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8-K/A - FORM 8-K/AMENDMENT NO. 1 - SUNEDISON, INC.d8ka.htm
EX-99.3 - UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL INFORMATION - SUNEDISON, INC.dex993.htm
EX-99.1 - SUNEDISON FINANCIAL STATEMENTS WITH REPORT OF INDEPENDENT AUDITORS - SUNEDISON, INC.dex991.htm
EX-23.1 - CONSENT OF INDEPENDENT AUDITORS - SUNEDISON, INC.dex231.htm

Exhibit 99.2

SUN EDISON LLC

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands)

(Unaudited)

 

     September 30,
2009
    December 31,
2008
 

ASSETS

    

Current Assets

    

Cash and cash equivalents

   $ 14,690      $ 36,713   

Accounts receivable (net of allowance for doubtful accounts of $147 and $1,330 as of September 30, 2009, and December 31, 2008, respectively)

     9,263        4,600   

Inventories

     42,364        76,757   

Restricted cash

     46,644        28,780   

VAT receivable

     2,648        9,759   

Prepaid expenses and other current assets

     19,804        9,338   
                

Total current assets

     135,413        165,947   
                

Property and equipment, net

     322,041        278,908   

Goodwill

     1,584        1,584   

Other intangible assets, net

     —          48   

Restricted cash, less current portion

     986        2,460   

Other long term assets

     7,907        5,770   
                

Total non-current assets

     332,518        288,770   
                

TOTAL ASSETS

   $ 467,931      $ 454,717   
                

LIABILITIES AND MEMBERS’ (DEFICIT) EQUITY

    

Current Liabilities

    

Accounts payable

   $ 36,340      $ 51,961   

Accrued equity-based compensation

     7,272        7,829   

Other accrued expenses

     29,055        32,802   

Deferred revenue

     36        962   

Current portion of notes payable and capital leases

     85,492        93,661   
                

Total current liabilities

     158,195        187,215   
                

Notes payable and capital leases, net of current portion

     293,267        225,224   

Deferred subsidy revenue, net of current portion

     15,344        10,878   

Other long-term liabilities

     2,243        365   
                

Total Liabilities

     469,049        423,682   
                

Members’ (Deficit) Equity:

    

Class A Units (Authorized units - 2,500; 1,201 and 1,191 units issued and outstanding, as of Sept. 30, 2009 and December 31, 2008, respectively)

     21,955        20,652   

Class B Units (Authorized units - 200; 200 units issued and outstanding, as of Sept. 30, 2009 and December 31, 2008, respectively)

     2,592        2,592   

Class C Units (Authorized) units - 2,000; 1,840 units issued and outstanding, as of Sept. 30, 2009 and December 31, 2008, respectively)

     268,049        268,049   

Class D Units (Authorized units - 300; 41 units issued and outstanding as of Sept. 30, 2009 and December 31, 2008, respectively)

     9,000        9,000   

Accumulated other comprehensive loss

     (1,718     (2,338

Additional paid-in capital

     11,018        4,825   

Accumulated deficit

     (319,262     (276,729
                

Total Sun Edison members’ (deficit) equity

     (8,366     26,051   

Noncontrolling Interests

     7,248        4,984   
                

Total Equity

     (1,118     31,035   
                

TOTAL LIABILITIES AND MEMBERS’ (DEFICIT) EQUITY

   $ 467,931      $ 454,717   
                

See accompanying notes to the condensed consolidated financial statements.


SUN EDISON LLC

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands)

(Unaudited)

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2009     2008     2009     2008  

Revenue:

        

Sale of PV systems

   $ 15,736      $ 22,866      $ 66,507      $ 24,159   

Energy system rentals

     4,069        2,806        12,437        6,378   

Incentive and SREC revenue

     7,093        3,536        16,845        8,275   

Operations and maintenance revenues

     369        291        858        849   
                                

Total revenue

     27,267        29,499        96,647        39,661   
                                

Cost of revenue

        

Cost of revenue - sale of PV Systems

     21,191        20,039        67,055        21,601   

Costs of revenue - energy systems rentals

     2,823        2,272        9,037        4,491   
                                

Total cost of revenue

     24,014        22,311        76,092        26,092   
                                

Gross profit

     3,253        7,188        20,555        13,569   

Operating expenses

        

Selling, general and administrative

     9,712        36,503        48,185        74,203   

Impairment of long-lived assets and goodwill

     —          —          —          22,173   

Depreciation and amortization

     1,036        774        3,238        2,695   
                                

Total operating expenses

     10,748        37,277        51,423        99,071   

Loss from operations

     (7,495     (30,089     (30,868     (85,502

Other income (expense)

        

Interest expense

     (5,565     (3,441     (14,800     (9,184

Interest income

     641        315        1,650        1,332   

Foreign currency gains (losses)

     2,762        (7,117     1,575        (5,494

Other income (expense)

     (126     (741     32        (716
                                

Total other income (expense)

     (2,288     (10,984     (11,543     (14,062

Loss before income taxes

     (9,783     (41,073     (42,411     (99,564

Income tax expense

     (282     (36     (287     (261
                                

Net loss

     (10,065     (41,109     (42,698     (99,825

Net loss attributable to noncontrolling interests

     (227     (27     (165     (27
                                

Net loss attributable to Sun Edison unit holders

   $ (9,838   $ (41,082   $ (42,533   $ (99,798
                                

See accompanying notes to the condensed consolidated financial statements.

 

2


SUN EDISON LLC

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

(Unaudited)

 

     Nine Months Ended
September 30,
 
     2009     2008  

Cash flows from operating activities:

    

Net Loss

   $ (42,698   $ (99,825

Adjustments to reconcile net loss to net cash used in operating activities:

    

Depreciation and amortization expense

     9,788        5,573   

Stock-based compensation expense

     6,939        23,402   

Impairment of long-lived assets and goodwill

     —          22,173   

Deferred tax provision

     —          273   

Change in operating assets and liabilities:

    

VAT receivable

     7,111        (2,567

Account receivable

     (4,633     3,320   

Inventory

     58,370        (74,194

Other assets

     (12,603     (13,141

Accounts payable and accrued expenses

     (17,975     19,128   

Deferred revenue

     3,540        2,759   

Other

     4,563        1,289   
                

Net cash provided by (used in) operating activities

     12,402        (111,810
                

Cash flows from investing activities:

    

Restricted cash

     (16,390     (15,164

Payment for acquisitions, net of cash acquired

     —          (5,857

Purchase of property and equipment

     (1,060     (7,689

Construction of property and equipment - solar power generating systems

     (80,852     (118,580

Other

     —          (594
                

Net cash used in investing activities

     (98,302     (147,884
                

Cash flows from financing activities:

    

Proceeds from notes payable

     43,650        93,637   

Repayments of notes payable

     (32,144     (51,984

Proceed from sale-capital leasebacks

     28,708        94,934   

Proceed from financing obligations

     32,805        9,207   

Repayment of capital leases

     (8,388     (5,812

Member cash contributions

     —          86,149   
                

Net cash from financing activities

     64,631        226,131   
                

Effect of Exchange Rate Changes on Cash and Cash Equivalents

     (754     1,050   
                

Net decrease in cash and cash equivalents

     (22,023     (32,513

Cash and cash equivalents at beginning of period

     36,713        81,953   
                

Cash and cash equivalents at end of period

   $ 14,690      $ 49,440   
                

See accompanying notes to the condensed consolidated financial statements.

 

3


SUN EDISON LLC

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(Unaudited)

 

1. BASIS OF PRESENTATION

The accompanying unaudited condensed consolidated financial statements of Sun Edison LLC (together with its subsidiaries, the “Company” or “Sun Edison”), a Delaware limited liability company, in the opinion of management, include all adjustments (consisting of normal, recurring items) necessary to present fairly our financial position and results of operations and cash flows for the periods presented. Sun Edison has presented the condensed consolidated financial statements in accordance with the Securities and Exchange Commission’s (“SEC”) requirements of Form 10-Q and Article 10 of Regulation S-X and consequently, these financial statements do not include all disclosures required by U.S. generally accepted accounting principles (“US GAAP”). These unaudited condensed consolidated financial statements should be read in conjunction with the consolidated financial statements of Sun Edison for the year ended December 31, 2008. Operating results for the three and nine-month periods ended September 30, 2009 are not necessarily indicative of the results that may be expected for the year ending December 31, 2009.

In preparing the financial statements, the Company uses estimates and assumptions that may affect reported amounts and disclosures. Estimates are used when accounting for lease classification, depreciation, amortization, accrued liabilities, employee benefits, derivatives, stock based compensation, income taxes, inventory valuation and asset valuation allowances, among others. To the extent there are material differences between the estimates and actual results, our future results of operations would be affected.

Certain prior year amounts relating to noncontrolling interests have been reclassified to conform to the current year presentation (see Note 2).

 

2. SIGNIFICANT ACCOUNTING POLICIES

On July 1, 2009, the Company adopted the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 105-10 (“ASC 105-10”). ASC 105-10 establishes the FASB Accounting Standards Codification (the “Codification”) as the source of authoritative accounting principles recognized by the FASB to be applied in the preparation of financial statements in conformity with US GAAP. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative US GAAP for SEC registrants under the Codification. All guidance contained in the Codification carries an equal level of authority. The Codification superseded all existing non-SEC accounting and reporting standards. All other non-grandfathered, non-SEC accounting literature not included in the Codification is non-authoritative. The adoption of this accounting standard did not have a material impact on the Company’s financial statements.

Revenue Recognition

In cases in which the Company constructs a solar energy system (“SES”) with the intention of retaining ownership, the SES is recorded under Property and Equipment and placed into operation. In certain cases, the Company may receive an offer to sell the SES to a third party shortly after it is placed into operation. If the sale is made, the Company will subsequently transfer the SES into inventory and recognize the revenue as a Sale of PV Systems.

Multiple Element Arrangements

When more than one element such as solar energy systems and services are sold together in a single arrangement, revenue is recognized using the residual method as prescribed by ASC 605-25. Under the residual method, and provided that each element meets the criteria for treatment as a separate unit of accounting, the Company defers revenue for the fair value of the undelivered elements based on vendor specific objective evidence of fair value (“ VSOE ”), and the remaining portion of the arrangement fee is allocated to the delivered elements and recognized as revenue when all the other criteria for revenue recognition are met. An element is considered a separate unit of accounting if it has value to the customer on a standalone basis and there is objective and reliable evidence of the fair value of the undelivered elements. VSOE of fair value for the Company’s services, including maintenance agreements, are based upon standalone sales of those services.

Costs of revenue - energy systems rentals

The costs of revenue for energy system rentals include depreciation and amortization of $2,185, $1,167, $6,552 and $2,878 in the three and nine months ended September 30, 2009 and 2008, respectively.

 

4


Noncontrolling Interests

Effective January 1, 2009, the Company adopted additional guidance included in ASC 810, “Consolidation”, which amends prior guidance to establish accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary. It clarifies that a noncontrolling interest in a subsidiary, which is sometimes referred to as minority interest, is an ownership interest in the consolidated entity that should be reported as equity in the consolidated financial statements. Among other requirements, this guidance requires consolidated net income to be reported at amounts that include the amounts attributable to both the parent and the noncontrolling interest. It also requires disclosure, on the face of the consolidated income statement, of the amounts of consolidated net income attributable to the parent and to the noncontrolling interest.

The Company now includes noncontrolling interests in consolidated net income for current and prior periods. Comprehensive income attributable to the noncontrolling interests is deducted from consolidated comprehensive income to arrive at the comprehensive income attributable to Sun Edison unitholders. Noncontrolling interests have also been reclassified to equity for current and prior periods on the condensed consolidated balance sheet and members’ equity (see Note 9). The adoption of this guidance did not have a material impact on our financial statements.

Derivative Instruments

Effective January 1, 2009, the Company adopted additional guidance included in ASC 815, “Derivatives and Hedging”, which is intended to improve transparency in financial reporting by requiring enhanced disclosures of an entity’s derivative instruments and hedging activities and their effects on the entity’s financial position, financial performance and cash flows.

Cash Flow Hedging Strategy

The Company uses cash flow hedges to minimize the variability in cash flows of assets or liabilities or forecasted transactions caused by fluctuations in foreign currency exchange rates or interest rates. The changes in the fair values of derivatives designated as cash flow hedges are recorded in accumulated other comprehensive income (“AOCI”) and are reclassified into the line item in the consolidated income statement in which the hedged items are recorded in the same period the hedged items affect earnings. The changes in fair values of hedges that are determined to be ineffective are immediately reclassified from AOCI into earnings.

Interest Rate Risk

The Company uses interest rate swap agreements to mitigate exposure to interest rate fluctuations associated with certain debt instruments. As of September 30, 2009 the Company held $49,724 of long term loans due in 2024-2027 with variable interest rates. Certain wholly owned subsidiaries of the Company entered into three interest rate swap instruments in 2008 to hedge the variability of the interest payments due to changes in the interest rates. The Company has applied hedge accounting to all three instruments. The Company concluded that the instruments are perfectly effective by way of the “short-cut method” in accordance with ASC 815. Under the swap agreements, the Company pays the fixed rate and the counterparties to the agreements pay the Company a floating interest rate based on the table below. The counterparties to these agreements are international financial institutions. The Company estimates the net fair value of these instruments as of September 30, 2009, to be a liability of approximately $840. The fair value is an estimate of the net amount that the Company would pay on September 30, 2009, if the agreements were transferred to other parties or cancelled by the Company.

Foreign Currency Exchange Risk

The Company maintains a foreign currency cash flow hedging program to reduce the risk that our U.S. dollar net cash inflows from sales outside the United States and U.S. dollar net cash outflows from procurement activities will be adversely affected by changes in foreign currency exchange rates. The Company enters into forward contracts to hedge certain portions of forecasted cash flows denominated in foreign currencies. When the dollar strengthens significantly against the foreign currencies, the decline in the present value of future foreign currency cash flows is partially offset by gains in the fair value of the derivative instruments.

The Company entered into three foreign currency forward instruments in December 2008 and applied hedge accounting to all three instruments in accordance with ASC 815. The counterparty to these agreements is an international financial institution. All three of these foreign currency forward instruments settled during the nine months ended September 30, 2009, resulting in $133 of other comprehensive income being reclassified from accumulated other comprehensive income in the income statement.

 

5


The following table presents the fair values of derivative instruments included in the Company’s condensed consolidated balance sheet as of September 30, 2009 (in thousands):

 

Derivatives designated for hedge accounting under ASC 815

  

Balance Sheet Location

   Fair Value as of
September 30, 2009
 

Interest rate swap #1 – Borges Blanques 1

   Other Accrued Expenses    $ (850

Interest rate swap #2 – Juneda

   Other Accrued Expenses      (347

Interest rate swap #3 – SunE Sky First Light

   Other Current Assets      357   

In addition, the condensed consolidated balance sheet as of September 30, 2009 includes the HSH Warrant. This is a derivative not designated as a hedge relationship under ASC 815, with an estimated fair value of ($378). It was recorded in Other Accrued Expenses. See Note 9 for additional information regarding the HSH Warrant.

The following tables present the amounts related to derivative instruments affecting the condensed consolidated statement of operations for the three and nine months ended September 30, 2009 (in thousands):

 

     Amount of Gain (Loss)
Recognized in Other
Comprehensive Income on
Derivatives
        Amount of Gain (Loss)
Reclassified from
Accumulated Other
Comprehensive Income into
Income
 

Derivative Type

   Three
Months
Ended
September 30,
2009
    Nine Months
Ended
September 30,
2009
  

Location of Gain (Loss)

Reclassified from

Accumulated Other

Comprehensive Income

into Income

   Three
Months
Ended
September 30,
2009
   Nine
Months
Ended
September 30,
2009
 

Derivatives designated as cash flow hedges under ASC 815:

        

Foreign exchange forward contracts

   $ —        $ 56    Other income (expense)    $ —      $ (133

Interest rate swaps

     (1,124     1,475         n/a      n/a   
                                 

Total derivatives designated as cash flow hedges

   $ (1,124   $ 1,531       $ —      $ (133
                                 

Subsequent Events

During the second quarter of 2009, the Company adopted ASC 855 Subsequent Events (formerly Statement of Financial Accounting Standards (“SFAS”) No. 165, “Subsequent Events”) which establishes general standards of accounting for and disclosure of events that occur after the balance sheet date but prior to the issuance of the financial statements. In response to this guidance, the Company has evaluated subsequent events through February 3, 2010 which is the date that the Company’s condensed consolidated financial statements were available to be issued. SunEdison had nonrecognizable events on October 15, 2009, November 4, 2009 and November 20, 2009 as discussed in Note 11.

 

6


3. OTHER COMPREHENSIVE LOSS

Comprehensive loss was as follows (in thousands):

 

     Three months ended
September 30,
    Nine Months ended
September 30,
 
     2009     2008     2009     2008  

Net loss

   $ (10,065   $ (41,109   $ (42,698   $ (99,825

Other comprehensive income (loss):

        

Interest Rate Swaps

     (1,124     (321     1,475        (321

Foreign exchange forward contracts

     —          —          56        —     

Foreign currency translation adjustment

     (965     554        (779     1,050   

Net unrealized (gains) losses reclassified into earnings

     —          —          (133     —     
                                
     (2,089     233        619        729   
                                

Total comprehensive loss

     (12,154     (40,876     (42,079     (99,096

Net loss attributable to non-controlling interests

     (227     (27     (165     (27
                                

Comprehensive loss attributable to Sun Edison unit holders

   $ (11,927   $ (40,849   $ (41,914   $ (99,069
                                

 

4. INVENTORIES

Summarized inventory data is shown in the following table (in thousands):

 

     September 30,
2009
   December 31,
2008

Raw materials

   $ 26,149    $ 53,026

Work–in–process

     16,215      23,731
             

Total inventory

   $ 42,364    $ 76,757
             

 

5. PROPERTY AND EQUIPMENT

Property, Equipment and Leased Solar Energy Systems consists of the following (in thousands):

 

     September 30,
2009
   December 31,
2008

Land

   $ 891    $ —  

Machinery and equipment

     14,539      14,228

Vehicles

     2,550      3,386

Leasehold improvements

     1,975      1,833

Asset retirement costs

     2,853      2,173
             
     22,808      21,620

Less: Property and equipment accumulated depreciation and amortization

     6,358      3,657
             

Total property and equipment, net

     16,450      17,963

Construction in-progress – solar energy systems

     65,738      46,103

Solar energy systems

     299,563      267,997
             

Total gross solar energy systems

     365,301      314,100

Less: deferred gains on sale/leaseback transactions

     48,225      47,740
             
     317,076      266,360

Less: solar energy systems accumulated depreciation and amortization

     11,485      5,415
             

Total solar energy systems, net

     305,591      260,945
             

Total Property, Equipment and Leased Solar Energy Systems, net

   $ 322,041    $ 278,908
             

 

7


Total depreciation expense was $3,221 and $1,846 for the quarters ended September 30, 2009 and 2008, respectively, and $9,739 and $4,481 for the nine months ending September 30, 2009 and 2008, respectively. The Company recorded $2,185 and $1,167 for the quarters ending September 30, 2009 and 2008, respectively, and $6,552 and $2,878 for the nine months ending September 30, 2009 and 2008, respectively, of amortization expense related to assets recorded under capital leases, which is included in depreciation expense. Depreciation expense was reduced by amortization of deferred gain in the amount of $466 and $300 for the quarters ending September 30, 2009 and 2008, respectively, and $1,377 and $691 for the nine months ending September 30, 2009 and 2008, respectively.

 

6. FAIR VALUE MEASUREMENTS

The following tables present our assets and liabilities that are measured at fair value on a recurring basis and are categorized using the fair value hierarchy. The fair value hierarchy has three levels based on the reliability of the inputs used to determine fair value. Level 1 refers to fair values determined based on quoted prices in active markets for identical assets. Level 2 refers to fair values estimated using significant other observable inputs, and Level 3 includes fair values estimated using significant non-observable inputs. All assets and liabilities that are measured at fair value on a recurring basis are measured using Level 2 inputs.

 

     Fair Value Measurements as of
September 30, 2009
    

(in thousands)

Description

   Total    Level 2

Assets:

     

Time deposits

   $ 1,100    $ 1,100

Interest rate swaps

     357      357
             

Total assets

   $ 1,457    $ 1,457
             

Liabilities:

     

Interest rate swaps

   $ 1,197    $ 1,197
             

Total liabilities

   $ 1,197    $ 1,197
             
     Fair Value Measurements as of
December 31, 2008
    

(in thousands)

Description

   Total    Level 2

Assets:

     

Time deposits

   $ 1,407    $ 1,407

Forward foreign currency contracts

     77      77
             

Total assets

   $ 1,484    $ 1,484
             

Liabilities:

     

Interest rate swaps

   $ 2,309    $ 2,309
             

Total liabilities

   $ 2,309    $ 2,309
             

The Company’s time deposits, forward foreign currency contracts and interest rate swaps are classified within Level 2 of the fair value hierarchy because they are valued primarily using alternative pricing sources and models utilizing market observable inputs with reasonable levels of price transparency.

 

8


7. NOTES PAYABLE AND CAPITAL LEASES

Notes payable and capital leases consist of the following (in thousands):

 

     September 30,
2009
   December 31,
2008

Revolving Credit Facilities, LIBOR plus 3.0%, December 31, 2009

   $ 31,972    $ 44,121

Bridge Note, LIBOR plus 8.5%, March 10, 2010

     30,000      30,000

Capital Leases – 6.9% – 13.0%

     129,524      115,603

Finance Obligations – 4.0% – 5.7%

     130,415      97,610

Special-Purpose Limited Recourse Debt:

     

Fortis Credit Facility, EURIBOR plus 1.5%, 2027

     15,459      15,034

SunE Sky LP, due 2024

     34,265      11,031

Shareholder Notes, 12%, due December 31, 2009

     3,627      3,655

Utility Solar Loan, 11.11%, due 2024

     1,601      —  

Other

     1,896      1,831
             
     378,759      318,885

Less: current portion

     85,492      93,661
             

Long-term debt and capital leases

   $ 293,267    $ 225,224
             

Capital Leases and Finance Obligations

On February 11, 2009, the Company executed a master lease agreement with an institutional investor. This agreement provides for the sale and simultaneous leaseback of certain solar power generation equipment constructed by the Company and calls for a total maximum commitment by the investor of $20,000.

On September 30, 2009, the Company executed a master lease agreement with an institutional investor. This agreement provides for the sale and simultaneous leaseback of certain solar power generation equipment constructed by the Company and calls for a total maximum commitment by the investor of $25,000.

The total funding commitment from investors at September 30, 2009, was $101,600. As of September 30, 2009, the Company executed 208 such lease transactions at approximately $324,314. Generally, the terms of the leases are 20 years with certain leases providing terms as low as 10 years and provide for an early buyout option. The specified rental payments are based on projected cash flows that the solar energy systems are expected to generate.

Future payments under our non-cancelable capital and operating leases, including the sale-leaseback transactions are as follows (in thousands):

As of September 30, 2009

 

     Capitalized Leases     Operating Leases    Total

2009

   11,866      579    12,445

2010

   21,207      1,835    23,042

2011

   19,734      1,564    21,298

2012

   18,554      979    19,533

2013

   12,360      481    12,841

Thereafter

   122,675      84    122,759
               

Total minimum lease payments

   206,396      5,522    211,918
           

Less amounts representing interest

   (76,872     
           

Present value of minimum lease payments

   129,524        

Less current portion of obligations under capital leases

   (15,266     
           

Non-current portion of obligations under capital leases

   114,258        
           

 

9


Bridge Note ($30,000)

On September 11, 2009, the Company amended its senior secured credit agreement (“the Amended Bridge Note”) with HSH that had expired on July 15, 2009. The Amended Bridge Note extended the maturity date to March 31, 2010, for $10,000 and to July 15, 2010, for the remaining $20,000. Under the terms of the Amended Bridge Note, the interest rate is Libor plus 8.5% with a $1,000 extension fee due on November 30, 2009. The Amended Bridge Note also required a mandatory prepayment upon a change of control. In connection with securing the Amended Bridge Note, the Company issued two warrants to HSH. Please refer to Note 9 for additional information on the warrants. On November 20, 2009 the Bridge Note was repaid in full to HSH with no obligations remaining on the debt or warrants. See Note 11 for further detail.

The Company’s rent expense was $561 and $503 for the quarters ending September 30, 2009 and 2008, respectively, and $1,846 and $1,461 for the nine months ending September 30, 2009 and 2008, respectively. The gross amount of assets recorded under capital leases are summarized in the following table and included in property and equipment.

 

In thousands

   September 30,
2009
    December 31,
2008
 

Solar power generating systems

   $ 101,047      $ 78,939   

Vehicles

     495        1,099   

Machinery and equipment

     3,270        2,928   
                

Total

     104,812        82,966   

Accumulated amortization

     (6,057     (2,707
                

Net book value

   $ 98,755      $ 80,259   
                

 

8. INCOME TAXES

In current and prior years, the Company operated as a limited liability company (LLC) and, accordingly, was not subject to U.S. federal and state taxes. Instead, income is passed through to the Company members and the members are subject to U.S. federal and state and international taxes. However, certain U.S. subsidiaries are corporations and are subject to U.S. federal and state income taxes, and the Company’s foreign operations are subject to tax in their local jurisdictions.

The Company recorded a tax provision of $287 representing federal, state, and foreign income taxes based on estimated annualized earnings for the nine months ended September 30, 2009. Net operating loss carry forwards are estimated at $49,060 and $19,685 as of September 30, 2009, and December 31, 2008, respectively. If unused, $32,979 expire between 2009 and 2028. The remainder, totaling $16,081 at September 30, 2009, may be carried forward indefinitely. The Company reviewed the realizability of the net operating losses of the US subsidiaries and recorded a full valuation allowance against them. The Company reached this position based on the cumulative loss position and uncertainty of future taxable income.

 

9. MEMBERS EQUITY AND STOCK BASED COMPENSATION

The following table presents the change in total members’ equity for the nine months ended September 30, 2009.

 

In thousands

   Sun Edison
Members’ Equity
    Non-controlling
Interests
    Total  

Balance, January 1, 2009

   $ 26,051      $ 4,984      $ 31,035   

Net loss

     (42,533     (165     (42,698

Other comprehensive income (loss), net of tax

     619        —          619   

Stock compensation

     6,193        —          6,193   

Purchase of subsidiary shares from noncontrolling interest

     —          2,429        2,429   

Issuance of Class A units

     1,304        —          1,304   
                        

Balance, September 30, 2009

   $ (8,366   $ 7,248      $ (1,118
                        

 

10


Stock-based Compensation

In February 2009, the Company reset the hurdle price of all UARs granted between 12/19/07 and 10/30/2008 to $5.94. The repricing resulted in a one-time expense charged to selling, general, and administrative expense on the statement of operations of $260. Compensation expense related to the repricing of these UARs was $64 and $399 for the three months and the nine months ending September 30, 2009, respectively. As of September 30, 2009, there was $667 of total unrecognized compensation cost (net of expected forfeitures) related to unamortized UAR compensation expense, which is expected to be recognized over a weighted average period of 2.95 years.

Unit Appreciation Rights

2008 UAR Plan

The Company granted 2,803,500 and 4,231,729 Unit Appreciation Rights (UARs) during the quarter and nine months ending September 30, 2009, respectively. The Black-Scholes-Merton weighted-average value of the UARs granted was $5.94 and $8.89 for the quarters ending September 30, 2009 and 2008, respectively, and $5.94 and $8.89 for the nine months ending September 30, 2009 and 2008, respectively. Compensation expense charged to selling, general, and administrative expense on the statement of operations, including the repricing charge was $900 and $3,200 for the quarters ending September 30, 2009 and 2008, respectively, and $6,200 and $3,300 for the nine months ending September 30, 2009 and 2008, respectively. As of September 30, 2009, there was $29,900 of total unrecognized compensation cost (net of expected forfeitures) related to unamortized UAR compensation expense which is expected to be recognized over a weighted average period of 3.28 years.

The following is a summary of the Company’s UARs and changes during the nine months ended September 30, 2009:

 

     Number of
UARs
    Weighted
Average
Exercise Price
(1)
   Remaining
Contractual
Term
   Aggregate
Intrinsic Value

UARs outstanding December 31, 2008

   5,976,123      $ 5.928      

UARs granted

   4,231,729        5.940      

UARs cancelled

   (1,810,225     5.928      
                  

UARs outstanding September 30, 2009

   8,397,627      $ 5.934    9.23    $ —  
                        

UARs expected to vest at September 30, 2009

   7,009,707      $ 5.934    9.21    $ —  
                        

UARs vested and exercisable at September 30, 2009

   1,206,406      $ 5.934    8.78    $ —  
                        

 

(1) Adjusted for the February 2009 repricing as noted above.

The Company’s formula uses the following average values and weighted-average assumptions in valuing the UARs for the nine months ended September 30, 2009 and 2008.

 

     Three months ended
September 30,
  Nine months ended
September 30,
     2009   2008   2009   2008

Third-party valuation of FMV on grant date

   $5.94   $8.89   $5.94   $8.89

Hurdle rate

   $5.94   $8.89   $5.94   $8.89

Expected remaining term

   6.25 years   6.25 years   6.25 years   6.25 years

Volatility

   91.3%   76.1%   89.2% - 91.3%   70.6% - 76.1%

Risk-free interest rate

   3.19%   3.38%   2.32% - 3.19%   3.38% - 3.61%

Dividend yield

   0.00%   0.00%   0.00%   0.00%

 

11


Warrants

In connection with the amendment to the Amended Bridge Note as discussed in Note 7, the Company issued two warrants to HSH for purchases of Company units exercisable under various circumstances. The warrants are designated as a derivative instrument not subject to hedge accounting per ASC815. Approximately $378 was booked to a liability in September, 2009. See Note 11 for further information.

The full warrant entitles HSH to purchase $30,000 of the Company units at the valuation of the Company as of the next potential equity financing round if it occurs by September, 2010.

Issuance of Class A Units

As a result of the Company’s acquisition on December 18, 2008 of 100% of the issued and outstanding shares of BISS Business Institute Solar Strategy GmbH (“BISS”), a company organized under the laws of Germany, the Company issued nine Class A units valued at $1,300 during the nine months ended September 30, 2009. These were related to employment agreements and, accordingly, were considered to be compensation expense. This expense was recognized ratably over the first six months of 2009 according to the terms of the employment agreements.

 

10. PURCHASE AND OTHER COMMITMENTS AND CONTINGENCIES

During the nine months ending September 30, 2009, the Company terminated, without penalty, three solar module supplier agreements, which termination eliminated $1.1 billion in future purchase commitments. In addition, during this period, the Company had unfulfilled purchase commitments with three solar module suppliers of $49,900 with potential liquidated damages of $1,500. The Company is currently negotiating settlements of these agreements. See Note 11 for further information.

Legal Proceedings

In the normal course of business, the Company has been named as a defendant in various legal actions such as contract disputes, employment-related claims and other various claims seeking monetary damages. The claims are in various stages of proceedings and some may ultimately be brought to trial. The Company maintains general liability, professional liability and employment practices liability insurance in amounts that it believes are appropriate, with varying deductibles for which it maintains reserves. Although the results of pending litigation are always uncertain, the Company does not believe the results of such actions currently threatened or pending, including those described below, will individually or in the aggregate, have a material adverse effect on the Company’s consolidated financial position or results of operations.

The Company is a defendant in a lawsuit filed in Maryland state court in December 2008 by a former executive officer of the Company and unit holder in which the plaintiff asserts claims for, among other things, violation of Maryland securities laws in connection with a tender offer that was made by the Company to holders of unit appreciation rights in July 2008, fraud and breach of his employment agreement. The plaintiff subsequently filed an amended complaint in February 2009, adding a request for declaratory judgment. The parties are currently engaged in discovery. Under all claims in the aggregate, the plaintiff is asking for $65,000 in damages, plus the severance and other benefits provided for under his employment agreement. The Company has accrued the severance amounts payable under the defendant’s employment agreement. The Company notes that its D&O and EPLI insurance provider has threatened to rescind coverage for this claim. The Company has not recorded a liability for the plaintiff’s other claims. This case was settled on November 20, 2009 (see Note 11).

The Company’s Enflex Corp. (“Enflex”) subsidiary is a defendant in a federal district court action filed in Arizona by the widow of a former stockholder in the predecessor corporation to Enflex. These claims pre-date the Company’s January 2008 acquisition of Enflex. The plaintiff alleges that another former individual stockholder of pre-acquisition Enflex, also a defendant in the suit, among other things, engaged in securities fraud and breached fiduciary duties by misrepresenting to plaintiff that her inherited shares in Enflex were worthless and thus induced her to transfer her shares for an amount below their true value. The Company’s Enflex subsidiary, as a successor, filed a motion to dismiss the complaint in April 2009. In October 2009, the court dismissed securities and fiduciary claims against the Enflex successor entity, but declined to dismiss other pending claims. The Company is indemnified against the claims raised in the suit pursuant to the terms of the Company’s merger agreement with Enflex by certain of the original EnFlex stockholders, and such indemnification has been preserved notwithstanding the settlement agreement entered into in October 2009 to resolve certain actual and potential claims relating to the Company’s acquisition of Enflex.

 

12


11. SUBSEQUENT EVENTS

EnFlex Settlement Agreement

On October 15, 2009, the Company entered into a settlement agreement with the former owners of EnFlex Corporation (“EnFlex”). Under the terms of the agreement, the former owners of EnFlex forfeited $3,300 of shareholder notes and the rights to receive $6,100 of Class A units related to contingent purchase consideration in exchange for $200 and certain intellectual property rights from the Company in the form of a licensing agreement.

Solar Panel Purchase Termination Agreement

On November 4, 2009, the Company entered into an agreement with a solar module supplier, terminating $17,350 in purchase commitments for 2009. There was no breakage fee or penalty associated with termination of the agreement.

Merger Agreement

On November 20, 2009, the Company agreed to be acquired by MEMC Electronic Materials, Inc. (“MEMC”), a leading provider of silicon wafers to the semiconductor and solar industries.

Under the terms of the agreement, all of the outstanding units of SunEdison were sold to MEMC in exchange for a cash payment and MEMC shares issued to the unitholders of $145,800 and $45,800, respectively. The agreement also includes an earn-out provision of up to an additional $89,000 consisting of cash and stock, should the Company meet certain performance targets in 2010. On November 20, 2009 in connection with the terms of the merger agreement, the $30,000 HSH Bridge Note and $1,000 extension fee were paid in full by MEMC. In addition, the HSH Warrants were fully terminated as a result of the merger. On this date, and in connection with the merger agreement, MEMC also agreed to pay SunEdison approximately $15,000 of retention bonuses, of which $12,400 was paid on November 20, 2009, with the remainder to be paid at the completion of the indemnification period, under the terms of the agreement.

Legal Proceedings

On November 20, 2009, the Company entered into a settlement in the Maryland state court lawsuit discussed above, resulting in a payment made that was previously accrued of $5,000 by the Company. The lawsuit is now dismissed.

 

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