0001341004-20-000364.txt : 20200921 0001341004-20-000364.hdr.sgml : 20200921 20200921172828 ACCESSION NUMBER: 0001341004-20-000364 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20200921 DATE AS OF CHANGE: 20200921 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST SOLAR, INC. CENTRAL INDEX KEY: 0001274494 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 204623678 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-82789 FILM NUMBER: 201187266 BUSINESS ADDRESS: STREET 1: 350 WEST WASHINGTON STREET STREET 2: SUITE 600 CITY: TEMPE STATE: AZ ZIP: 85281 BUSINESS PHONE: (602) 414-9300 MAIL ADDRESS: STREET 1: 350 WEST WASHINGTON STREET STREET 2: SUITE 600 CITY: TEMPE STATE: AZ ZIP: 85281 FORMER COMPANY: FORMER CONFORMED NAME: FIRST SOLAR HOLDINGS LLC DATE OF NAME CHANGE: 20031229 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Walton Lukas T CENTRAL INDEX KEY: 0001686913 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O CRAVATH, SWAINE & MOORE LLP STREET 2: 825 EIGHTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 sc13da1.htm SCHEDULE 13D, AMENDMENT NO. 1


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Amendment No. 1)

Under the Securities Exchange Act of 1934

First Solar, Inc.
(Name of Issuer)
 
Common stock
(Title of Class of Securities)

336433107
(CUSIP Number)

Lukas T. Walton
In care of:
Shilpi Gupta, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
155 N. Wacker Drive
Chicago, Illinois 60606
(312) 407-0700

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

September 16, 2020
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐


CUSIP No. 336433107

 1
NAMES OF REPORTING PERSONS
 
 
Lukas T. Walton
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
 
 
 (a)  ☐  (b) ☐
 
 
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
Not applicable
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
 
☐
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
United States
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
13,841,358
 
 
 
 
8
SHARED VOTING POWER
 
 
0
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
13,841,358
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
0
 
 
 
 
11
 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
13,841,358
 
 
 
 
12
 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
 
☐
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
13.1%
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
IN
 
 
 
 


2
This filing constitutes Amendment No. 1 (this “Amendment”) to the Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on October 26, 2016 (the “Original Schedule 13D,” and as amended and supplemented by this Amendment, the “Schedule 13D”) by Lukas T. Walton in respect of shares of the common stock (“Shares”) of First Solar, Inc.

Unless set forth below, all previous Items of the Original Schedule 13D are unchanged. Capitalized terms used in this Amendment and not otherwise defined shall have the same meanings ascribed to them in the Original Schedule 13D.

Item 4. Purpose of Transaction.

Item 4 of the Schedule 13D is hereby supplemented by the addition of the following text:

Consistent with his prior disclosure, the Reporting Person has continued to evaluate his investment in the Issuer and has determined to decrease his personal investment in the Issuer in order to fund impact investments across a variety of social and environmental causes. With the cooperation of the Issuer, the Reporting Person sold 8,649,074 Shares in a sale registered pursuant to the Securities Act of 1933 (the “Registered Sale”). Upon the satisfaction of the conditions set forth in the underwriting agreement entered into in connection with the Registered Sale (as described in Item 6 of this Amendment), the Reporting Person sold such shares at a net price of $68.50 per Share on September 21, 2020.

The Reporting Person has further determined to contribute up to 8,649,074 Shares to charitable organizations, including to The Builders Initiative Inc. (“TBI”), a charitable private foundation controlled by the Reporting Person and exempt under Section 501(c)(3) of the Internal Revenue Code of 1986. The timing of such contributions is subject to the Reporting Person’s agreement, pursuant to the lock-up agreement described in Item 6 to this Amendment, to refrain from making such contributions within sixty days of the Registered Sale, and to such other considerations as the Reporting Person deems appropriate. Because the Reporting Person controls the voting and investment decisions of TBI, his contribution of Shares to TBI will not decrease his beneficial ownership of Shares. However, consistent with the charitable purpose of TBI, following his contribution of Shares to TBI the Reporting Person anticipates diversifying TBI’s holdings by selling Shares held by TBI at such times as the Reporting Person believes appropriate, upon consideration of the advice of TBI’s investment committee.

The Reporting Person has no further plans or proposals that would relate to or result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D at this time, but continues to reserve the right to undertake the continuous reevaluation of his investment in the Issuer.

Item 5. Interest in Securities of the Issuer.

Item 5 of the Schedule 13D is hereby amended and restated to read as follows:

Upon the closing of the Registered Sale, the Reporting Person is the beneficial owner of and has sole voting and dispositive power with respect to 13,841,358 Shares. Based on 105,967,668 outstanding Shares as of September 14, 2020, as reported by the Issuer in the Preliminary Prospectus Supplement filed with the SEC pursuant to Rule 424(b)(5)on September 16, 2020, the Shares beneficially owned by the Reporting Person represent approximately 13.1% of the Issuer’s outstanding Shares.

The disclosure regarding the Registered Sale set forth in Item 4 of this Amendment is hereby incorporated herein by reference.
 
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby supplemented by the addition of the following text:

In connection with the Registered Sale, on September 16, 2020, the Reporting Person entered into customary forms of an underwriting agreement and lock-up agreement. As a successor to the Estate of John T. Walton, the Reporting Person is subject to a Registration Rights Agreement between the Issuer and the other signatories thereto, as affirmed by the Acknowledgment and Reaffirmation Agreement entered into by the Reporting Person and the other signatories thereto on September 15, 2020.

Item 7. Materials to Be Filed as Exhibits.

Item 7 of the Schedule 13D is hereby amended and restated to read as follows:

Exhibit A
  
Underwriting Agreement entered into September 16, 2020 in the form (the “Form of Underwriting Agreement”) set forth in Exhibit 1.1 to the Current Report on Form 8-K filed by the Issuer with the SEC on September 21, 2020, incorporated by reference thereto

3

Exhibit B
  
Lock-Up Agreement entered into September 16, 2020 in the form set forth as Exhibit A to the Form of Underwriting Agreement, incorporated by reference thereto
     
Exhibit C
  
Acknowledgment and Reaffirmation Agreement entered into September 15, 2020, filed herewith
     
Exhibit D
  
Registration Rights Agreement in the Form set forth as Exhibit 4.17 to Amendment No. 5 to Form S-1 filed by the Issuer with the SEC on November 2, 2006, incorporated by reference thereto



4

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.


September 21, 2020
 
 
By:    
 /s/ Lukas T. Walton
 
 
 
Name:  Lukas T. Walton
 




5
 EX-99 2 exc.htm EXHIBIT C - ACKNOWLEDGMENT AND REAFFIRMATION AGREEMENT

Exhibit C


ACKNOWLEDGMENT AND REAFFIRMATION AGREEMENT
This Acknowledgement and Reaffirmation Agreement (this “Agreement”) relating to the Registration Rights Agreement (as defined below) and the Joinder (as defined below), is made as of September 15, 2020, between First Solar, Inc., a Delaware corporation (the “Company”), John T. Walton Family Trust UAD 9/19/02 (the “Family Trust”), JTW Trust #1 UAD 9/19/02 (the “JTW Trust”), Lukas T. Walton (“LTW”) and Michael J. Ahearn (“MJA” and, together with the Family Trust, JTW Trust, and LTW, the “Current Stockholders”).
WHEREAS, the Company is party to a registration rights agreement (the “Registration Rights Agreement”), by and among the Company, JWMA Partners, LLC, the Estate of John T. Walton (the “Estate”), JCL Holdings, LLC (“JCL”), and MJA, the form of which was filed as Exhibit 4.17 to the Company’s Amendment No. 5 to Form S-1, dated November 2, 2006 (the “RRA Form”).
WHEREAS, upon acquiring Registrable Securities, LTW and the Family Trust entered into that certain Joinder to the Registration Rights Agreement with the Company, dated October 26, 2016, pursuant to which LTW and the Family Trust agreed to be bound by the terms of the Registration Rights Agreement.
WHEREAS, JTW Trust has advised the Company that, upon the distribution and dissolution of the Estate, the JTW Trust received Registrable Securities and is a current Holder.
WHEREAS, for good and valuable consideration the receipt of which is hereby acknowledged the Company and the Current Stockholders desire to enter into this Agreement in order to acknowledge and reaffirm their rights and obligations under the Registration Rights Agreement and the Joinder.
ACCORDINGLY, the parties hereto agree as follows:
1.
Certain Definitions.
As used in this Agreement, capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Registration Rights Agreement.
2.
Acknowledgment and Reaffirmation.
Each of the Company and the Current Stockholders (i) acknowledges the execution, delivery and binding effect of the Registration Rights Agreement in the form of the RRA Form and (ii) reaffirms their respective rights and obligations set forth therein.
3.
General.
(a)          This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, personal representatives and permitted assigns, whether so expressed or not.

(b)          THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF).
(c)          With respect to any suit, action or proceeding (“Proceeding”) arising out of or relating to this Agreement each of the parties hereto hereby irrevocably (i) submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, the United States District Court for the District of Delaware, or any state court located in the State of Delaware, County of Newcastle (the “Selected Courts”) and waives any objection to venue being laid in the Selected Courts whether based on the grounds of forum non conveniens or otherwise and hereby agrees not to commence any such Proceeding other than before one of the Selected Courts; provided, however, that a party may commence any Proceeding in a court other than a Selected Court solely for the purpose of enforcing an order or judgment issued by one of the Selected Courts and (ii) consents to service of process in any Proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, or by recognized international express carrier or delivery service, to the Company or the Current Stockholders at their respective addresses set forth on Annex A hereto; provided, however, that nothing herein shall affect the right of any party hereto to serve process in any other manner permitted by law.
(d)          WITH RESPECT TO ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
(e)          The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. All section references are to this Agreement unless otherwise expressly provided.
(f)          This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.
(g)          Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions
of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction.


IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date first above written.

 
FIRST SOLAR, INC.
       
 
By:
/s/ Alexander R. Bradley
  
   
Name: Alexander R. Bradley
  
   
Title: Chief Financial Officer
  
       
       
 
JOHN T. WALTON FAMILY TRUST
UAD 9/19/02
       
 
By:
/s/ Alice L. Walton
  
   
Name: Alice L. Walton
  
   
Title: Trustee
  
       
       
 
JTW TRUST #1 UAD 9/19/02
       
 
By:
/s/ Sean Evans
  
   
Name: Sean Evans
  
   
Title: Authorized Signer
  
       
       
 
LUKAS T. WALTON
  
       
 
/s/ Lukas T. Walton
  
       
       
 
MICHAEL J. AHEARN
  
       
 
/s/ Michael J. Ahearn
  
       



[Signature Page to Acknowledgement and Reaffirmation Agreement]