Exhibit (a)(1)(ii)
SunPower Corporation
LETTER OF TRANSMITTAL
Offer to Purchase, Dated November 24, 2020,
Any and All Outstanding
0.875% Senior Convertible Debentures due 2021
CUSIP No. 867652 AJ8
with respect to the 0.875% Senior Convertible Debentures due 2021 held in book-entry form through DTC
CUSIP No. 867652 AH2
with respect to the 0.875% Senior Convertible Debentures due 2021 held by Total Solar INTL SAS
The Offer (as defined herein) will expire at midnight, New York City time (the last minute of the day), on December 22, 2020, unless extended or earlier terminated (such time and date, as the same may be extended, the “Expiration Time”). Holders (as defined herein) whose Convertible Debentures (as defined herein) are accepted for purchase pursuant to the Offer will be entitled to receive the Consideration (as defined herein) plus Accrued Interest. The Consideration will be payable in cash. Tendered Convertible Debentures may be withdrawn prior to the Expiration Time, but not thereafter. The Offer is subject to the satisfaction or waiver of certain conditions as set forth under the heading “Conditions to the Offer” in the Offer to Purchase (as defined herein).
The Depositary with respect to the Convertible Debentures held in book-entry form through The Depository Trust Company (“DTC”) (such Convertible Debentures, the “book-entry Convertible Debentures”) and Information Agent for the Offer is:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers call: (212) 269-5550
Toll free: (866) 856-3065
Email: sunpower@dfking.com
By facsimile:
(For Eligible Institutions only)
(212) 709-3328
Confirmation:
(212) 269-5552
By Mail, Overnight Courier or Hand:
Attn: Andrew Beck
48 Wall Street
New York, New York 10005
DELIVERY OF THIS LETTER OF TRANSMITTAL OTHER THAN AS SET FORTH BELOW WILL NOT CONSTITUTE A VALID DELIVERY. THIS LETTER OF TRANSMITTAL NEED NOT BE COMPLETED BY HOLDERS TENDERING CONVERTIBLE DEBENTURES BY ATOP (AS HEREINAFTER DEFINED).
The instructions contained herein should be read carefully before this Letter of Transmittal is completed. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Offer to Purchase, dated November 24, 2020 (the “Offer to Purchase”). To the extent there are any conflicts between the terms and conditions of the Letter of Transmittal and the terms and conditions of the Offer to Purchase, the terms and conditions of the Offer to Purchase shall control.
Requests for additional copies of this Letter of Transmittal or for copies of the related Offer to Purchase and requests for assistance relating to the procedures for tendering Convertible Debentures may be directed to D.F. King & Co., Inc., which is serving as depositary with respect to the book-entry Convertible Debentures and information agent in connection with the Offer (the “Depositary and Information Agent”) at the address and telephone number on the front and back cover page of this Letter of Transmittal. Requests for assistance relating to the terms and conditions of the Offer may be directed to BofA Securities, Inc. (the “Dealer Manager”) at the address and telephone number on the back cover page of this Letter of Transmittal. Beneficial owners may also contact their broker, dealer, commercial bank, trust company, custodian or other nominee (each, a “Nominee”) for assistance regarding the Offer.
This Letter of Transmittal and the instructions hereto (as it may be amended or supplemented from time to time, this “Letter of Transmittal”) and the Offer to Purchase (together with this Letter of Transmittal, the “Offer Documents”) constitute an offer by SunPower Corporation, a Delaware corporation (the “Company” or “SunPower”), upon the terms and subject to the conditions set forth in the Offer Documents, to purchase any and all of its outstanding 0.875% Senior Convertible Debentures due 2021 (the “Convertible Debentures”) that are validly tendered and not validly withdrawn prior to the Expiration Time, for cash in an amount equal to $1,000 per $1,000 principal amount of Convertible Debentures purchased (the “Consideration”). The Company refers to the offer to purchase the Convertible Debentures pursuant to the Offer Documents as the “Offer.”
The Offer is open to all holders of record of the Convertible Debentures (individually, a “Holder” and, collectively, the “Holders”). Other than the debentures registered in the name of Total Solar INTL SAS (“Total,” formerly Total Solar International SAS, of which the Company is a majority-owned subsidiary), the Convertible Debentures are represented by one or more global debentures registered in the name of Cede & Co., the nominee of DTC, and held in book-entry form through DTC. DTC facilitates the clearance and settlement of securities transactions through electronic book-entry changes in accounts of DTC participants. The Convertible Debentures held by Total are held in certificated form.
Only Convertible Debentures validly tendered and not validly withdrawn prior to midnight, New York City time (the last minute of the day), on the Expiration Time and accepted for purchase will be purchased in the Offer. Payment for any such validly tendered and not validly withdrawn book-entry Convertible Debentures will be made by the deposit of immediately available funds by the Company with the Depositary and Information Agent or, at its direction, DTC, promptly following the Expiration Time, and is expected to be within three (3) business days following the Expiration Time (the date of payment with respect to the Offer being referred to herein as the “Payment Date”). Payment for any such validly tendered and not validly withdrawn Convertible Debentures held in certificated form (the “certificated Convertible Debentures”) will be made directly by the Company to the relevant Holder on the Payment Date. The Offer is not conditioned on the tender of any minimum principal amount of Convertible Debentures. The Offer is, however, subject to the satisfaction or waiver of certain conditions as described in the Offer to Purchase. See “Conditions to the Offer” in the Offer to Purchase.
The Convertible Debentures may be tendered and accepted for purchase only in principal amounts of $1,000 or an integral multiple thereof. Holders who do not tender all of their Convertible Debentures must ensure that they retain a principal amount of Convertible Debentures equal to or greater than $1,000. The Company is not obligated and does not intend to accept any alternative, conditional or contingent tenders.
For a Holder to validly tender Convertible Debentures pursuant to the Offer, the Holder must either (1) properly complete and duly execute this Letter of Transmittal, together with any other documents required by
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this Letter of Transmittal, and mail or deliver this Letter of Transmittal (or a manually signed facsimile thereof) and such other documents to the Depositary and Information Agent (for book-entry Convertible Debentures) or the Company (for certificated Convertible Debentures) for acceptance before the Expiration Time or (2) in the case of Convertible Debentures held in book-entry form through DTC, electronically transmit their acceptance through the automated tender offer program (“ATOP”) (and thereby tender the Convertible Debentures), for which the transaction will be eligible, and DTC will then edit and verify the acceptance, execute a book-entry delivery to the Depositary’s account at DTC and send an Agent’s Message (as defined below) in lieu of a Letter of Transmittal, and any other required documents to the Depositary and Information Agent or the Company, as applicable, for acceptance before the Expiration Time. The confirmation of a book- entry transfer into the Depositary and Information Agent’s account at DTC as described above is referred to herein as a “ Book-Entry Confirmation.” The term “Agent’s Message” means a message transmitted by DTC to, and received by, the Depositary and Information Agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the tendering participant stating (1) the aggregate principal amount of Convertible Debentures to be tendered by such participant, (2) that such participant has received copies of the Offer Documents and agrees to be bound by the terms and conditions of the Offer as described herein and in the Letter of Transmittal and (3) that the Company may enforce the terms and conditions of such agreement against such tendering participant.
A beneficial owner whose Convertible Debentures are held by a Nominee and who desires to tender such Convertible Debentures in the Offer must contact its Nominee and instruct such Nominee to tender its Convertible Debentures on such beneficial owner’s behalf. Accordingly, beneficial owners wishing to participate in the Offer should contact their Nominee as soon as possible in order to determine the time by which such owner must take action in order to so participate. Any beneficial owner of Convertible Debentures held of record by DTC or its Nominee, through authority granted by DTC, may direct the DTC participant through which such beneficial owner’s Convertible Debentures are held in DTC to tender Convertible Debentures on such beneficial owner’s behalf. See below for more information.
For certificated Convertible Debentures, the certificates for tendered Convertible Debentures must be received by the Company at its address set forth on the back cover of this Offer to Purchase prior to the Expiration Time.
If the Convertible Debentures are registered in the name of a person other than the signer of this Letter of Transmittal, or if certificates for unpurchased certificated Convertible Debentures are to be issued to a person other than the registered Holder, the certificates or this Letter of Transmittal, as applicable, must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name of the registered Holder appears on the certificate or exactly as such DTC participant’s name appears on a security position listing as the owner of the Convertible Debentures, as applicable, with the signature on the certificates or bond powers guaranteed as described below.
If the Offer is terminated or withdrawn, or the Convertible Debentures are not accepted for purchase, no Consideration and Accrued Interest will be paid or payable to Holders of those Convertible Debentures. In any such event, the Convertible Debentures previously tendered pursuant to the Offer will be promptly returned to the tendering Holders. If any tendered Convertible Debentures are not purchased pursuant to the Offer for any reason, such Convertible Debentures not purchased will be returned promptly, without expense, to the tendering Holder (or, in the case of Convertible Debentures tendered by book-entry transfer, such Convertible Debentures will be promptly credited to the account maintained at DTC from which Convertible Debentures were delivered) after the expiration or termination of the Offer.
The Offer is made upon the terms and subject to the conditions set forth in the Offer Documents. Holders should carefully review such information.
The Offer Documents contain and incorporate by reference important information that should be read before any decision is made with respect to the Offer. In particular, see “Additional Considerations
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Concerning the Offer” in the Offer to Purchase for a discussion of certain factors you should consider in connection with the Offer.
THE OFFER DOCUMENTS DO NOT CONSTITUTE AN OFFER TO PURCHASE IN ANY JURISDICTION, DOMESTIC OR FOREIGN, IN WHICH, OR TO OR FROM ANY PERSON TO OR FROM WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER UNDER APPLICABLE SECURITIES OR “BLUE SKY” LAWS.
If you desire to tender Convertible Debentures for which you are the beneficial owner that are held through a Nominee, you should contact such Nominee promptly and instruct the Nominee to tender such Convertible Debentures on your behalf. The instructions included with this Letter of Transmittal must be followed.
Holders who wish to tender their Convertible Debentures using this Letter of Transmittal must:
| • | complete the section below entitled “Method of Delivery;” |
| • | complete the box below entitled “Description of Convertible Debentures Tendered” and sign where indicated under “Please Sign Here;” |
| • | if appropriate, check and complete the boxes relating to the “Special Payment Instructions” and “Special Delivery Instructions;” and |
| • | complete the enclosed IRS Form W-9 or an appropriate IRS Form W-8, as described below. |
There are no guaranteed delivery provisions provided for by the Company in connection with the Offer under the terms set forth in the Offer Documents. Accordingly, you must allow sufficient time for the necessary tender procedures to be completed during the normal business hours of DTC on or prior to the Expiration Time. If you hold your Convertible Debentures through a broker, dealer, commercial bank, trust company or other nominee, you should be aware that such entity may establish its own earlier deadlines for participation in the Offer. Tenders not completed prior to the Expiration Time will be disregarded and of no effect (unless the Offer has been extended and such tenders are completed prior to the expiration of the extended Offer). Holders must tender their Convertible Debentures in accordance with the procedures set forth herein.
OUR BOARD OF DIRECTORS HAS APPROVED THE OFFER. HOWEVER, NONE OF THE COMPANY, ITS MANAGEMENT OR BOARD OF DIRECTORS (OR COMMITTEE THEREOF), THE DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY MAKES ANY RECOMMENDATION IN CONNECTION WITH THE OFFER. YOU SHOULD CONSULT YOUR OWN FINANCIAL AND TAX ADVISORS, AND READ CAREFULLY AND EVALUATE THE INFORMATION IN THIS OFFER TO PURCHASE, INCLUDING OUR REASONS FOR THE OFFER, BEFORE TAKING ANY ACTION WITH RESPECT TO THE OFFER. EACH HOLDER MUST MAKE ITS OWN DECISION AS TO WHETHER TO TENDER ITS CONVERTIBLE DEBENTURES AND, IF SO, THE PRINCIPAL AMOUNT OF THE CONVERTIBLE DEBENTURES TO TENDER.
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METHOD OF DELIVERY
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CHECK HERE IF PHYSICAL CERTIFICATES FOR TENDERED CONVERTIBLE DEBENTURES ARE BEING DELIVERED HEREWITH. | |||
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CHECK HERE IF TENDERED CONVERTIBLE DEBENTURES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY AND INFORMATION AGENT WITH DTC AND COMPLETE THE FOLLOWING: | |||
| Name of Tendering Institution: | ||||
| DTC Participant Number: | Date Tendered: | |||
| Account Number: | Transaction Code Number: | |||
List below the Convertible Debentures to which this Letter of Transmittal relates. If the space provided is inadequate, list the principal amounts on a separately executed schedule and affix the schedule to this Letter of Transmittal. Tenders of the Convertible Debentures will be accepted only in principal amounts equal to $1,000 or an integral multiple thereof. No alternative, conditional or contingent tenders will be accepted. Only provide the Certificate Number(s) if the tendered Convertible Debentures to which this Letter of Transmittal relates are held in certificated form.
| DESCRIPTION OF CONVERTIBLE DEBENTURES TENDERED | ||||||
| Name(s) and Address(es) of Holder(s) (Please fill in, if blank) |
Certificate Number(s)* | Principal Amount of Convertible Debentures Tendered** | ||||
| CUSIP No. 867652 AJ8* |
$ | |||||
| CUSIP No. 867652 AH2 |
$ | |||||
| * | Need not be completed by Holders tendering by book-entry transfer or in accordance with DTC’s ATOP procedure for transfer (see below). |
| ** | Must be tendered in principal amounts of $1,000 or an integral multiple thereof. |
The names and addresses of the Holders should be printed exactly as they appear on the certificate(s) representing the Convertible Debentures tendered hereby or, if tendered by a participant in DTC, exactly as such participant’s name appears on a security position listing as the owner of the Convertible Debentures.
If you do not wish to tender your Convertible Debentures, you do not need to return this Letter of Transmittal or take any other action.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges receipt of this Letter of Transmittal (this “Letter of Transmittal”) and the Offer to Purchase, dated November 24, 2020 (the “Offer to Purchase” and, together with this Letter of Transmittal, as may be amended and supplemented from time to time, the “Offer Documents”), constituting an offer by SunPower Corporation, a Delaware corporation (the “ Company”), on the terms and subject to the conditions set forth in the Offer Documents, to purchase any and all of its outstanding 0.875% Senior Convertible Debentures due 2021 (the “Convertible Debentures”) for cash in an amount equal to $1,000 per $1,000 principal amount of Convertible Debentures purchased (the “Consideration”). The Company refers to the offer to purchase the Convertible Debentures as the “Offer.”
Upon the terms and subject to the conditions of the Offer, the undersigned hereby tenders to the Company the principal amount of Convertible Debentures indicated above in the box captioned “Description of Convertible Debentures Tendered.”
The undersigned acknowledges and agrees that the tender of the Convertible Debentures made hereby may not be withdrawn, except in accordance with the procedures and conditions for withdrawal set forth in the Offer to Purchase.
Subject to, and effective upon, the acceptance for purchase of, and payment for, the principal amount of Convertible Debentures tendered with this Letter of Transmittal, the undersigned hereby (1) irrevocably sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to all the Convertible Debentures tendered thereby and accepted for purchase pursuant to the terms hereof, (2) waives any and all other rights with respect to the Convertible Debentures (including, without limitation, the tendering registered Holder’s (individually, a “Holder” and, collectively, the “Holders”) waiver of any existing or past defaults and their consequences in respect of the Convertible Debentures and the indenture under which such Convertible Debentures were issued), (3) releases and discharges the Company from any and all claims such Holder may have now, or may have in the future, arising out of, or related to, such Convertible Debentures, including, without limitation, any claims that such Holder is entitled to receive additional principal or interest payments with respect to such Convertible Debentures or to participate in any repurchase, redemption or defeasance of the Convertible Debentures, and (4) irrevocably constitutes and appoints D.F. King & Co., Inc., which is serving as Depositary (only with respect to the book-entry Convertible Debentures) and Information Agent in connection with the Offer (the “Depositary and Information Agent”) or the Company (only with respect to the certificated Convertible Debentures), as the case may be, as the true and lawful agent and attorney-in-fact of such Holder (with full knowledge that the Depositary and Information Agent also acts as the agent of the Company) with respect to any such tendered Convertible Debentures, with full power of substitution and resubstitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (a) transfer ownership of such Convertible Debentures on the account books maintained by The Depository Trust Company (“DTC”), together with all accompanying evidences of transfer and authenticity, to, or upon the order of, the Company, (b) present such Convertible Debentures for transfer on the relevant security register, and (c) receive all benefits or otherwise exercise all rights of beneficial ownership of such Convertible Debentures (except that the Depositary and Information Agent will have no rights to, or control over, funds from the Company, except as agent for the tendering Holders of book-entry Convertible Debentures, for the Consideration of Convertible Debentures tendered pursuant to the Offer, as determined pursuant to the terms of the Offer to Purchase, for any tendered Convertible Debentures that are purchased by the Company). For the certificated Convertible Debentures, such Holder agrees that the delivery and surrender of the tendered Convertible Debentures is not effective, and the risk of loss of the Convertible Debentures does not pass to the Company, until receipt by the Company of a properly completed and duly executed Letter of Transmittal and the certificate(s) representing the tendered Convertible Debentures accompanying the Letter of Transmittal together with all accompanying evidences of authority and any other required documents in form satisfactory to the Company.
The undersigned understands and acknowledges that the Offer will expire at midnight, New York City time (the last minute of the day), on December 22, 2020, unless extended or earlier terminated (such time and date, as the
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same may be extended, the “Expiration Time”). The undersigned understands and acknowledges that, in order to receive the Consideration and Accrued Interest offered for the Convertible Debentures, the undersigned must have validly tendered and not validly withdrawn Convertible Debentures prior to midnight, New York City time (the last minute of the day), on the Expiration Time.
Unless otherwise indicated herein under “Special Payment Instructions,” the undersigned hereby requests that checks for payment of the Consideration and Accrued Interest for validly tendered and accepted Convertible Debentures to be issued in connection with the Offer be issued to the order of the undersigned. Similarly, unless otherwise indicated herein under “Special Delivery Instructions,” the undersigned hereby requests that any Convertible Debentures representing principal amounts not tendered or not accepted for purchase be issued in the name(s) of, and be delivered to, the undersigned (and, in the case of Convertible Debentures tendered by book-entry transfer, by credit to such DTC participant’s account).
In the event that the “Special Payment Instructions” box or the “Special Delivery Instructions” box is, or both are, completed, the undersigned hereby requests that any Convertible Debentures representing principal amounts not accepted for purchase be credited to the account of, and checks for payment of the Consideration for validly tendered and accepted Convertible Debentures be issued in the name(s) of and be delivered to, the person(s) at the addresses so indicated, as applicable.
The undersigned recognizes that the Company has no obligation pursuant to the “Special Payment Instructions” box or “Special Delivery Instructions” box to transfer any Convertible Debentures from the name of the Holder(s) thereof if the Company does not accept for purchase any of the principal amount of such Convertible Debentures so tendered.
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PLEASE SIGN HERE
(PLEASE COMPLETE AND RETURN WITH THE ATTACHED IRS FORM W-9 (OR IRS FORM W-8, AS APPLICABLE) UNLESS AN AGENT’S MESSAGE IS DELIVERED THROUGH THE FACILITIES OF DTC)
This Letter of Transmittal must be signed by the Holder, exactly as his, her, its or their name(s) appear(s) on certificate(s) representing the tendered Convertible Debentures or, if the Convertible Debentures are tendered by a participant in DTC, exactly as such participant’s name appears on a security position listing as the owner of such Convertible Debentures. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below under “Capacity” and submit evidence satisfactory to the Company of such person’s authority to so act. Certain signatures must be guaranteed by a Medallion Signature Guarantor. See Instruction 3 below.
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| Date: , 2020 | ||
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PLEASE COMPLETE IRS FORM W-9 HEREIN (OR IRS FORM W-8, AS APPLICABLE) AND SIGNATURE GUARANTEE, IF REQUIRED (SEE INSTRUCTION 3 BELOW)
CERTAIN SIGNATURES MUST BE GUARANTEED BY A MEDALLION SIGNATURE GUARANTOR
| Authorized Signature: |
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| Name of Medallion Signature Guarantor: |
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| Date: , 2020 |
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE TENDER OFFER
1. Guarantee of Signatures. All signatures on this Letter of Transmittal must be guaranteed by a firm that is a member of a registered national stock exchange or the Financial Industry Regulatory Authority, or by a commercial bank or trust company having an office or a correspondent in the United States that is a participant in an approved Signature Guarantee Medallion Program (each of the foregoing being an “Eligible Institution”) unless (i) this Letter of Transmittal is signed by the registered Holder(s) of the Convertible Debentures (which term, for purposes of this document, shall include any participant in the DTC system whose name appears on a security position listing as the owner of the Convertible Debentures or any Holder whose name appears on the face of the certificate representing the Debenture) tendered hereby or (ii) such Convertible Debentures are tendered for the account of an Eligible Institution. If the Convertible Debentures are registered in the name of a person other than the signer of this Letter of Transmittal, or if certificates for unpurchased Convertible Debentures are to be issued to a person other than the registered Holder, the signatures on this Letter of Transmittal accompanying the tendered Convertible Debentures must be guaranteed by a Medallion Signature Guarantor as described above. See Instruction 3.
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2. Delivery of Letter of Transmittal and Convertible Debentures. This Letter of Transmittal is to be completed by Holders if:
| • | certificates for tendered Convertible Debentures are to be physically delivered to the Company; or |
| • | tender of Convertible Debentures is to be made by book-entry transfer to the Depositary and Information Agent’s account at DTC pursuant to the procedures for book-entry transfer set forth under the caption “Procedures for Tendering and Withdrawing Convertible Debentures—Tendering Convertible Debentures” in the Offer to Purchase, and instructions are not being transmitted through ATOP. |
For a Holder to validly tender Convertible Debentures pursuant to the Offer, a properly completed and duly executed Letter of Transmittal (or a manually executed facsimile thereof), with any required signature guarantee, or (in the case of a book-entry transfer) an Agent’s Message in lieu of this Letter of Transmittal, and any other required documents, must be received by the Depositary and Information Agent (only with respect to book-entry Convertible Debentures) or the Company (only with respect to certificated Convertible Debentures) at its address set forth herein on or before the Expiration Time.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY AND INFORMATION AGENT OR COMPANY, AS APPLICABLE. DELIVERY WILL BE DEEMED MADE ONLY WHEN DOCUMENTS ARE ACTUALLY RECEIVED BY THE DEPOSITARY AND INFORMATION AGENT OR COMPANY, AS APPLICABLE.
The method of delivery of this Letter of Transmittal, certificates for Convertible Debentures and all other required documents, including delivery through DTC and any acceptance or Agent’s Message delivered through ATOP, is at the election and risk of the tendering Holder. If a Holder chooses to deliver by mail, the recommended method is by registered mail with return receipt requested, properly insured. In all cases, sufficient time should be allowed to ensure timely delivery to the Depositary and Information Agent.
Alternative, conditional or contingent tenders will not be considered valid. By execution and delivery of this Letter of Transmittal (or a manually signed facsimile hereof) or by electronic confirmation pursuant to DTC’s ATOP (together with the Book-Entry Confirmation), all tendering Holders of Convertible Debentures waive any right to receive any notice of the acceptance of their Convertible Debentures for payment. If any tendered Convertible Debentures are not purchased pursuant to the Offer for any reason, such Convertible Debentures not purchased will be returned promptly, without expense, to the tendering Holder (or, in the case of Convertible Debentures tendered by book-entry transfer, such Convertible Debentures will be promptly credited to the account maintained at DTC from which Convertible Debentures were delivered) after the expiration or termination of the Offer.
3. Signatures on Letter of Transmittal. If any Convertible Debentures tendered hereby are held of record by two or more persons, all such persons must sign this Letter of Transmittal.
If any Convertible Debentures tendered hereby are registered in different names, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of such Convertible Debentures.
If this Letter of Transmittal is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Company of such person’s authority so to act must be submitted.
If this Letter of Transmittal is signed other than by the registered Holders of the Convertible Debentures listed, the Convertible Debentures must be endorsed or accompanied by appropriate instruments of transfer
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entitling the undersigned to tender the Convertible Debentures on behalf of such registered Holders, in any case signed exactly as the name or names of the registered Holders appear on the Convertible Debentures, with the signatures on the certificates or instruments of transfer guaranteed by a Medallion Signature Guarantor, unless the signature is that of an Eligible Institution.
4. Questions and Requests for Assistance or Additional Copies. Questions or requests for assistance may be directed to the Depositary and Information Agent or the Company (only with respect to the certificated Convertible Debentures) at its address and telephone numbers, as set forth on the front and back cover of this Letter of Transmittal. Requests for additional copies of the Offer to Purchase, this Letter of Transmittal, the IRS Form W-9 or the IRS Form W-9 instructions may be directed to the Depositary and Information Agent, and copies will be furnished promptly at the Company’s expense.
Requests for assistance relating to the terms and conditions of the Offer may be directed to the Dealer Manager at the telephone number and address set forth on the back cover of this Letter of Transmittal. Holders of Convertible Debentures may also contact their brokers, dealers, commercial banks, trust companies or other nominees for assistance concerning the offer.
5. Special Payment and Special Delivery Instructions. In the case that the check for payment of the Consideration, plus Accrued Interest, will be issued to a different name than the Holder signing this Letter of Transmittal, the tendering Holders should indicate in the applicable box, under the caption “Special Payment Instructions,” the name and address to which checks for payment are to be sent or issued and the taxpayer identification number of the person named must also be indicated. A Holder may request that Convertible Debentures not tendered or not accepted for purchase be (i) credited to an account at DTC or (ii) if the Holder of record holds physical Convertible Debentures, by delivery of a certificate representing such returned principal amount, in each case as such Holder may designate under the caption “Special Delivery Instructions.” If no instructions are given, checks for payment of the Consideration, plus Accrued Interest, will be sent to the Holder of the Convertible Debentures tendered and Convertible Debentures not tendered or not accepted for purchase will be returned by (i) crediting the account at DTC designated above or (ii) if the Holder of record holds physical Convertible Debentures, by delivery of a certificate representing such returned principal amount (including delivery of the original certificate tendered if none of such principal amount is accepted).
6. IRS Forms; Backup Withholding. Payments made to a tendering Holder that is a U.S. person for U.S. federal income tax purposes may be subject to backup withholding, unless such Holder provides the appropriate documentation to the Depositary and Information Agent including its taxpayer identification number (“TIN”) and certifying, among other things, that such TIN is correct, or such Holder otherwise establishes an exemption. Such Holder should use the Internal Revenue Service (“IRS”) Form W-9 provided in this Letter of Transmittal for this purpose and should (i) enter its name, federal tax classification, address and TIN on the face of the IRS Form W-9, (ii) if such Holder is a corporation or other entity that is exempt from backup withholding, provide its “Exempt payee code”, (iii) if such Holder is submitting the IRS Form W-9 for an account maintained outside the United States by certain foreign financial institutions and is exempt from FATCA reporting, provide its “Exemption from FATCA reporting code” and (iv) sign and date the IRS Form W-9 and return it to the Depositary and Information Agent. If such Holder does not provide its correct TIN and other required information or an adequate basis for exemption, payments made to such Holder will be subject to backup withholding (currently, at a rate of 24%) and such Holder may be subject to a penalty imposed by the IRS. If the Convertible Debentures being tendered by such Holder are in more than one name or are not in the name of their actual owner, such Holder should consult the instructions accompanying the IRS Form W-9 (the “W-9 Instructions”) for information on which TIN to report. If such Holder has not been issued a TIN, such Holder should consult the W-9 Instructions, and the Depositary and Information Agent may make backup withholding on payments to such Holder if the Depositary and Information Agent is not provided with a TIN by the time any such payment is made.
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Exempt Holders (including, among others, most corporations) are not subject to these information reporting and backup withholding requirements, provided that, if required, they properly demonstrate their eligibility for exemption. See the W-9 Instructions for additional instructions.
In order for a Holder that is not a U.S. person for U.S. federal income tax purposes to avoid backup withholding, such Holder should submit the appropriate version of IRS Form W-8 (available from the IRS website at http://www.irs.gov), signed under penalty of perjury, attesting to such Holder’s foreign status. The failure of such a Holder to provide the appropriate IRS Form W-8 may result in backup withholding on some or all of the payments made to such Holder pursuant to the Offer.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or credit against a Holder’s federal income tax liability provided the required information is furnished by such Holder on a timely basis to the IRS.
Any person that is not a Holder and that will receive payments in connection with this Letter of Transmittal should also submit IRS form(s) applicable to such person to the Depositary and Information Agent.
7. Transfer Taxes. Tendering Holders of Convertible Debentures purchased in the Offer will not be obligated to pay brokerage commissions or fees to the Company, the Dealer Manager, or the Depositary and Information Agent. The Company will pay or cause to be paid all transfer taxes with respect to the purchase of any Convertible Debentures in the Offer. If, however, payment is to be made to, or if Convertible Debentures not tendered or not accepted for purchase are to be registered in the name of or delivered to, any persons other than the registered Holders, the amount of any transfer taxes (whether imposed on the registered Holder or such other person) payable on account of the transfer to such other person will be deducted from the payment unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted. If your Convertible Debentures are held through a broker or other Nominee who tenders Convertible Debentures on your behalf, such broker or Nominee may charge you a commission for doing so. You should consult with your broker or Nominee to determine whether any charges will apply.
8. Irregularities. The Company, in its sole discretion, will determine all questions as to the form of documents and validity, eligibility (including time of receipt), acceptance for purchase and withdrawal of validly tendered Convertible Debentures, and such determinations will be final and binding. The Company reserves the absolute right to reject any and all tenders of Convertible Debentures that it determines are not in proper form or where the acceptance for purchase of, or payment for, such Convertible Debentures may, in the Company’s opinion, be unlawful. The Company also reserves the absolute right in its sole discretion to waive any of the conditions of the Offer or any defect or irregularity in the tender of Convertible Debentures of any particular Holder, whether or not similar conditions, defects or irregularities are waived in the case of other Holders. The Company’s interpretation of the terms and conditions of the Offer will be final and binding. Holders may challenge the Company’s determination in a court of competent jurisdiction.
Any defect or irregularity in connection with tenders of Convertible Debentures must be cured within such time as the Company determines, unless waived by the Company. Tenders of Convertible Debentures shall not be deemed to have been made until all defects or irregularities have been waived or cured. None of the Company, the Dealer Manager, the Depositary and Information Agent, the Trustee or any other person will be under any duty to give notification of any defects or irregularities in tenders or notices of withdrawal or will incur any liability for failure to give any such notification. If the Company waives its right to reject a defective tender of Convertible Debentures, the Holder will be entitled to the Consideration, plus Accrued Interest.
9. Waiver of Conditions; Termination of Offer. The Company expressly reserves the absolute right, in its sole discretion, to waive any of the conditions to the Offer in the case of any Convertible Debentures tendered, in whole or in part, at any time and from time to time until the Expiration Time. The Company also expressly reserves the absolute right, subject to applicable law, to terminate the Offer upon the occurrence of any of the
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conditions of the Offer at any time prior to the Expiration Time without accepting for purchase any Convertible Debentures that may have been tendered prior to such termination.
10. Partial Tenders (not applicable to Holders who tender by book-entry transfer). Tenders of Convertible Debentures will be accepted only in principal amounts of $1,000 or an integral multiple thereof. If less than the entire principal amount of any Debenture is tendered, the tendering Holder should fill in the principal amount tendered in the column entitled “Principal Amount of Convertible Debentures Tendered” under “Description of Convertible Debentures Tendered” above. The entire principal amount of the Convertible Debentures delivered to the Depositary and Information Agent or the Company, as applicable, will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Convertible Debentures is not tendered, then substitute Convertible Debentures for the principal amount of Convertible Debentures not tendered and purchased pursuant to the Offer will be sent to the Holder at his or her registered address, unless a different address is provided in the appropriate box on this Letter of Transmittal promptly after the delivered Convertible Debentures are accepted for partial tender.
IMPORTANT: THIS PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (OR MANUALLY SIGNED FACSIMILE THEREOF) OR A PROPERLY TRANSMITTED AGENT’S MESSAGE DELIVERED PURSUANT TO DTC’S ATOP, CONFIRMATION OF A BOOK-ENTRY TRANSFER OF CONVERTIBLE DEBENTURES, CERTIFICATES FOR CONVERTIBLE DEBENTURES (IF APPLICABLE) AND ANY OTHER DOCUMENTS REQUIRED BY THIS LETTER OF TRANSMITTAL MUST BE RECEIVED BY THE DEPOSITARY AND INFORMATION AGENT OR THE COMPANY, AS APPLICABLE, AT OR PRIOR TO THE EXPIRATION TIME.
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| Form W-9
(Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer Identification Number and Certification
u Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS.
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| Print or type See Specific Instructions on page 3.
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1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
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2 Business name/disregarded entity name, if different from above
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| 3 Check appropriate box for federal tax classification of the
person whose name is entered on line 1. Check only one of the
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4 Exemptions (codes apply only to
Exempt payee code (if any)
Exemption from FATCA reporting code (if any)
(Applies to accounts maintained outside the U.S.)
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| ☐ Individual/sole proprietor or single-member LLC
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☐ | C Corporation | ☐ | S Corporation | ☐ | Partnership | ☐ | Trust/estate | ||||||||||||||
| ☐ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) u
Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC
☐ Other (see instructions) u
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5 Address (number, street, and apt. or suite no.) See instructions.
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Requester’s name and address (optional) | |||||||||||||||||||||
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6 City, state, and ZIP code
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7 List account number(s) here (optional)
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Part I |
Taxpayer Identification Number (TIN) | |
| Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
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Social security number
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| - |
- | |||||||||||||||||||||||
| or | ||||||||||||||||||||||||
| Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
Employer identification number |
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| - |
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| Part II | Certification |
Under penalties of perjury, I certify that:
| 1. | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and |
| 2. | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and |
| 3. | I am a U.S. citizen or other U.S. person (defined below); and |
| 4. | The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
| Sign Here |
Signature of U.S. person u |
Date u |
| Cat. No. 10231X | Form W-9 (Rev. 10-2018) | |||
| Form W-9 (Rev. 10-2018) |
Page 2 |
| Form W-9 (Rev. 10-2018) |
Page 3 |
| Form W-9 (Rev. 10-2018) |
Page 4 |
| Form W-9 (Rev. 10-2018) |
Page 5 |
| Form W-9 (Rev. 10-2018) |
Page 6 |
In order to tender book-entry Convertible Debentures, a Holder should send or deliver a properly completed and signed Letter of Transmittal and any other required documents to the Depositary and Information Agent at its address set forth below or tender pursuant to DTC’s ATOP. Questions or requests for assistance relating to the procedures for tendering Convertible Debentures or for additional copies of the Offer Documents may be directed to the Depositary and Information Agent at its telephone number and address set forth below.
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers call: (212) 269-5550
Toll free: (866) 856-3065
Email: sunpower@dfking.com
By facsimile:
(For Eligible Institutions only)
(212) 709-3328
Confirmation:
(212) 269-5552
By Mail, Overnight Courier or Hand:
Attn: Andrew Beck
48 Wall Street
New York, New York 10005
In order to tender certificated Convertible Debentures, a Holder should send or deliver a properly completed and signed Letter of Transmittal, certificates for the Convertible Debentures and any other required documents to the Company at its address set forth below. Questions or requests for assistance relating to the procedures for tendering certificated Convertible Debentures.
SunPower Corporation
Attn: Treasury Department
51 Rio Robles
San Jose, California 95134
(408) 240-5500
Requests for assistance relating to the terms and conditions of the Offer may be directed to the Dealer Manager at the telephone number and address set forth below. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer or requests for additional copies of the Offer Documents.
The Dealer Manager for the Offer is:
BofA Securities, Inc.
Attention: Liability Management Group
620 S. Tryon Street, 20th Floor
Charlotte, North Carolina 28255
Collect: (980) 387-9534
debt_advisory@bofa.com