
Vendor Materials
|
***
|
|||
SunPower Materials
|
***
|
|||
Subcontractor
|
***
|
|||
Labor
|
***
|
|||
Travel Expenses
|
***
|
|||
Other Expenses
|
***
|
|||
|
Rates for 2013 and onwards will be adjusted from 2012 prices by CPI (as defined in the O&M Agreement)
|
|||
With X=
|
|
***% for forced Changes (Example: Change Orders resulting from Section 10.1, Section 10.2, Section 10.3, Section 11.4(d) and Section 19.4)
***% for all other Change Orders (Example: Change Orders resulting from Section 11.4(b)) |
Inverters
|
Inverter Step-up transformers
|
Substation Main Power Transformers
|
|
***
|
***
|
***
|
|
|
|
|
|
Modules
|
Electrical Installation
|
Project Control System
|
Project Substation Design & Construction
|
***
|
***
|
***
|
***
|
|
|
|
***
|
Site Preparation/Grading
|
SCADA
|
Meteorological Stations
|
|
***
|
***
|
***
|
|
|
|
|
|
[Name of Issuing Bank]
[Address of Issuing Bank]
[City, State of Issuing Bank]
|
Letter Of Credit No. [_______]
Irrevocable Standby Letter Of Credit
|
|
|
Date of Issue
: [________], 20__
|
Stated Expiration Date
: [___________]
|
|
|
Applicant:
SunPower Corporation, Systems
1414 Harbour Way South
Richmond, CA 94804 |
Stated Amount
: USD $[____________]
|
|
|
Beneficiaries
:
Solar Star California XIX, LLC
c/o MidAmerican Solar, LLC 1850 N. Central Avenue, Suite 1025 Phoenix, Arizona 85004 Attn: President |
|
|
|
and
|
|
|
|
Solar Star California XX, LLC
c/o MidAmerican Solar, LLC
1850 N. Central Avenue, Suite 1025 Phoenix, Arizona 85004 Attn: President |
|
|
|
|
Credit Available With: [__________]
|
B-1)
|
Beneficiary is authorized to make a drawing under this Letter of Credit in accordance with the terms of the EPC Agreement applicable to Beneficiary.
|
B-2)
|
The Letter of Credit will expire within *** of the date of this Drawing Request pursuant to a Notice of Non-Renewal and the Applicants have failed to provide a replacement letter of credit from an acceptable credit provider and satisfying the requirements of the EPC Agreement applicable to Beneficiary;
|
B-3)
|
[insert name of Issuing Bank] has delivered an Early Expiration Notice and such Early Expiration Notice has not been rescinded and the Applicant has not replaced the Letter of Credit;
|
TOTAL GAS & POWER USA, SAS
|
|||
By:
|
/s/ Arnaud Chaperon
|
|
|
|
Name:
|
Arnaud Chaperon
|
|
|
Title:
|
President
|
|
TOTAL S.A.
|
|||
By:
|
/s/ Bernard Clement
|
|
|
|
Name:
|
Bernard Clement
|
|
|
Title:
|
Senior Vice President, Business Operations, New Energies
|
|
|
|
||
SUNPOWER CORPORATION
|
|||
By:
|
/s/ Thomas H. Werner
|
|
|
|
Name:
|
Thomas H. Werner
|
|
|
Title:
|
Chief Executive Officer
|
Subsidiary Name
|
Jurisdiction
|
Pluto Acquisition Company LLC
|
Delaware
|
SunPower Corporation Malta Holdings Limited
|
Malta
|
SunPower Corporation, Systems
|
Delaware
|
SunPower North America, LLC
|
Delaware
|
SunPower Philippines Manufacturing Ltd.
|
Cayman Islands
|
SunPower Systems Sarl
|
Switzerland
|
SunPower Technology Ltd.
|
Cayman Islands
|
Tenesol SAS
|
France
|
Company
|
dba
|
SunPower Corporation
|
SunPower Solar Corporation (Texas), Inc.
|
SunPower Corporation
|
SPWR Solar Corporation
|
SunPower Corporation
|
SPWR Solar
|
SunPower Corporation
|
SPWR Energy
|
Subsidiary
|
dba
|
SunPower Corporation, Systems
|
SunPower Energy Systems (Texas), Inc.
|
SunPower Corporation, Systems
|
SunPower Energy Corporation
|
(1)
|
Registration Statement (Form S-3 Nos. 333-140198, 333-140272, and 333-153409) of SunPower Corporation, and
|
(2)
|
Registration Statement (Form S-8 Nos. 333-130340, 333-140197, 333-142679, 333-150789, 333-172477, 333-178027, and 333-179833) of SunPower Corporation;
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/S/ THOMAS H. WERNER
|
|
President, Chief Executive Officer and Director
|
|
February 22, 2013
|
Thomas H. Werner
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/S/ CHARLES D. BOYNTON
|
|
Executive Vice President and Chief Financial Officer
|
|
February 22, 2013
|
Charles D. Boynton
|
|
(Principal Financial Officer)
|
|
|
|
|
|
|
|
/S/ ERIC BRANDERIZ
|
|
Senior Vice President, Corporate Controller and Principal Accounting Officer
|
|
February 22, 2013
|
Eric Branderiz
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
/S/ ARNAUD CHAPERON
|
|
Director
|
|
February 19, 2013
|
Arnaud Chaperon
|
|
|
|
|
|
|
|
|
|
/S/ BERNARD CLEMENT
|
|
Director
|
|
February 19, 2013
|
Bernard Clement
|
|
|
|
|
|
|
|
|
|
/S/ DENIS GIORNO
|
|
Director
|
|
February 19, 2013
|
Denis Giorno
|
|
|
|
|
|
|
|
|
|
/S/ THOMAS R. MCDANIEL
|
|
Director
|
|
February 19, 2013
|
Thomas R. McDaniel
|
|
|
|
|
|
|
|
|
|
/S/ JEROME SCHMITT
|
|
Director
|
|
February 22, 2013
|
Jerome Schmitt
|
|
|
|
|
|
|
|
|
|
/S/ HUMBERT DE WENDEL
|
|
Director
|
|
February 20, 2013
|
Humbert de Wendel
|
|
|
|
|
|
|
|
|
|
/S/ PATRICK WOOD III
|
|
Director
|
|
February 19, 2013
|
Patrick Wood III
|
|
|
|
|
|
1
|
I have reviewed this Annual Report on Form 10-K of SunPower Corporation;
|
2
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4
|
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
5
|
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
/S/ THOMAS H. WERNER
|
|
Thomas H. Werner
|
|
President, Chief Executive Officer and Director
|
|
(Principal Executive Officer)
|
|
|
1
|
I have reviewed this Annual Report on Form 10-K of SunPower Corporation;
|
2
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4
|
The registrant's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
5
|
The registrant's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
/S/ CHARLES D. BOYNTON
|
|
Charles D. Boynton
|
|
Executive Vice President and Chief Financial Officer
|
|
(Principal Executive Officer)
|
|
|
|
/S/ THOMAS H. WERNER
|
|
Thomas H. Werner
|
|
President, Chief Executive Officer and Director
|
|
(Principal Executive Officer)
|
|
|
|
/S/ CHARLES D. BOYNTON
|
|
Charles D. Boynton
|
|
Executive Vice President and Chief Financial Officer
|
|
(Principal Financial Officer)
|
|