UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A
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Amendment No. 1 to Form 10-K
(Mark One)
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| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2013
OR
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| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 001-13828
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SunEdison, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware | | 56-1505767 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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501 Pearl Drive (City of O’Fallon) St. Peters, Missouri | | 63376 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code:
(636) 474-5000
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Securities registered pursuant to Section 12(b) of the Act:
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| Title of Each Class | | Name of Each Exchange on Which Registered: |
| $.01 Par Value Common Stock | | New York Stock Exchange |
Securities Registered Pursuant to Section 12(g) of the Act:
None
(Title of Class)
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Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes x No o
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the
Act. Yes o No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer x Accelerated filer ¨ Non-accelerated filer ¨ Smaller reporting company ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
The aggregate market value of the registrant's Common Stock held by nonaffiliates of the registrant, based upon the closing price of such stock on June 30, 2013 of $8.17 as reported by the New York Stock Exchange, and 231,541,899 shares outstanding on such date, was approximately $1,891,697,315. The number of shares outstanding of the registrant's Common Stock as of February 27, 2014, was 267,150,478 shares.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
The registrant is filing this Form 10-K/A to update the exhibit list and provide as exhibits to the Company's Form 10-K/A for the year ended December 31, 2013, the convertible note hedge agreement confirmations and warrant agreement confirmations issued in connection with the Company's 2.00% Convertible Senior Notes Due 2018 and the 2.75% Convertible Senior Notes Due 2021, which were inadvertently omitted from the exhibits filed with the Annual Report on Form 10-K filed by Registrant on March 6, 2014 (the "Form 10-K"). Other than correcting the exhibit list and providing the exhibits there have been no other changes to the information filed in the Form 10-K.
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| Item 15. | Exhibits, Financial Statement Schedules |
3.Exhibits
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| Exhibit No. | | Description |
| 3.1 | | Restated Certificate of Incorporation of MEMC Electronic Materials, Inc. (“the Company”) (Incorporated by reference to Exhibit 3-a of the Company’s Form 10-Q (File Number 001-13828) for the Quarter ended June 30, 1995) |
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| 3.2 | | Certificate of Amendment of Restated Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on June 2, 2000 (Incorporated by reference to Exhibit 3-(i)(a) of the Company’s Form 10-Q (File Number 001-13828) for the Quarter ended June 30, 2000) |
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| 3.3 | | Certificate of Amendment of Restated Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on July 10, 2002 (Incorporated by reference to Exhibit 3-(i)(b) of the Company’s Form 10-Q (File Number 001-13828) for the Quarter ended September 30, 2002) |
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| 3.4 | | Amended and Restated Certificate of Incorporation of SunEdison, Inc. (Incorporated by reference to Exhibit 3.2 of the Company's Form 8-K filed June 5, 2013) |
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| 3.5 | Restated By-laws of the Company (Incorporated by reference to Exhibit 3.1 of the Company’s Form 8-K filed on February 25, 2010) |
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| 3.6 | | Amended and Restated Bylaws of SunEdison, Inc. (Incorporated by reference to Exhibit 3.3 of the Company's Form 8-K filed June 5, 2013) |
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| 4.1 | | Indenture (including the forms of notes), dated March 10, 2011, by and among MEMC Electronic Materials, Inc., the subsidiary guarantors named therein and U.S. Bank National Association, as trustee (Incorporated by reference to Exhibit 4.1 of the Company's Form 8-K filed March 10, 2011)
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| 10.1 | | Joint Venture Agreement dated August 28, 1990 among the Company, Pohang Iron and Steel Company, Ltd. (“POSCO”) and Samsung Electronics Company, Ltd. (“Samsung”) (Incorporated by reference to Exhibit 10-c of Amendment No. 1 to the Company’s Form S-1 Registration Statement No. 33-92412) |
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| 10.2 | | First Amendment to Joint Venture Agreement dated December 9, 1993 among the Company, POSCO and Samsung (Incorporated by reference to Exhibit 10-d of Amendment No. 1 to the Company’s Form S-1 Registration Statement No. 33-92412) |
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| 10.3 | | Second Amendment to Joint Venture Agreement dated December 30, 1994 among the Company, POSCO and Samsung (Incorporated by reference to Exhibit 10-e of Amendment No. 1 to the Company’s Form S-1 Registration Statement No. 33-92412) |
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| 10.4 | | MEMC Technology License Agreement dated as of July 31, 1995, between Albemarle Corporation and the Company (Incorporated by reference to Exhibit 10-tt of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 1995) |
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| *10.5 | | Seller Technology License Agreement dated as of July 31, 1995, among Albemarle Corporation, the Company, and MEMC Pasadena, Inc. (Incorporated by reference to Exhibit 10-ll of the Company’s Form 10-K/A Amendment No. 2 (File number 001-13828) for the Year ended December 31, 1997) |
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| *10.6 | | Technology Purchase Agreement dated as of July 31, 1995, among Albemarle Corporation and the Company (Incorporated by reference to Exhibit 10-mm of the Company’s Form 10-K/A Amendment No. 2 (File number 001-13828) for the Year ended December 31, 1997) |
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| 10.7 | | Ground Lease Agreement dated as of July 31, 1995, between Albemarle Corporation and MEMC Pasadena, Inc. (Incorporated by reference to Exhibit 10-nn of the Company’s Form 10-K/A Amendment No. 2 (File number 001-13828) for the Year ended December 31, 1997) |
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| 10.8 | | Amendment to Ground Lease Agreement dated as of May 31, 1997, between the Company, MEMC Pasadena, Inc., and Albemarle Corporation (Incorporated by reference to Exhibit 10-nn(1) of the Company’s Form 10-K/A Amendment No. 2 (File number 001-13828) for the Year ended December 31, 1997) |
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| †10.9 | | MEMC Electronic Materials, Inc. 1995 Equity Incentive Plan as Amended and Restated on January 26, 2004 (Incorporated by reference to Exhibit 10-cc of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 2003) |
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| †10.10 | | Form of Restricted Stock Unit Award Agreement (Incorporated by reference to Exhibit 10-cc(1) of the Company Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2004) |
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| †10.11 | | Form of Stock Option and Restricted Stock Agreement (Incorporated by reference to Exhibit 10-t(1) of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 1995) |
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| †10.12 | | Form of Stock Option and Performance Restricted Stock Agreement (Incorporated by reference to Exhibit 10-yy of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 1995) |
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| †10.13 | | Form of Stock Option Agreement (Incorporated by reference to Exhibit 10-zz of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 1995) |
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| †10.14 | | Form of Stock Option and Performance Restricted Stock Agreement (Incorporated by reference to Exhibit 10-nnn of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 1997) |
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| †10.15 | | Form of Stock Option Agreement (Incorporated by reference to Exhibit 10-ooo of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 1997) |
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| †10.16 | | Form of Stock Option Agreement (Non-employee Directors) (Incorporated by reference to Exhibit 10-ppp of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 1997) |
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| †10.17 | | Form of Stock Option Agreement (Incorporated by reference to Exhibit 10-cc(7) of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 1999) |
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| †10.18 | | Form of Stock Option Agreement (4-year cliff vesting) (Incorporated by reference to Exhibit 10-cc(9) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2002) |
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| †10.19 | | Form of Stock Option Agreement (2-year cliff vesting) (Incorporated by reference to Exhibit 10-cc(10) of the Company’s Form 10-Q (File Number 001-13828) for the Quarter ended March 31, 2002) |
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| †10.20 | | Form of Stock Option Agreement (7-year cliff vesting) (Incorporated by reference to Exhibit 10-cc(11) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2002) |
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| †10.21 | | Form of Stock Option Agreement (Outside Directors) (Incorporated by reference to Exhibit 10-cc(12) of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 2003) |
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| †10.22 | | MEMC Electronic Materials, Inc. 2001 Equity Incentive Plan as Restated on January 24, 2007 (Incorporated by reference to Exhibit 10.22 of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.23 | | Form of Stock Option Agreement (4 year vesting) (Incorporated by reference to Exhibit 10-dd(1) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2002) |
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| †10.24 | | Form of Stock Option Agreement (7 year cliff vesting) (Incorporated by reference to Exhibit 10-dd(2) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2002) |
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| †10.25 | | Form of Stock Option Agreement (end of contract vesting) (Incorporated by reference to Exhibit 10-dd(3) of the Company’s Form 10-K (File number 001-13828) for the Year ended December 31, 2002) |
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| †10.26 | | Stock Option Grant Agreement (Incorporated herein by reference to Exhibit 99.1 to the Company’s Form S-8 Registration Statement No. 333-83628 filed March 1, 2002) |
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| †10.27 | | Stock Option Grant Agreement (Incorporated herein by reference to Exhibit 99.2 to the Company’s Form S-8 Registration Statement No. 333-83628 filed March 1, 2002) |
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| †10.28 | | Written Description of MEMC Electronic Materials, Inc. Cash Incentive Plan Covering Executive Officers (Incorporated by reference to Exhibit 10.28 of the Company's Form 10-K for the year ended December 31, 2013) |
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| †10.29 | | Stock Option Grant Agreement (Four Year Vesting) (Incorporated by reference to Exhibit 10-ii(2) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2002) |
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| †10.30 | | Form of Restricted Stock Unit Award Agreement under the 2001 Equity Incentive Plan (Incorporated by reference to Exhibit 10.44 of the Company’s Form 10-K (File number 001-13828) for the year ended December 31, 2005) |
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| †10.31 | | Form of Indemnification Agreement (Incorporated by reference to Exhibit 10-jj of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2002) |
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| †10.32 | | Form of Indemnification Agreement (Incorporated by reference to Exhibit 10-jj(1) of the Company’s Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2003) |
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| *10.33 | | Solar Wafer Supply Agreement, dated as of July 25, 2006, by and between the Company and Suntech Power Holdings Co. Ltd. (Incorporated by reference to Exhibit 10.1 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2006) |
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| *10.34 | | Solar Wafer Supply Agreement, dated as of October 25, 2006, by and between the Company and Gintech Energy Corporation (Incorporated by reference to Exhibit 10.46 of the Company’s Form 10-K (File number 001-13828)for the year ended December 31, 2006) |
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| †10.35 | | Summary of Director Compensation (Incorporated by reference to Exhibit 10.35 of the Company's Form 10-K for the year ended December 31, 2013) |
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| †10.36 | | Summary of Compensation Arrangements for Certain Named Executive Officers (Incorporated by reference to Exhibit 10.36 of the Company's Form 10-K for the year ended December 31, 2013) |
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| *10.37 | | Solar Wafer Supply Agreement between Conergy AG and the Company dated October 25, 2007 (Incorporated by reference to Exhibit 10.42 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| *10.38 | | Amendment No. 1 to Solar Wafer Supply Agreement between Gintech Energy Corp. and the Company dated October 25, 2007 (Incorporated by reference to Exhibit 10.43 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.39 | | Form of MEMC Electronic Materials, Inc. Stock Unit Award Agreement for Directors (Incorporated by reference to Exhibit 10-44 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.40 | | Form of Amendment to MEMC Electronic Materials, Inc. Stock Unit Award Agreement for Directors (Incorporated by reference to Exhibit 10.45 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.41 | | Form of MEMC Electronic Materials, Inc. Stock Unit Award Agreement for Employees (Time Vesting) (Incorporated by reference to Exhibit 10.46 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.42 | | Form of Amendment to MEMC Electronic Materials, Inc. Stock Unit Award Agreement for Officers (Time Vesting) (Incorporated by reference to Exhibit 10.47 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| †10.43 | | Form of Amendment to MEMC Electronic Materials, Inc. Stock Unit Award Agreement for Officers (Performance Vesting) (Incorporated by reference to Exhibit 10.48 of the Company’s Annual Report on Form 10-K (File number 001-13828) for the Year ended December 31, 2007) |
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| *10.44 | | Amended and Restated STF Supply Agreement dated as of April 30, 2007, by and between the Company and PCS Phosphate Company, Inc. (Incorporated by reference to Exhibit 10.49 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2008) |
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| *10.45 | | Solar Wafer Supply Agreement dated as of July 9, 2008, by and between MEMC Singapore Pte. Ltd. and Tainergy Tech Co., Ltd. (Incorporated by reference to Exhibit 10.50 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2007) |
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| *10.46 | | Amendment Number 1 to Solar Wafer Supply Agreement, by and between MEMC Singapore Pte. Ltd. and Conergy AG, dated as of July 10, 2008. (Incorporated by reference to Exhibit 10.51 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2007) |
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| †10.47 | | Employment Agreement between the Company and Ahmad R. Chatila dated February 4, 2009 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on February 5, 2009) |
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| *10.48 | | Amendment Number 1 to Solar Wafer Supply Agreement, dated February 5, 2009, by and between MEMC Singapore Pte. Ltd. and Suntech Power Holdings Co., Ltd. (Incorporated by reference to Exhibit 10.53 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2009) |
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| *10.49 | | Amendment Number 3 to Solar Wafer Supply Agreement, dated February 16, 2009, by and between MEMC Singapore Pte. Ltd. and Gintech Energy Corporation (Incorporated by reference to Exhibit 10.54 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2009) |
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| *10.50 | | Binding Term Sheet, Solar Plant Company between MEMC Electronic Materials, Inc. and Q-Cells SE, dated as of June 26, 2009 (Incorporated by reference to Exhibit 10.56 to the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2009) |
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| *10.51 | | Amendment Number 2 to Solar Wafer Supply Agreement, by and between the Company and Suntech Power Holdings Co., Ltd., dated as of July 23, 2009 (Incorporated by reference to Exhibit 10.58 to the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2009) |
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| *10.52 | | Amendment No. 4 to Solar Wafer Supply Agreement, dated as of September 22, 2009, by and between the Company and Gintech Energy Corporation (Incorporated by reference to Exhibit 10.57 to the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2009) |
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| *10.53 | | Agreement and Plan of Merger, by and among the Company, Sierra Acquisition Sub, LLC, Sun Edison LLC, and the Unitholder Representatives, dated as of October 22, 2009 (Incorporated by reference to Exhibit 10.59 to the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2009) |
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| *10.54 | | Amendment to Agreement and Plan of Merger, dated as of November 11, 2009 by and among the Company, Sierra Acquisition Sub, LLC, Sun Edison LLC and the Representatives listed therein (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 17, 2009) |
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| *10.55 | | Form of Blocker Purchase Agreement entered into with each of MissionPoint SE Parallel Fund Corp. and the stockholders listed therein; Greylock XII Corp. and the stockholders listed therein; Black River CEI Subsidiary 6 LLC and the equityholder listed therein; and NEA 12 SE, LLC and the equityholder listed therein (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 17, 2009) |
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| 10.56 | | Registration Rights Agreement, by and among the Company, Carlos Domenech, Peter J. Lee, Thomas Melone, and the Preferred Unitholders of Sun Edison dated November 20, 2009 (Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.57 | | MEMC Electronic Materials, Inc. 2009 Special Inducement Grant Plan (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.58 | | Form of MEMC Electronic Materials, Inc. 2009 Special Inducement Grant Plan Restricted Stock Unit Award Agreement (performance-based vesting, employees without an employment agreement) (Incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.59 | | Form of MEMC Electronic Materials, Inc. 2009 Special Inducement Grant Plan Restricted Stock Unit Award Agreement (performance-based vesting, employees with an employment agreement) (Incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.60 | | Form of MEMC Electronic Materials, Inc. 2009 Special Inducement Grant Plan Restricted Stock Unit Award Agreement (time-based vesting, employees with an employment agreement) (Incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.61 | | Form of MEMC Electronic Materials, Inc. 2009 Special Inducement Grant Plan Restricted Stock Unit Award Agreement (time-based vesting, employees without an employment agreement) (Incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K (File number 001-13828) filed on November 23, 2009) |
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| †10.62 | | MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.1 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.63 | | Form of Stock Option Award Agreement (four-year vesting) under the 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.2 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.64 | | Form of Restricted Stock Award Agreement (outside directors) under the 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.3 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.65 | | Form of Restricted Stock Award Agreement (time-based vesting) under the 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.4 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.66 | | Form of Restricted Stock Award Agreement (performance-based vesting) under the 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.5 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.67 | | Form of Performance Unit Award under the 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 99.6 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| †10.68 | | MEMC Electronic Materials, Inc. 2001 Equity Incentive Plan, as amended and restated on February 26, 2010 (Incorporated by reference to Exhibit 99.7 of the Company’s Current Report on Form 8-K (File number 001-13828) filed on April 22, 2010) |
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| *10.69 | | Amendment Number 2 to Solar Wafer Supply Agreement by and between MEMC Singapore Pte. Ltd and Conergy AG, dated as of January 24, 2010 (Incorporated by reference to Exhibit 10.66 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2010) |
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| †10.70 | | Amendment to Employment Agreement between the Company and Ahmad Chatila dated January 29, 2010 (Incorporated by reference to Exhibit 10.67 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2010) |
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| *10.71 | | Agreement and Plan of Merger by and among the Company, Oscar Acquisition Sub, Inc., Solaicx, and Shareholder Representative Services, LLC, as the Representative, dated May 21, 2010 (Incorporated by reference to Exhibit 10.68 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2010) |
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| *10.72 | | Framework Agreement by and among SunEdison LLC, FREI Sun Holdings (Cayman) Ltd., FREI Sun Holdings (US) LLC, SunEdison Reserve US, L.P. and SunEdison Reserve International, L.P., dated as of May 21, 2010 (Incorporated by reference to Exhibit 10.69 of the Company’s Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2010) |
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| *10.73 | | Joint Venture Agreement dated as of February 15, 2011 by and among MEMC Singapore Pte. Ltd. and Samsung Fine Chemicals Ltd. (Incorporated by reference to Exhibit 10.82 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2011)
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| 10.74 | | Amended and Restated Credit Agreement dated as of March 23, 2011 by and between MEMC, Bank of America, N.A., as administrative agent, lender, swing line lender and letter of credit issuer, and the various lenders signatory thereto (Incorporated by reference to Exhibit 10.83 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2011)
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| 10.75 | | Purchase Agreement dated as of June 23, 2011 by and among Sun Edison LLC, FREI Sun Holdings (Cayman) Ltd., and FREI Sun Holdings (US) LLC (Incorporated by reference to Exhibit 10.84 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2011)
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| 10.76 | | Termination Agreement dated as of June 30, 2011 by and between MEMC Singapore Pte. Ltd. and Suntech Power Holdings Co., LTD. (Incorporated by reference to Exhibit 10.85 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2011)
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| †*10.77 | | Stock Sale Agreement dated as of August 3, 2011 by and among MEMC, MEMC Holdings Corporation, Fotowatio Renewable Ventures, S.L. and Fotowatio S.L. (Incorporated by reference to Exhibit 10.86 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2011)
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| 10.78 | | First Amendment dated as of September 28, 2011 to Amended and Restated Credit Agreement dated as of March 23, 2011 by and between MEMC, Bank of America, N.A., as administrative agent, lender, swing line lender and letter of credit issuer, and the various lenders signatory thereto (Incorporated by reference to Exhibit 10.87 of the Company's Quarterly Report on Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2011)
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| 10.79 | | Second Amendment, dated as of February 28, 2012, to Amended and Restated Credit Agreement dated as of March 23, 2011 by and between MEMC, Bank of America, N.A., as administrative agent, lender, swing line lender and letter of credit issuer, and the various lenders signatory thereto (Incorporated by reference to Exhibit 10.88 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended March 31, 2012)
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| †10.80 | | MEMC Electronic Materials, Inc. 1995 Equity Incentive Plan as Amended and Restated on April 4, 2012 (Incorporated by reference to Exhibit (d)(1) of MEMC's Tender Offer Statement on Schedule TO (File number 005-52339) filed on July 17, 2012)
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| †10.81 | | MEMC Electronic Materials, Inc. 2001 Equity Incentive Plan as Amended and Restated on April 4, 2012 (Incorporated by reference to Exhibit (d)(2) of MEMC's Tender Offer Statement on Schedule TO (File number 005-52339) filed on July 17, 2012) |
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| †10.82 | | MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan as Amended and Restated on April 4, 2012 (Incorporated by reference to Exhibit (d)(3) of MEMC's Tender Offer Statement on Schedule TO (File number 005-52339) filed on July 17, 2012)
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| 10.83 | | Third Amendment, dated as of May 8, 2012, to Amended and Restated Credit Agreement dated as of March 23, 2011 by and between MEMC, Bank of America, N.A., as administrative agent, lender, swing line lender and letter of credit issuer, and the various lenders signatory thereto (Incorporated by reference to Exhibit 10.92 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2012)
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| †10.84 | | Separation Agreement and General Release, dated as of June 14, 2012, by and between MEMC Electronic Materials, Inc. and Mark J. Murphy (Incorporated by reference to Exhibit 10.93 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2012)
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| †10.85 | | Separation Agreement and General Release, dated as of June 16, 2012, by and between MEMC Electronic Materials, Inc. and Kenneth H. Hannah Jr. (Incorporated by reference to Exhibit 10.94 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2012) |
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| *10.86 | | Second Amendment to the Amended & Restated STF Supply Agreement, dated as of June 30, 2012, by and between the Company and PCS Phosphate Company, Inc. (Incorporated by reference to Exhibit 10.95 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended June 30, 2012)
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| 10.87 | | Second Lien Credit Agreement, dated September 28, 2012, by and among the Company, Goldman Sachs Bank USA, Deutsche Bank Securities Inc. and the lenders party thereto (Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 8-K (File number 001-13828) filed on October 2, 2012)
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| 10.88 | | Guaranty Agreement, dated September 28, 2012, by and between each of the guarantor subsidiaries in favor of Goldman Sachs Bank USA as Administrative Agent for the benefit of itself and the secured parties named therein (Incorporated by reference to Exhibit 10.2 of the Company's Current Report on Form 8-K (File number 001-13828) filed on October 2, 2012) |
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| 10.89 | | Fourth Amendment to the Credit Agreement dated as of March 23, 2011 (and amended on September 28, 2011, February 28, 2012 and May 8, 2012), dated September 28, 2012, by and among the Company, the guarantors identified therein, the lenders identified therein and Bank of America, N.A., as administrative agent (Incorporated by reference to Exhibit 10.3 of the Company's Current Report on Form 8-K (File number 001-13828) filed on October 2, 2012)
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| 10.90 | | Termination Agreement dated as of September 25, 2012 by and among the Company, MEMC Singapore Pte. Ltd. and Conergy AG (Incorporated by reference to Exhibit 10.99 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2012) |
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| 10.91 | | Settlement Agreement Pertaining to the On-Site Supply Agreement dated as of September 4, 2012 by and among the Company, MEMC Electronic Materials S.p.A., Evonik Industries AG, Evonik Degussa GMBH and Evonik Degussa Italia S.p.A. (Incorporated by reference to Exhibit 10.100 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2012)
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| 10.92 | | Settlement Agreement Pertaining to the Off-Site Supply Agreement dated as of September 4, 2012 by and among the Company, MEMC Electronic Materials S.p.A., Evonik Industries AG and Evonik Degussa GMBH. (Incorporated by reference to Exhibit 10.101 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2012)
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| 10.93 | | Amendment Agreement to the On-Site Settlement Agreement and the Off-Site Settlement Agreement dated as of September 24, 2012, by and among the Company, MEMC Electronic Materials S.p.A., Evonik Industries AG, Evonik Degussa GMBH and Evonik Degussa Italia S.p.A. (Incorporated by reference to Exhibit 10.102 of the Company's Form 10-Q (File number 001-13828) for the Quarter ended September 30, 2012) |
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| 10.94 | | Amendment Number 1 to Solar Wafer Supply Agreement, dated March 29, 2013, by and between MEMC Singapore Pte. Ltd. and Tainergy Tech Co., Ltd. (Incorporated by reference to Exhibit 10.94 of the Company's Quarterly Report on Form 10-Q for the Quarter ended March 31, 2013) |
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| 10.95 | | 2012 MEMC Downstream Solar Bonus Plan (Incorporated by reference to Exhibit 10.95 of the Company's Form 10-Q for the Quarter ended March 31, 2013 filed on May 9, 2013) |
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| 10.96 | | Amended and Restated SunEdison, Inc. 2010 Equity Incentive Plan (Incorporated by reference to Exhibit 10.1 of the Company's Form 8-K filed June 5, 2013) |
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| 10.97 | | Underwriting Agreement, dated September 12, 2013, among the Company, and Deutsche Bank Securities Inc. and Goldman, Sachs & Co., as representatives of the several underwriters named in Schedule I thereto (Incorporated by reference to Exhibit 1.1 of the Company's Form 8-K filed September 18, 2013) |
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| 10.98 | | Termination Agreement for Solar Wafer Supply Agreement, dated September 30, 2013, by and between SunEdison Products Singapore Pte. Ltd. and Gintech Energy Corporation (Incorporated by reference to Exhibit 10-1 of the Company's Form 10-Q for the Quarter ended September 30, 2013) |
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| 10.99 | | Indenture, dated as of December 20, 2013, between SunEdison, Inc., and Wilmington Trust, National Association, as trustee, conversion agent, registrar, bid solicitation agent and paying agent, 2.00% Convertible Senior Notes due 2018 (Incorporated by reference to Exhibit 10.99 of the Company's Form 10-K for the year ended December 31, 2013) |
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| 10.100 | | Indenture, dated as of December 20, 2013, between SunEdison, Inc. and Wilmington Trust, National Association, as trustee, conversion agent, registrar, bid solicitation agent and paying agent, 2.75% Convertible Senior Notes due 2021 (Incorporated by reference to Exhibit 10.100 of the Company's Form 10-K for the year ended December 31, 2013) |
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| 10.101 | | Purchase Agreement, dated as of December 12, 2013, between SunEdison, Inc. and Deutsche Bank Securities Inc. and Goldman, Sachs & Co., as Representatives of the Several Initial Purchasers, regarding 2.00% Convertible Senior Notes due 2018 and 2.75% Convertible Senior Notes due 2021 (Incorporated by reference to Exhibit 10.101 of the Company's Form 10-K for the year ended December 31, 2013) |
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| 10.102 | | Credit Agreement, dated as of December 20, 2013, among SunEdison, Inc., Deutsche Bank AG New York Branch, as Administrative Agent and L/C Issuer (Incorporated by reference to Exhibit 10.102 of the Company's Form 10-K for the year ended December 31, 2013) |
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| 10.103 | | Pledge and Security Agreement dated as of December 20, 2013 between each of the Grantors Party Hereto and Deutsche Bank AG New York Branch (Incorporated by reference to Exhibit 10.103 of the Company's Form 10-K for the year ended December 31, 2013) |
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| 10.104 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.105 | | Additional Warrant Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.106 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.107 | | Base Warrant Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.108 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.109 | | Additional Warrant Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.110 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.111 | | Base Warrant Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.112 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.113 | | Additional Warrant Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.114 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.115 | | Base Warrant Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.116 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.117 | | Additional Warrant Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.118 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.119 | | Base Warrant Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.120 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.121 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.122 | | Additional Warrant Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.123 | | Additional Warrant Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.124 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.125 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.126 | | Base Warrant Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.127 | | Base Warrant Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.128 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.129 | | Additional Warrant Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.130 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.131 | | Base Warrant Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.132 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.133 | | Additional Warrant Transaction Transaction (2021) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.134 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.135 | | Base Warrant Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| #13 | | Selected pages from the Company's 2012 Annual Report to Stockholders |
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| #21 | | Subsidiaries of the Company |
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| #23 | | Consent of KPMG LLP |
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| #31.1 | | Certification by the Chief Executive Officer of the Company pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
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| #31.2 | | Certification by the Chief Financial Officer of the Company pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
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| #32 | | Certification by the Chief Executive Officer and Chief Financial Officer of the Company pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
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| #101.INS | | XBRL Instance Document |
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| #101.SCH | | XBRL Taxonomy Extension Schema Document |
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| #101.CAL | | XBRL Taxonomy Extension Calculation Linkbase Document |
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| #101.DEF | | XBRL Taxonomy Extension Definition Linkbase Document |
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| #101.LAB | | XBRL Taxonomy Extension Label Linkbase Document |
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| #101.PRE | | XBRL Taxonomy Extension Presentation Linkbase Document |
_________________________
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| * | Confidential treatment of certain portions of these documents has been requested or granted. |
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| † | These exhibits constitute management contracts, compensatory plans and arrangements. |
| # | Previously filed. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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| | | SUNEDISON, INC. |
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| | | By: | | /s/ Martin H. Truong |
| | | | | Martin H. Truong Vice President, General Counsel and Secretary |
| Date: | April 16, 2014 | | | |
EXHIBIT INDEX
The following exhibits are filed as part of this report:
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| Exhibit No. | | Description |
| 10.104 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.105 | | Additional Warrant Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.106 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.107 | | Base Warrant Transaction Confirmation (2018) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.108 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.109 | | Additional Warrant Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 16, 2013. |
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| 10.110 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.111 | Base Warrant Transaction Confirmation (2021) between the Company and Bank of America, N.A. dated December 12, 2013. |
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| 10.112 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.113 | | Additional Warrant Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.114 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.115 | | Base Warrant Transaction Confirmation (2018) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.116 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.117 | | Additional Warrant Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 16, 2013. |
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| 10.118 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.119 | | Base Warrant Transaction Confirmation (2021) between the Company and Deutsche Bank AG London Branch dated December 12, 2013. |
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| 10.120 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.121 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.122 | | Additional Warrant Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.123 | | Additional Warrant Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 16, 2013. |
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| 10.124 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.125 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.126 | | Base Warrant Transaction Confirmation (2018) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.127 | | Base Warrant Transaction Confirmation (2021) between the Company and Goldman, Sachs & Co. dated December 12, 2013. |
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| 10.128 | | Additional Note Hedge Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.129 | | Additional Warrant Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.130 | | Base Note Hedge Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.131 | | Base Warrant Transaction Confirmation (2018) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.132 | | Additional Note Hedge Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.133 | | Additional Warrant Transaction Transaction (2021) between the Company and Wells Fargo Bank, National Association dated December 16, 2013. |
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| 10.134 | | Base Note Hedge Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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| 10.135 | | Base Warrant Transaction Confirmation (2021) between the Company and Wells Fargo Bank, National Association dated December 12, 2013. |
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