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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amended and superseded in all respects by the provisions of this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:
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"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:
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" 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:
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"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:
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" 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.
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"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 otherwise set forth in
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