SPWR 06242015 S-8
As filed with the Securities and Exchange Commission on June 24, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SunPower Corporation
(Exact name of registrant as specified in its charter)
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Delaware | 94-3008969 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
77 Rio Robles San Jose, California | 95134 |
(Address of Principal Executive Offices) | (Zip Code) |
SunPower Corporation 2015 Omnibus Incentive Plan
(Full title of the plan)
Lisa Bodensteiner, Esq.
Executive Vice President and General Counsel
SunPower Corporation
77 Rio Robles
San Jose, California 95134
(Name and address of agent for service)
(408) 240-5500
(Telephone number, including area code, of agent for service)
Copies to:
Martin A. Wellington, Esq.
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, California 94025
(650) 752-2018
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.
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Large accelerated filer x | Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Title of Securities To Be Registered | | Amount To Be Registered (1) | | Proposed Maximum Offering Price Per Share (2) | | Proposed Maximum Aggregate Offering Price (2) | | Amount of Registration Fee (3) |
Common Stock, par value $0.001 per share | | 7,565,182 | | $ | 31.74 | | $ | 240,118,876.68 | | $ | 27,901.81 |
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(1) | Represents shares of common stock, par value $0.001 per share (the “Common Stock”), of SunPower Corporation, a Delaware corporation (the “Registrant”), approved for issuance pursuant to the SunPower Corporation 2015 Omnibus Incentive Plan. Each share of Common Stock includes a right to purchase shares of a participating series of the Registrant’s preferred stock. In the event of a stock split, stock dividend or similar transaction involving the Registrant’s Common Stock, the number of shares registered hereby shall automatically be adjusted in accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”).
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(2) | Estimated solely for purposes of calculating the amount of the registration fee, calculated pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low sales prices of the Common Stock on June 23, 2015 as reported on the Nasdaq Global Select Market.
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(3) | Pursuant to Rule 457(p) under the Securities Act, the Registrant hereby offsets the registration fee required in connection with this Registration Statement by $20,556.14, consisting of $14,764.69 previously paid in connection with the registration of 3,646,077 shares of Common Stock for issuance pursuant to awards granted under the Third Amended and Restated SunPower Corporation 2005 Stock Incentive Plan (the “2005 Plan”) on the registration statement on Form S-8 (File No. 333-195608) filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on April 30, 2014 and $5,791.45 previously paid in connection with the registration of 3,577,028 shares of Common Stock for issuance pursuant to awards granted under the 2005 Plan on the registration statement on Form S-8 (File No. 333-186821) filed by the Registrant with the SEC on February 22, 2013 (collectively, the “Prior Registration Statements”). None of the shares registered on the Prior Registration Statements are subject to outstanding awards or have been issued. Accordingly, the Registrant is filing post-effective amendments to the Prior Registration Statements to terminate the offerings thereunder and to deregister all of the shares registered on the Prior Registration Statements contemporaneously with the filing of this Registration Statement. |
EXPLANATORY NOTE
This Registration Statement (the “Registration Statement”) on Form S-8 is being filed for the purpose of registering shares of common stock, par value $0.001 per share (the “Common Stock”) of SunPower Corporation (the “Registrant”), that may be issued to participants under the SunPower Corporation 2015 Omnibus Incentive Plan (the “2015 Plan”), which was approved by the Registrant’s stockholders on June 3, 2015. The 2015 Plan replaces the Third Amended and Restated SunPower Corporation 2005 Stock Incentive Plan (the “2005 Plan”). No further awards will be granted under the 2005 Plan, and outstanding awards granted under the 2005 Plan continue to be governed by its terms.
The maximum number of shares of Common Stock reserved and available for issuance under the 2015 Plan as of the date hereof is 7,565,182 shares, all of which were previously available for issuance but not subject to outstanding awards under the 2005 Plan (the “Carryover Shares”) as of June 3, 2015, the effective date of the 2015 Plan.
This Registration Statement hereby registers the Carryover Shares for potential issuance pursuant to awards granted under the 2015 Plan. Post-effective amendments to certain of the registration statements on Form S-8 (File Nos. 333-195608 and 333-186821) relating to the 2005 Plan (the “Prior Registration Statements”) are being filed contemporaneously with this Registration Statement to terminate the offerings thereunder and to deregister all of the shares of Common Stock registered on the Prior Registration Statements which are not subject to outstanding awards granted under the 2005 Plan and have not been issued. Additional shares reserved for issuance under the 2005 Plan may become available for issuance in the future under the 2015 Plan as the result of the expiration, forfeiture, cancellation or termination of awards outstanding under the 2005 Plan (other than by exercise or settlement of the awards in vested and non-forfeitable shares), and any such additional shares will be included in the shares reserved for issuance under the 2015 Plan and may be registered from time to time on one or more future Form S-8 Registration Statements.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plan covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. | Incorporation of Documents by Reference. |
The following documents have been filed by the Registrant with the Securities and Exchange Commission (the “SEC” or “Commission”) and are incorporated herein by reference:
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(a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 28, 2014 filed February 24, 2015; |
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(b) | The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 29, 2015 filed April 30, 2015; |
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(c) | The Registrant’s Current Reports on Form 8-K filed on January 30, 2015, March 11, 2015, March 20, 2015, April 9, 2015, June 5, 2015 and June 17, 2015; |
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(d) | The description of the Registrant’s Common Stock included in the Registrant’s Form 8-A (File No. 001-34166) filed on November 16, 2011, the Registrant’s Form 8-A/A filed on May 10, 2012, and any amendment or report the Registrant may file with the SEC for the purpose of updating such description; and |
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(e) | The description of the rights issued pursuant to the Amended and Restated Rights Agreement, dated as of September 29, 2008 (as amended), between the Registrant and Computershare Trust Company, N.A., as rights agent, included in the Registrant’s Form 8-A (File No. 001-34166) filed on August 25, 2008, the Registrant’s Form 8-A/As filed on May 6, 2011, June 15, 2011, November 16, 2011 and May 10, 2012, and any amendment or report the Registrant may file with the SEC for the purpose of updating such description. |
All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment indicating that all securities offered have been sold or deregistering all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.
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Item 4. | Description of Securities |
Not applicable.
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Item 5. | Interests of Named Experts and Counsel |
None.
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Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnification to officers, directors and other corporate agents. The Registrant’s restated certificate of incorporation (the “Certificate”) and amended and restated by-laws (the “Bylaws”) provide that the Registrant will indemnify its directors and executive officers to the fullest extent permitted by the DGCL, which prohibits the Certificate from limiting the liability of the Registrant’s directors for the following:
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• | breach of the director’s duty of loyalty to the corporation or its stockholders; |
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• | acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
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• | unlawful payment of dividends or unlawful stock purchases or redemptions; and |
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• | any transaction from which a director derived an improper personal benefit. |
If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of the Registrant’s directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. The Certificate does not eliminate a director’s duty of care and, in appropriate circumstances, equitable remedies, such as injunctive or other forms of nonmonetary relief, remain available under Delaware law. This provision also does not affect a director’s responsibilities under any other laws, such as the federal securities laws or other state or federal laws. Under the Certificate and the Bylaws, the Registrant is empowered to enter into indemnification agreements with its directors, officers, employees and other agents and to purchase insurance on behalf of any person whom the Registrant is required or permitted to indemnify.
In addition to the indemnification required in the Certificate and the Bylaws, the Registrant has entered into agreements to indemnify its directors and executive officers, and other employees as determined by the Registrant’s board of directors, against expenses and liabilities to the fullest extent permitted by Delaware law. These agreements also provide, subject to certain exceptions, for indemnification for related expenses including, among others, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. The Registrant believes that the provisions in the Certificate, the Bylaws and the indemnification agreements are necessary to attract and retain qualified persons as
directors and executive officers. The Registrant also maintains directors’ and officers’ liability insurance to cover liabilities its directors and officers may incur in connection with their services to the Registrant.
The foregoing is only a general summary of certain aspects of Delaware law and the Registrant’s Certificate and Bylaws dealing with indemnification of directors and officers, and does not purport to be complete. It is qualified in its entirety by reference to the detailed provisions of Section 145 of the DGCL and the Certificate and Bylaws.
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Item 7. | Exemption from Registration Claimed |
Not applicable.
See the attached Exhibit Index, which is incorporated herein by reference.
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(a) | The undersigned Registrant hereby undertakes: |
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(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
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(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
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(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Item 9 do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference herein.
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(2) | That, for the purpose of determining any liability under the Securities Act, each such post effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on this 24th day of June, 2015.
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| SUNPOWER CORPORATION |
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| By: | /s/ Charles D. Boynton |
| Name: | Charles D. Boynton |
| Title: | Executive Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Thomas H. Werner, Charles D. Boynton, Eric Branderiz and Lisa Bodensteiner, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully and for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
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Signature | | Title | | Date |
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/s/ Thomas H. Werner | | President, Chief Executive Officer and Chairman of the Board of Directors | | June 24, 2015 |
Thomas H. Werner | | (Principal Executive Officer) | | |
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/s/ Charles D. Boynton | | Executive Vice President and Chief Financial Officer | | June 24, 2015 |
Charles D. Boynton | | (Principal Financial Officer) | | |
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/s/ Eric Branderiz | | Senior Vice President, Corporate Controller and Chief Accounting Officer | | June 24, 2015 |
Eric Branderiz | | (Principal Accounting Officer) | | |
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/s/ Arnaud Chaperon | | Director | | June 24, 2015 |
Arnaud Chaperon | | | | |
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/s/ Bernard Clement | | Director | | June 24, 2015 |
Bernard Clement | | | | |
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/s/ Denis Giorno
| | Director | | June 24, 2015 |
Denis Giorno | | | | |
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/s/ Catherine A. Lesjak
| | Director | | June 24, 2015 |
Catherine A. Lesjak | | | | |
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/s/ Thomas R. McDaniel
| | Director | | June 24, 2015 |
Thomas R. McDaniel | | | | |
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/s/ Jean-Marc Otero del Val
| | Director | | June 24, 2015 |
Jean-Marc Otero del Val | | | | |
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/s/ Humbert de Wendel
| | Director | | June 24, 2015 |
Humbert de Wendel | | | | |
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/s/ Patrick Wood III
| | Director | | June 24, 2015 |
Patrick Wood III | | | | |
Exhibit Index
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Exhibit Number | | Description of Exhibit |
5.1* | | Opinion of Davis Polk & Wardwell LLP |
10.1* | | SunPower Corporation 2015 Omnibus Incentive Plan and forms of agreements thereunder
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23.1* | | Consent of Ernst & Young LLP, independent registered public accounting firm
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23.2* | | Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
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24.1* | | Powers of Attorney (included on the signature page to this Registration Statement)
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* Filed herewith.