10-K/A 1 sopw_10ka-123112.htm FORM 10-K/A sopw_10ka-123112.htm
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 

 
FORM 10-K/A
Amendment No. 1
 
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
   
 
For the fiscal year ended December 31, 2012
 
OR
 
¨
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 000-50142
 

 
SOLAR POWER, INC.
(Exact name of registrant as specified in its charter)
 
     
California
 
20-4956638
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification Number)
   
2240 Douglas Boulevard, Suite 200
Roseville, California
 
95661-3875
(Address of Principal Executive Offices)
 
(Zip Code)
 
(916) 770-8100
(Issuer’s telephone number)
 
Securities registered pursuant to Section 12(b) of the Act:
None.
 
Securities registered pursuant to Section 12(g) of the Act:
 
COMMON STOCK, PAR VALUE $0.0001
(Title of Class)
 
 
OVER THE COUNTER BULLETIN BOARD
(Name of each exchange on which registered)
 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   ¨     No   x
 
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   ¨     No   x
 
Note: Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Exchange Act from their obligations under those Sections.
 
 
 

 
 
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 issuer 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 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 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 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 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
 
¨
  
Accelerated filer
 
¨
       
Non-accelerated filer
 
¨   (Do not check if a smaller reporting company)
  
Smaller reporting company
 
x
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes   ¨     No   x
 
The aggregate market value of voting stock held by non-affiliates computed by reference to the price at which the common equity was last sold as of the last business day of the registrant’s most recently completed second fiscal quarter, June 30, 2012, was $12,488,721. For purposes of this computation, it has been assumed that the shares beneficially held by directors and officers of registrant were “held by affiliates”; this assumption is not to be deemed to be an admission by such persons that they are affiliates of registrant.
 
The number of shares of registrant’s common stock outstanding as of April 22, 2013 was 198,214,456.
 

DOCUMENTS INCORPORATED BY REFERENCE
 
None.

 
 

 
 
Explanatory Note
 
Solar Power, Inc. (the “Company,” “we,” “us” or “our”) is filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to amend our Annual Report on Form 10-K for the year ended December 31, 2012, as filed with the Securities and Exchange Commission (the “SEC”) on April 19, 2012 (the “Original Filing”), to include the information required by Part III of Form 10-K. This information was previously omitted from the Original Filing in reliance on General Instruction G(3) to Form 10-K, which permits the information in the above referenced items to be incorporated in the Form 10-K by reference from our definitive proxy statement if such statement is filed no later than 120 days after our fiscal year-end. The information required by Items 10-14 of Part III is no longer being incorporated by reference to the proxy statement relating to the Company’s 2013 Annual Meeting of Shareholders.  The reference on the cover of the Original Filing to the incorporation by reference to portions of our definitive proxy statement into Part III of the Original Filing is hereby deleted.  This Amendment No. 1 is not intended to update any other information presented in the Annual Report as originally filed.
 
Form 10-K/A
(Amendment No. 1)
For the Fiscal Year Ended December 31, 2012
 
TABLE OF CONTENTS
 
 
 
PART III
    26  
ITEM 10 DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
    26  
ITEM 11 EXECUTIVE COMPENSATION
    26  
ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
    26  
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
    26  
ITEM 14 PRINCIPAL ACCOUNTING FEES AND SERVICES
    26  
PART IV
    27  
ITEM 15 EXHIBITS, FINANCIAL STATEMENT SCHEDULES
    27  

 
 

 
 
ITEM 10.  DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
 
 
Directors, Executive Officers and Significant Employees
 
The following table sets forth the names and ages of our current board of directors (the “Board”), our named executive officers and  the principal offices and positions held with else by each person. Our executive officers are appointed by our Board. Our directors serve until the earlier occurrence of the appointment of his or her successor at the next meeting of shareholders, death, resignation or removal by the Board. There are no family relationships among our directors and our named executive officers.


Person
 
Age
  
Position
Xiaofeng Peng
 
38
  
Chairman of the Board of Directors
Stephen C. Kircher
 
59
  
Chief Executive Officer and Director
Francis W. Chen
 
64
  
Director
Jack Lai
 
59
  
Director
Dennis Wu
 
71
  
Director
James R. Pekarsky
 
53
 
Chief Financial Officer

 
Biographies

Set forth below is a brief biography of each director and named executive officer that contains information regarding the individual’s service as a director or named executive officer including business experience for the past five years.  In addition, information for directors includes directorships held during the past five years, information concerning certain legal or administrative proceedings, if applicable, and the experiences, qualifications, attributes or skills that caused the Board to determine that the individual should serve as a director for the Company.
 
Xiaofeng Peng
 
Mr. Peng has served as chairman of our Board since January 10, 2011. Mr. Peng was appointed chairman of the Board pursuant to the the Stock Purchase Agreement entered into between the Company and LDK Solar Co., Ltd. (“LDK”) on January 5, 2011. Mr. Peng founded LDK in July 2005 and is its chairman of the board and chief executive officer. Prior to founding LDK, Mr. Peng founded Suzhou Liouxin in March 1997 and was its chief executive officer until February 2006. Suzhou Liouxin is a leading manufacturer of personal protective equipment in Asia. Mr. Peng graduated from Jiangxi Foreign Trade School in 1993 with a diploma in international business and from Beijing University Guanghua School of Management with an executive MBA degree in 2002.
 
Mr. Peng’s experience as founder of LDK and his previous experience in founding and managing manufacturing operations qualify him to be a director of the Company.
 
Steve C. Kircher
 
Mr. Kircher has served as our director since May 2006. Mr. Kircher previously served as the chairman of our Board from September 2006 through January 10, 2011. Mr. Kircher has served as our chief executive officer since May 2006 and president since December 2006. Prior to that, Mr. Kircher served as a consultant to International DisplayWorks, Inc. from December 2004 through April 2006. Mr. Kircher also served as the chairman and chief executive officer of International DisplayWorks, Inc. from July 2001 until December 2004. Mr. Kircher has a Bachelor of Arts degree from the University of California, San Diego. Mr. Kircher was the subject of  National Association of Securities Dealers (“NASD”) (now known as Financial Industry Regulatory Authority or “FINRA”) disciplinary proceedings relating to potential violations of NASD Conduct rules for events occurring in 1999 in connection with Mr. Kircher’s status and duties as a principal of CapBay Financial Services. The NASD complaint alleged improper markups based on CapBay’s contemporaneous cost in connection with the purchase and sale of two stocks, failure of brokers to make required penny stock disclosure in connection with the purchase and sale of one stock, and failure to maintain and enforce supervisory procedures designed to achieve compliance with securities rules and regulations. CapBay Financial Services ceased operations in approximately 2001, and Mr. Kircher also ceased working in the industry to manage operations at International DisplayWorks, Inc., as noted above, at the same time. Mr. Kircher later entered into a letter of acceptance, consent and waiver (“AWC”) with the NASD, pursuant to which Mr. Kircher consented to the imposition of disciplinary sanctions, including his agreement that he would not associate with any NASD member in the future without NASD consent. The letter was accepted by NASD in March 2002, and, along with Mr. Kircher’s payment of an agreed upon fine, constituted the final disposition of this matter.
 
The Board believes that Mr. Kircher’s broad base of management and oversight skills and extensive background experience with respect to establishing manufacturing operations in China and domestically makes him an excellent candidate to serve as director of the Company. As our present chief executive officer, Mr. Kircher has an extensive understanding of our structure, history and goals and serves as our chief strategist for our business model. Mr. Kircher is also one of our significant investors. As such, not only does Mr. Kircher bring to our Board a wealth of management and oversight experience and expertise, his personal interests are also inextricably aligned with our future success.
 
 
 

 
 
Francis W. Chen
 
Mr. Chen has served as our director since November 23, 2009. Mr. Chen is currently a venture partner at WI Harper Group, a venture capital firm with offices in San Francisco, Beijing and Taipei. Prior to this, Mr. Chen was a co-founder of Pacific Advantage International in 2002. He continues to serve as chairman of Pacific Advantage International. Mr. Chen also serves as a member of the boards for SB2 and Stealth Peptides. Mr. Chen has twenty years of prior management experience in the healthcare industry with Becton-Dickinson, Baxter International and a number of biotechnology start-ups. Mr. Chen received a Ph.D. in immunology from Harvard University in 1976, and received a M.S. and a B.S. in chemistry from Tufts University in 1970.
 
Mr. Chen has broad experience and expertise serving on the boards of directors of various Chinese companies. From his positions as a director, Mr. Chen has invaluable knowledge and experience managing operations of public companies, specifically including biotechnology companies. The Board believes that Mr. Chen’s broad experience on various boards is an asset to the Company and complements the experience and knowledge of the other members of the Board.
 
Jack Lai
 
Mr. Lai has served as our director since January 10, 2011. Mr. Lai was appointed director pursuant to the terms of the Stock Purchase Agreement entered into between the Company and LDK on January 5, 2011.  Mr. Lai is currently an executive vice president, chief financial officer and secretary of LDK. He joined LDK in August 2006. Mr. Lai has over 20 years of experience in finance, strategic planning and corporate management. Prior to joining LDK, Mr. Lai served as the chief financial officer and vice president of Silicon Storage Technology, Inc. He was the vice president of finance and administration and the chief financial officer of Aplus Flash Technology, Inc. in San Jose, California from 2000 to 2003. He served as vice president of finance and administration, chief financial officer and general manager of Wirex Corporation, Inc. in Portland, Oregon, from 1998 to 2000. Mr. Lai graduated from Tamkang University with a bachelor’s degree in business administration in 1976, from Chinese Culture University with an MBA degree in 1978 and from San Jose State University with an MBA degree in 1982.
 
Mr. Lai’s broad experience and expertise serving as chief financial officer of LDK as well as his previous experience in the technology sector qualifies him to serve as a director of the Company.
 
Dennis Wu
 
Mr. Wu has served as our director since July 22, 2011 and serves as the chairman of our Audit and Compensation Committees. Mr. Wu is the managing partner and Co-Founder of WuHoover & Co. LLP, a certified public accounting firm focused on serving emerging and mid-sized businesses. Mr. Wu currently serves as the chairman of board and of the Audit Committee and a member of the Compensation and Transaction Committees for Recology. From June 2005 to March 2008, Mr. Wu served as executive vice-president and chief financial officer of UCBH Holdings, Inc. (“UCBH”) and its wholly owned subsidiary United Commercial Bank (“UCB”). He was previously elected as an independent director and chairman of the respective Audit Committee of UCBH (a NASDAQ listed company) and UCB. Mr. Wu has also served as the chairman of the Risk Management Committee of UCBH and UCB. Mr. Wu graduated with a B.S. and M.B.A. from the University of California at Berkeley, Haas School of Business. He retired in 2004 after a 37-year career at Deloitte & Touche, LLP, at the firm’s San Francisco office. Mr. Wu began at Deloitte as an auditor and ultimately held various managing partner positions. Mr. Wu is a California Certified Public Accountant.
 
Mr. Wu’s broad experience and expertise as an independent director and as a member of audit, compensation, investment, risk management, and transaction committees previously, as well as his previous experience in the technology sector qualifies him to serve as a director of the Company.
 
James R. Pekarsky
 
James R. Pekarsky has served as our chief financial officer since November 2011.  Prior to joining the Company, Mr. Pekarsky served as chief financial officer for several NASDAQ listed companies, including Mosys and Virage Logic. In addition, Mr. Pekarsky has extensive operational expertise holding general manager positions with large public companies such as Mentor Graphics and Bio Rad. His diversified background includes international business experience, acquisitions, venture capital and bank fund raising, and initial public offerings. In the years prior to joining the Company, he operated his own consulting practice where he assumed chief financial officer responsibilities for multiple Silicon Valley companies, providing companywide financial oversight and guidance including strategic planning and fund raising activities. Mr. Pekarsky holds a B.S. in Accounting from Indiana University of Pennsylvania in Indiana, Pennsylvania and an M.B.A. in Finance from Golden Gate University in San Francisco, California.
 
Consideration of Director Nominees
 
There have been no material changes to the procedures by which security holders may recommend nominees to our Board of Directors.
 
 
 

 
 
Audit Committee Financial Expert
 
The members of the Audit Committee are Mr. Dennis Wu (Audit Committee Chairman) and Mr. Francis W. Chen.  The Board has determined that each member of the Audit Committee is “independent” as defined by the applicable NASDAQ rules and by the Sarbanes-Oxley Act of 2002 and regulations of the SEC, and that Mr. Wu qualifies as an “audit committee financial expert” as defined in such regulations.
 
Code of Ethics
 
We have adopted a code of ethics that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. The Code of Conduct is available at our website at www.solarpowerinc.net.
 
Section 16 Beneficial Ownership Reporting Compliance
 
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires the Company’s executive officers and directors and persons who own more than 10% of a registered class of the Company’s equity securities, to file with the SEC initial statements of beneficial ownership, reports of changes in ownership and annual reports concerning their ownership, of common stock and other equity securities of the Company on Forms 3, 4, and 5, respectively. Executive officers, directors and greater than 10% shareholders are required by SEC regulations to furnish us with copies of all Section 16(a) reports they file. We believe that all reports required by section 16(a) for transactions in the year ended December 31, 2012 were filed timely.

 
 ITEM 11.  EXECUTIVE COMPENSATION
 
Compensation Table
 
The following table provides information concerning compensation earned by our current named executive officers including the options and restricted stock awards. A column or table has been omitted if there was no compensation awarded to, earned by or paid to any of the named executive officers or directors required to be reported in such table or column in the respective fiscal year.  We do not have any employment agreements, nor do we have severance terms or provisions for executive officers.
 
Summary Compensation Table
 
 
Name and Principal Position
   
Year
   
Salary ($)
   
Bonus ($)
 
Stock
Awards
$
 
Option
Awards
$
 
All Other
Compensation
$
   
Total ($)
                             
Stephen C. Kircher,
 
2012
 
220,000
 
110,000
 
—  
 
—  
 
—  
 
330,000
Chief Executive Officer and Director
 
2011
 
215,000
  
110,000
 
—  
  
465,000
  (1)
—  
 
790,000
(Principle Executive Officer)
                           
James R. Pekarsky
 
2012
 
200,000
  
55,000
 
—  
  
—  
 
—  
 
255,000
Chief Financial Officer
 
2011
 
33,333
 
—  
 
—  
 
         243,000
  (2)
—  
 
276,333
(Principle Executive Officer)
                           
Jeffrey M. Pontius, (3)
 
2012
 
182,500
 
54,166
 
—  
 
—  
 
60,030
   (4)
296,696
Executive Vice President
 
2011
 
169,599
 
29,166
 
—  
 
186,000
  (5)
43,758
   (6)
428,523
                             
Robert A. Wood, (7)
 
2012
 
132,820
  
50,000
 
—  
  
—  
 
—  
 
182,820
Executive Vice President
 
2011
 
191,250
 
50,000
 
—  
 
348,750
  (8)
—  
 
590,000
 
(1)
Reflects options granted to Mr. Kircher to purchase 1,000,000 shares of our common stock at an exercise price of $0.49 and a grant date fair value of $0.465 with four-year vesting terms and which expire in five years. As of December 31, 2012, 250,000 shares underlying these options were vested. The amount reported represents the grant date fair value computed in accordance with Financial Accounting Standards Board (“FASB”) ASC Topic 718.
(2)
Reflects options granted to Mr. Pekarsky to purchase 1,000,000 shares of our common stock at an exercise price of $0.26 and a grant date fair value of $0.243 with four-year vesting terms and which expire in five years. As of December 31, 2012, 250,000 shares underlying  these options were vested. The options were fair-valued using the Black-Scholes valuation model. The amount reported represents the grant date fair value computed in accordance with Financial Accounting Standards Board (“FASB”) ASC Topic 718.
(3)
Mr. Pontius resigned from the Company on April 1, 2013.
(4) Represents relocation bonus paid to Mr. Pontius.
 
 
 

 
 
(5)
Reflects options granted to Mr. Pontius to purchase 400,000 shares of our common stock at an exercise price of $0.49 and a grant date fair value of $0.465 with four-year vesting terms. As of December 31, 2012, 100,000 shares underlying these options were vested. The options were fair-valued using the Black-Scholes valuation model. The amount reported represents the grant date fair value computed in accordance with Financial Accounting Standards Board (“FASB”) ASC Topic 718.
(6)
Reflects relocation expenses and housing allowance paid to Mr. Pontius.
(7)
Mr. Wood resigned from the Company on August 1, 2012.
(8)
Reflects options granted to Mr. Wood to purchase 750,000 shares of our common stock at an exercise price of $0.49 and a grant date fair value of $0.465 with four-year vesting terms. As of December 31, 2012, 187,500 shares underlying these options were vested. The options were fair-valued using the Black-Scholes valuation model. The amount reported represents the grant date fair value computed in accordance with Financial Accounting Standards Board (“FASB”) ASC Topic 718.
 
Outstanding Equity Awards at Fiscal Year End
 
The following table summarizes the options awards granted to each of the named executive officer identified above in the summary compensation table above pursuant to our 2006 Equity Incentive Plan. No stock options were exercised in the last fiscal year.
 
Outstanding Equity Awards at Fiscal Year-End
 
 
     
Option Awards
    Stock Awards
 
Name
   
Number of
securities
underlying
unexercised
options (#)
exercisable
   
Number of
securities
underlying
unexercised
options (#)
unexercisable
   
Option
exercise
price
($)
 
Option
expiration
date
 
Number
of shares
or units
of stock that
have
not
vested (#)
   
Market
value of
shares or
units
that have
not
vested ($)
 
Equity
incentive plan
awards:
number of
unearned
shares, units or
other rights that
have not vested
(#)
   
Equity
incentive plan
awards:
market or payout
value of unearned
shares, units or other rights
that have not
vested ($)
Stephen C. Kircher
Chief Executive Officer
(Principle Executive Officer)
 
 
10,000
7,500
100,000
250,000
 
(1)
(2)
(3)
(4)
 
-
2,500
100,000
750,000
 
$
1.25
0.74
1.24
0.49
 
4/1/2013
3/30/2014
1/4/2015
4/1/2016
 
 
$
 
 
$
                                             
James R. Pekarsky
Chief Financial Officer
(Principle Financial Officer)
 
 
250,000
 
(5)
 
750000
   
0.26
 
11/1/2016
 
 
 
 
   
 
(1)
Reflects an option granted to Mr. Kircher to purchase up to10,000 shares of  our common stock at an exercise price of $1.25. This option expires in five years.  As of December 31, 2012, 100% of these options have vested.
(2)
Reflects an option  granted to Mr. Kircher to purchase up to 10,000 shares of our common stock at an exercise price of $0.74.  This option expires in five years.  As of December 31, 2012, 75% of these options have vested.
(3)
Reflects an option granted to Mr. Kircher to purchase up to 200,000 shares of our common stock at an exercise price of $1.24. This option expires in five years.   As of December 31, 2012, 50% of these options have vested.
(4)
Reflects an option to 1,000,000 granted to Mr. Kircher to purchase up to 1,000,000 our common stock at an exercise price of $0.49.  This option expires in five years.  As of December 31, 2012, 25% of these options have vested.
(5)
Reflects an option granted to Mr. Pekarsky to purchase up to 1,000,000 at an exercise price of $0.26.  This option expires in five years.   As of December 31, 2012, 25% of these options have vested.
 
Long-Term Incentive Plans-Awards in Last Fiscal Year
 
We do not currently have any long-term incentive plans.
 
Compensation of Directors
 
All our non-employee directors earned director compensation in 2012 in the form of quarterly retainers and committee chairman retainers as set forth in the following table:
 
Quarterly retainer
  
$
6,250
  
Annual Audit Committee Chairman
  
$
5,000
  
Annual Audit Committee Vice Chairman
  
$
2,500
  
Compensation Committee Chairman
  
$
3,000
  
Governance & Nominating Committee Chairman
  
$
3,000
  
 
 
 

 
 
In addition, we reimburse our directors for their reasonable expenses incurred in attending meetings of the Board and its committees.
 
Additionally, when they join the Board each of our independent Directors receives 25,000 restricted shares of our common stock that vest 25% annually over four years.
 
Director Compensation
 
The following table sets forth the compensation received by each of the Company’s non-employee Directors.
 
Stephen C. Kircher, the Chief Executive Officer of the Company, received no additional compensation for serving on the Board. His compensation is described in the Summary Compensation Table above.

Name
  
       
  
   
  
 
 
 
  
   
Total ($)
Fees Earned or
       
Non-Equity
Incentive Plan
Non-Qualified
Deferred
All Other
Paid in Cash
($)
Stock Awards
 ($) (1)
Option Awards 
($)
Compensation
 ($)
Compensation 
($)
Compensation 
($)
 
Xiaofeng Peng
  
$
25,000
  
$
26,500
  
$
—  
  
$
—  
  
$
—  
  
$
—  
  
$
51,500
 
Francis W. Chen
  
$
28,000
  
$
26,500
  
$
—  
  
$
—  
  
$
—  
  
$
—  
  
$
54,500
 
Jack Lai
  
$
25,000
  
$
26,500
  
$
—  
  
$
—  
  
$
—  
  
$
—  
  
$
51,500
 
Dennis Wu
  
$
33,000
  
$
26,500
  
$
—  
  
$
—  
  
$
—  
  
$
—  
  
$
59,500
 

(1)
The amounts reported in this column represent the grant date fair value computed in accordance with FASB ASC Topic 718 for 100,000 shares of restricted stock units granted to each of our non-employee directors in 2012 at a grant date fair value of $0.265.
 

ITEM 12.  SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
 
 
Security Ownership of Certain Beneficial Owners and Management
 
The following table sets forth as of April 22, 2013, certain information relating to the ownership of our common stock by (i) each person known by us to be the beneficial owner of more than 5% of the outstanding shares of the class of equity security, (ii) each of our directors, (iii) each of our executive officers, and (iv) all of our executive officers and directors as a group. Except as may be indicated in the footnotes to the table and subject to applicable community property laws, each of such persons has the sole voting and investment power with respect to the shares owned.
 

 
 
Directors and Named Executive Officers(1)
 
Shares Beneficially
Owned
     
Percentage
Beneficially
Owned
 
                   
Xiaofeng Peng, Chairman of the Board of Directors
    200,000         *  
Francis W. Chen, Director
    420,000   (2   *  
Jack Lai, Director
    200,000         *  
Dennis Wu, Director
    220,000   (3   *  
Stephen C. Kircher, Chief Executive Officer and Director
    8,310,000   (4   4.1 %
James R. Pekarsky, Chief Financial Officer
    250,000   (5   *  
All Executive Officers and Directors as a Group
    9,350,000         4.7 %
Other Persons
                 
LDK Solar USA, Inc.
    141,517,570         70.7 %
1290 Oakmead Parkway
                 
Sunnyvale, CA 94085
                 
Total
    150,867,570         75.3 %
 
 
 

 

*
Less than 1%
(1)
Based upon information supplied by officers, directors and principal stockholders.  Beneficial ownership has been determined in accordance with Rule 13d-3 under the Exchange Act. Pursuant to the rules of the SEC, shares of Common Stock which an individual or group has a right to acquire within 60 days pursuant to the exercise of options or warrants are deemed to be outstanding for the purpose of computing the percentage ownership of such individual or group, but are not deemed to be beneficially owned and outstanding for the purpose of computing the percentage ownership of any other person shown in the table.  Except as otherwise indicated, the address of each of the persons in this table is as follows: c/o Solar power, Inc., 2240 Douglas Boulevard, Suite 200, Roseville, California 95661.
(2)
Includes 40,000 shares underlying options, to the extent exercisable within 60 days.
(3)
Includes 20,000 shares underlying options, to the extent exercisable within 60 days.
(4)
Includes 1,540,000 shares issued in the names of trusts established for the benefit of Mr. Kircher’s two sons and 100,000 shares issued to the Kircher Family Foundation, Inc., to each of which Mr. Kircher is the trustee. Also includes 670,000 shares underlying options, to the extent exercisable within 60 days.
(5) Includes 250,000 shares underlying options, to the extent exercisable within 60 days.
 
 
 ITEM 13.  CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Transactions with Related Persons
 
Other than the compensation discussed above, the Company did not engage in any related party transactions in 2012 as required to be disclosed under Item 404 of regulation S-K.
 
LDK Solar Co., Ltd. (“LDK”) owns approximately 71% of the common stock of the Company thereby having a controlling interest in the Company.
 
Director Independence
 
The Board annually determines the independence of each director, based on the independence criteria set forth in the listing standards of the Marketplace Rules of NASDAQ. In making its determinations, the Board considers all relevant facts and circumstances brought to its attention as well as information provided by the directors and a review of any relevant transactions or relationships between each director or any member of his or her family, and the Company, its senior management or the Company’s independent registered public accounting firm. Based on its review, the Board determined that Mr. Wu and Mr. Chen are independent under the NASDAQ criteria for independent board members.

 
ITEM 14.  PRINCIPAL ACCOUNTING FEES AND SERVICES

Relationship with Independent Registered Public Accounting Firm
 
We have appointed Crowe Horwath LLP (“Crowe Horwath”) as our independent registered public accounting firm for our fiscal year ending 2013.
 
Principal Accountant Fees and Services
 
KPMG LLP
 
On November 29, 2012, we dismissed KPMG LLP (“KPMG”) as our independent registered public accounting firm. For further information related to the dismissal of KPMG, please see the Current Report on Form 8-K filed with the SEC on December 5, 2012.
 
Fees billed to us by KPMG during fiscal years 2011 and 2012 were as follows:

   
2012
   
2011
 
Audit Fees
  $ 304,420     $ 525,000  
Audit-related fees
    242,671       91,500  
Tax-related fees
           
All other fees
           
    $ 547,091     $ 616,500  
 
 
 

 

 
 Audit Fees
 
Audit fees consist of fees billed for professional services rendered for the audit of our financial statements and services that are normally provided by the above auditors in connection with statutory and regulatory fillings or engagements.
 
Audit-Related Fees
 
Audit related fees consist of assurance and related services that are reasonably related to the performance of audit or review of our financial statements related to our SEC filings.
 
Tax Fees
 
Tax fees, if any, relate to the preparation of corporate tax returns.
 
All Other Fees
 
Not applicable.
 
Crowe Horwath LLP
 
Immediately following the dismissal of KPMG as our independent registered public accounting firm, we retained Crowe Horwath as our independent registered public accounting firm.
 
Fees billed to us by Crowe Horwath for fiscal years 2011 and 2012, subsequent to their appointment as our independent registered public accounting firm, were as follows.
 
   
December 31, 2012
   
December 31, 2011
 
Audit Fees
  $ 269,160     $ 220,000  
Audit-related fees
    10,000        
Tax-related fees
           
All other fees
           
    $ 279,160     $ 220,000  
 
 Audit Fees
 
Audit fees consist of fees billed for professional services rendered for the audit of our financial statements and services that are normally provided by the above auditors in connection with statutory and regulatory fillings or engagements.
 
Audit-Related Fees
 
Audit related fees consist of assurance and related services that are reasonably related to the performance of audit or review of our financial statements related to our SEC filings.
 
Tax Fees
 
Tax fees, if any, relate to the preparation of corporate tax returns.
 
All Other Fees
 
Not applicable.
 
Pre-Approval Policies
 
The Audit Committee pre-approves all audit and non-audit services to be performed by the independent registered public accounting firm. The Audit Committee pre-approved 100% of the audit and audit-related services performed by the independent registered public accounting firm in fiscal 2012 and 2011. The percentage of hours expended on the principal accountant’s engagement to audit our financial statements for the most recent fiscal year that were attributed to work performed by persons other than the principal accountant’s full-time, permanent employees was 0%.

 
 

 
 
PART IV
 
ITEM 15.  EXHIBITS, FINANCIAL STATEMENT SCHEDULES
 
(a)
We have filed the following documents as part of this report:
   
 
(3)   Exhibits
 
 
EXHIBIT INDEX
 
The following exhibits are included in this Amendment (and are numbered in accordance with Item 601 of Regulations S-K). Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit index immediately precedes the exhibits.

Exhibit Number
Description
   
31.1*
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
   
31.2*
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
   
32*
Certification of Principal Executive Officer and Principal Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
* Filed herewith.

 
 

 
 
SIGNATURES
 
In accordance with 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.
 
     
   
SOLAR POWER, INC.
   
April 30, 2013
 
/s/ Stephen C. Kircher
   
By: Stephen C. Kircher
   
Chief Executive Officer and Chairman of the
   
Board (Principal Executive Officer)
   
April 30, 2013
 
/s/ James R. Pekarsky
   
By: James R. Pekarsky
   
Chief Financial Officer (Principal Financial
   
Officer and Principal Accounting Officer)