Exhibit 10.1
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF
MERGER
This First Amendment to Agreement
and Plan of Merger (this “ First Amendment
”) is made and entered into as of this 21st day of December
2006 by and among SunPower Corporation, a Delaware corporation
(“ Parent ”), and PowerLight Corporation,
a California corporation (the “ Company
”).
BACKGROUND
A. Parent, Pluto Acquisition Company
LLC, a Delaware limited liability company and a direct wholly owned
subsidiary of Parent, the Company, and Thomas L. Dinwoodie, as the
representative of certain shareholders of the Company, entered into
that certain Agreement and Plan of Merger dated as of
November 15, 2006 (the “ Merger Agreement
”).
B. Section 6.3 of the Merger
Agreement provides that prior to the adoption of the Merger
Agreement and the approval of the Merger by the shareholders of the
Company, the Merger Agreement may be amended by a written
instrument signed on behalf of Parent and the Company.
C. The shareholders of the Company
have not yet adopted the Merger Agreement and approved the
Merger.
D. In accordance with
Section 6.3 of the Merger Agreement, Parent and the Company
have agreed to amend the Merger Agreement and certain exhibits to
the Merger Agreement as set forth herein.
STATEMENT OF
AGREEMENT
The parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions . Unless otherwise defined herein, all
capitalized terms used herein have the meanings given to them in
the Merger Agreement.
ARTICLE II
AMENDMENTS TO THE MERGER
AGREEMENT AND EXHIBITS
2.01 Section 2.3(b) of Merger
Agreement . The last
sentence of Section 2.3(b) of the Merger Agreement is hereby
amended and superseded in all respects by the provisions of this
First Amendment. As amended and restated, the last sentence of
Section 2.3(b) of the Merger Agreement reads in its
entirety:
“No consent, approval, order
or authorization of, or registration, declaration or filing with,
any government, any court, tribunal, arbitrator, administrative
agency, commission or other governmental official, authority or
instrumentality, in each case whether domestic or foreign, any
stock exchange or similar self-regulatory organization or any
quasi-governmental or private body exercising any regulatory,
taxing or other governmental or quasi-governmental authority (each
a “ Governmental Entity ”) is required by
or with respect to the Company or any of its Subsidiaries in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby, except for
(w) the filing of the Certificate of Merger, the Agreement of
Merger and the CA Certificate of Merger, (x) such filings as
may be required under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 (the “ HSR Act ”) and any
required foreign antitrust filing, (y) applicable requirements
if any, of the Exchange Act, state securities or “blue
sky” laws (the “ Blue Sky Laws ”),
and (z) if necessary in accordance with Section 4.5(d),
the issuance of the Merger Permit (as defined in
Section 4.5(d)(ii)), or, if necessary in accordance with
Section 4.5(e), the approval by the Securities and Exchange
Commission (the “ SEC
”).”
2.02 Section 2.27 of Merger Agreement
. Section 2.27 of the Merger
Agreement is hereby amended and superseded in all respects by the
provisions of this First Amendment. As amended and restated,
Section 2.27 reads in its entirety:
“ Disclosure . None of
the information supplied or to be supplied by or on behalf of the
Company or any of its Subsidiaries for inclusion or incorporation
by reference in the Private Placement Information Statement (as
defined in Section 4.5(c)), if a Private Placement Information
Statement is mailed to the shareholders of the Company in
accordance with Section 4.5(c), will, at the time that the
Private Placement Information Statement is mailed to the
shareholders of the Company, at the time of the Company
Shareholders’ Meeting or as of the Effective Time, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. None of the information
supplied or to be supplied by or on behalf of the Company or any of
its Subsidiaries for inclusion or incorporation by reference in the
Merger Permit Information Statement (as defined in
Section 4.5(d)(i)), if a Merger Permit Information Statement
is mailed to the shareholders of the Company in accordance with
Section 4.5(d)(iii), will, at the time that the Merger Permit
Information Statement is mailed to the shareholders of the Company,
at the time of the Company Shareholders’ Meeting or as of the
Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading. None
of the information supplied or to be supplied by or on behalf of
the Company or any of its Subsidiaries for inclusion or
incorporation by reference in the Proxy Statement (as defined in
Section 4.5(e)(ii)), if a Proxy Statement is mailed to the
shareholders of the Company in accordance with
Section 4.5(e)(x), will, at the time that the Proxy Statement
is mailed to the
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shareholders of the Company, at the
time of the Company Shareholders’ Meeting or as of the
Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading. None
of the information supplied or to be supplied by or on behalf of
the Company or any of its Subsidiaries for inclusion or
incorporation by reference in the Registration Statement (as
defined in Section 4.5(e)(i)), if a Registration Statement is
filed with the SEC in accordance with Section 4.5(e)(ii),
will, at the time that the Registration Statement is filed with the
SEC or at the time it becomes effective under the Securities Act of
1933, as amended (the “ Securities Act
”), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
Notwithstanding the foregoing, no representation or warranty is
made by the Company with respect to statements made or incorporated
by reference in the Private Placement Information Statement, the
Merger Permit Information Statement, the Proxy Statement or the
Registration Statement based on information supplied by or on
behalf of Parent for inclusion or incorporation by reference in the
Private Placement Information Statement, the Merger Permit
Information Statement, the Proxy Statement or the Registration
Statement.”
2.03 Section 3.3(b) of Merger
Agreement . The last
sentence of Section 3.3(b) of the Merger Agreement is hereby
amended and superseded in all respects by the provisions of this
First Amendment. As amended and restated, the last sentence of
Section 3.3(b) of the Merger Agreement reads in its
entirety:
“No consent, approval, order
or authorization of, or registration, declaration or filing with,
any Governmental Entity is required by or with respect to Parent
and Merger Sub in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated
hereby, except for (A) the filing of the Certificate of
Merger, the Agreement of Merger and the CA Certificate of Merger,
(B) such filings as may be required under the HSR Act and any
required foreign antitrust filing, (C) applicable requirements
if any, of the Securities Act, the Exchange Act, state securities
or the Blue Sky Laws, and (D) if necessary in accordance with
Section 4.5(d), the issuance of the Merger Permit by the
California Commissioner, or, if necessary in accordance with
Section 4.5(e), the approval by the SEC in connection with the
Registration Statement and the Parent Information Statement (as
defined in Section 4.13(b)).”
2.04 Section 3.12 of Merger Agreement
. Section 3.12 of the Merger
Agreement is hereby amended and superseded in all respects by the
provisions of this First Amendment. As amended and restated,
Section 3.12 reads in its entirety:
“ Disclosure . None of
the information supplied or to be supplied by or on behalf of
Parent or any of its Subsidiaries for inclusion or incorporation by
reference in the Private Placement Information Statement, if a
Private Placement Information Statement is mailed to the
shareholders of the Company in accordance with
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Section 4.5(d), will, at the
time that the Private Placement Information Statement is mailed to
the shareholders of the Company, at the time of the Company
Shareholders’ Meeting or as of the Effective Time, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. None of the information
supplied or to be supplied by or on behalf of Parent or any of its
Subsidiaries for inclusion or incorporation by reference in the
Merger Permit Information Statement, if a Merger Permit Information
Statement is mailed to the shareholders of the Company in
accordance with Section 4.5(e)(iii), will, at the time that
the Merger Permit Information Statement is mailed to the
shareholders of the Company, at the time of the Company
Shareholders’ Meeting or as of the Effective Time, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. None of the information
supplied or to be supplied by or on behalf of Parent or any of its
Subsidiaries for inclusion or incorporation by reference in the
Proxy Statement, if a Proxy Statement is mailed to the shareholders
of the Company in accordance with Section 4.5(f)(x), will, at
the time that the Proxy Statement is mailed to the shareholders of
the Company, at the time of the Company Shareholders’ Meeting
or as of the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are
made, not misleading. None of the information supplied or to be
supplied by or on behalf of Parent or any of its Subsidiaries for
inclusion or incorporation by reference in the Registration
Statement, if a Registration Statement is filed with the SEC in
accordance with Section 4.5(f)(ii), will, at the time that the
Registration Statement is filed with the SEC or at the time it
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. Notwithstanding the foregoing,
no representation or warranty is made by Parent with respect to
statements made or incorporated by reference in the Private
Placement Information Statement, the Merger Permit Information
Statement, the Proxy Statement or the Registration Statement based
on information supplied by or on behalf of the Company for
inclusion or incorporation by reference in the Private Placement
Information Statement, the Merger Permit Information Statement, the
Proxy Statement or the Registration Statement.”
2.05 Section 4.5 of Merger Agreement
. Section 4.5 of the Merger
Agreement is hereby amended and superseded in all respects by the
provisions of this First Amendment. As amended and restated,
Section 4.5 reads in its entirety:
“Securities
Matters.
(a) The parties hereto acknowledge
and agree that if a Private Placement Information Statement has
been mailed to the shareholders of the Company and the Merger
is
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consummated in the manner described in the
Private Placement Information Statement, the securities issuable to
the Company Shareholders pursuant to the Merger shall constitute
“restricted securities” under the Securities Act. Such
securities shall bear the legend set forth below.
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OR, UPON
REASONABLE REQUEST BY THE COMPANY, AN OPINION OF LEGAL COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.”
(b) Prior to the Closing, the
Company shall use its commercially reasonable efforts to prevent
the number of Company Shareholders who are Unaccredited Investors
(as defined in Section 8.4) from increasing to more than
thirty-five such Unaccredited Investors. As soon as practicable
after the execution of the First Amendment, but in any event prior
to January 5, 2007, the Company shall use its commercially
reasonable efforts to arrange for a purchaser representative (as
contemplated by Regulation D under the Securities Act)
reasonably satisfactory to Parent (the “ Purchaser
Representative ”) to represent each shareholder of
the Company that is an Unaccredited Investor in connection with the
transactions contemplated by this Agreement. The Company shall use
commercially reasonable efforts to obtain a written agreement in a
form reasonably acceptable to Parent (a “ Purchaser
Representative Agreement ”) from each Unaccredited
Investor. The Company must obtain a Purchaser Representative
Agreement from each Unaccredited Investor (the “
Purchaser Representative Condition ”) in order
to fulfill the Purchaser Representative Condition.
(c) As soon as practicable after the
execution of the First Amendment, the parties shall prepare, and
within one business day after the fulfillment of the Purchaser
Representative Condition, the Company shall deliver to the Company
Shareholders, an information statement relating to this Agreement
and the transactions contemplated hereby (the “ Private
Placement Information Statement ”). Each of the
Company, Parent and Merger Sub shall use commercially reasonable
efforts to cause the Private Placement Information Statement to
comply with all requirements of applicable federal and state
securities laws including the requirements of Rule 506 of
Regulation D promulgated under the Securities Act. Each of the
Company, Parent and Merger Sub shall provide promptly to the other
such information concerning its business and financial statements
and affairs as, in the reasonable judgment of the providing party
or its counsel, may be required or appropriate for inclusion in the
Private Placement Information Statement or in any amendments or
supplements thereto. The Private Placement Information Statement
shall constitute a disclosure document for the offer and issuance
of the shares of Parent Common Stock to be received by the holders
of Company Capital Stock in accordance with this Agreement.
Whenever any event occurs that is required to be set forth in an
amendment or supplement to the Private Placement Information
Statement, the Company, Parent and Merger Sub shall cooperate in
delivering any such amendment or supplement to all the holders of
Company Capital Stock. Anything to the contrary
contained
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herein notwithstanding, (x) the Company
shall not include in the Private Placement Information Statement
any information with respect to Parent, Merger Sub or their
respective Affiliates or associates, the form and content of which
information shall not have been approved by Parent prior to such
inclusion; provided, however , that Parent shall not
withhold approval of any information required to be included by
federal or state law, and (y) Parent shall not include in the
Private Placement Information Statement any information with
respect to the Company or its Affiliates or associates, the form
and content of which information shall not have been approved by
the Company prior to such inclusion; provided, however ,
that the Company shall not withhold approval of any information
required to be included by federal or state law. Subject to the
provisions of Section 4.4, the Private Placement Information
Statement shall include the unqualified recommendation of the
Company’s board of directors (the “ Company
Board ”) in favor of adoption of this Agreement and
the unanimous recommendation of the Company Board (the “
Company Board Recommendation ”) that the terms
and conditions of the Merger and this Agreement are fair, just,
reasonable, equitable, advisable and in the best interests of the
Company and its shareholders. Subject to the provisions of
Section 4.4, the Company Board Recommendation shall not be
withdrawn or modified in a manner adverse to Parent, and no
resolution by the Company Board or any committee thereof to
withdraw or modify the Company Board Recommendation in a manner
adverse to Parent shall be adopted or proposed. The Company and
Parent shall cooperate in delivering any such amendment or
supplement to all the holders of Company Capital Stock.
(d) Except as ot
