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Exhibit 10.1
SUNPOWER
CORPORATION
INDEMNIFICATION
AGREEMENT
This Indemnification
Agreement (this “Agreement”) is entered into as of
, 2005 (the “Effective Date”), by and between SUNPOWER
CORPORATION, a Delaware corporation (the “Company”),
and
(“Indemnitee”).
RECITALS
A. Indemnitee is either a
member of the board of directors of the Company (the “Board
of Directors”) or an officer of the Company, or both, and in
such capacity or capacities, or otherwise as an Agent (as
hereinafter defined) of the Company, is performing a valuable
service for the Company.
B. Indemnitee is willing to
serve, continue to serve and to take on additional service for or
on behalf of the Company on the condition that he or she be
indemnified as herein provided.
C. It is intended that
Indemnitee shall be paid promptly by the Company all amounts
necessary to effectuate in full the indemnity provided
herein.
NOW, THEREFORE, in
consideration of the premises and the covenants in this Agreement,
and of Indemnitee continuing to serve the Company as an Agent and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. Services by
Indemnitee . Indemnitee agrees to serve (a) as a director or an
officer of the Company, or both, so long as Indemnitee is duly
appointed or elected and qualified in accordance with the
applicable provisions of the Certificate of Incorporation and
bylaws of the Company, and until such time as Indemnitee resigns or
fails to stand for election or is removed from Indemnitee’s
position, or (b) as an Agent of the Company. Indemnitee may from
time to time also perform other services at the request or for the
convenience of, or otherwise benefiting, the Company. Indemnitee
may at any time and for any reason resign or be removed from such
position (subject to any other contractual obligation or other
obligation imposed by operation of law), in which event the Company
shall have no obligation under this Agreement to continue
Indemnitee in any such position.
2. Indemnification .
Subject to the limitations set forth herein and in Section 7
hereof, the Company hereby agrees to indemnify Indemnitee as
follows:
(a) Except as otherwise
specifically provided herein, the Company shall, with respect to
any Proceeding (as hereinafter defined) associated with
Indemnitee’s being an Agent of the Company, indemnify
Indemnitee to the fullest extent permitted by applicable law and
the Certificate of Incorporation of the Company in effect on the
date hereof or as such law or Certificate of Incorporation may from
time to time be amended (but, in the case of any such amendment,
only to the extent such amendment permits the Company to provide
broader indemnification rights than the law or Certificate of
Incorporation permitted the Company to provide before such
amendment).
(b) The Company shall
indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or
completed Proceeding (other than an action by or in the right of
the Company) by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any
subsidiary of the Company, or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against Expenses (as
hereinafter defined) or Liabilities (as hereinafter defined),
actually and reasonably incurred by Indemnitee in connection with
such Proceeding if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe
Indemnitee’s conduct was unlawful.
SUNPOWER
CORPORATION
INDEMNIFICATION
AGREEMENT
1
(c) The Company shall
indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or
completed Proceeding by or in the right of the Company or any
subsidiary of the Company to procure a judgment in its favor by
reason of the fact that Indemnitee is or was a director, officer,
employee or agent of the Company, or any subsidiary of the Company,
or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against Expenses and, to the fullest extent permitted
by law, Liabilities if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, except that no indemnification
shall be made in respect of any claim, issue or matter as to which
Indemnitee shall have been adjudged to be liable to the Company
unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery of the State of
Delaware or such other court shall deem proper.
(d) The right to
indemnification conferred herein and in the Certificate of
Incorporation shall be presumed to have been relied upon by
Indemnitee in serving or continuing to serve the Company as an
Agent and shall be enforceable as a contract right.
3. Advancement of
Expenses . All reasonable Expenses incurred by or on behalf of
Indemnitee (including costs of enforcement of this Agreement) shall
be advanced from time to time by the Company to Indemnitee within
twenty (20) days after the receipt by the Company of a written
request for an advance of Expenses, whether prior to or after final
disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination (as hereinafter defined) that
Indemnitee is not entitled to be indemnified for such Expenses),
including, without limitation, any Proceeding brought by or in the
right of the Company. The written request for an advancement of any
and all Expenses under this paragraph shall contain reasonable
detail of the Expenses incurred by Indemnitee. In the event that
such written request shall be accompanied by an affidavit of
counsel to Indemnitee to the effect that such counsel has reviewed
such Expenses and that such Expenses are reasonable in such
counsel’s view, then such expenses shall be deemed reasonable
in the absence of clear and convincing evidence to the contrary. By
execution of this Agreement, Indemnitee shall be deemed to have
made whatever undertaking as may be required by law at the time of
any advancement of Expenses with respect to repayment to the
Company of such Expenses. In the event that the Company shall
breach its obligation to advance Expenses under this Section 3, the
parties hereto agree that Indemnitee’s remedies available at
law would not be adequate and that Indemnitee would be entitled to
specific performance.
4. Surety Bond
.
(a) In order to secure the
obligations of the Company to indemnify and advance Expenses to
Indemnitee pursuant to this Agreement, the Company shall obtain at
the time of any Change in Control (as hereinafter defined) a surety
bond (the “Bond”). The Bond shall be in an appropriate
amount not less than one million dollars ($1,000,000), shall be
issued by a commercial insurance company or other financial
institution headquartered in the United States having assets in
excess of $10 billion and capital according to its most recent
published reports equal to or greater than the then applicable
minimum capital standards promulgated by such entity’s
primary federal regulator and shall contain terms and conditions
reasonably acceptable to Indemnitee. The Bond shall provide that
Indemnitee may from time to time file a claim for payment under the
Bond, upon written certification by Indemnitee to the issuer of the
Bond that (i) Indemnitee has made written request upon the Company
for an amount not less than the amount Indemnitee is drawing under
the Bond and that the Company has failed or refused to provide
Indemnitee with such amount in full within thirty (30) days after
receipt of the request, and (ii) Indemnitee believes that he or she
is entitled under the terms of this Agreement to the amount that
Indemnitee is drawing upon under the Bond. The issuance of the Bond
shall not in any way diminish the Company’s obligation to
indemnify Indemnitee against Expenses and Liabilities to the full
extent required by this Agreement.
(b) Once the Company has
obtained the Bond, the Company shall maintain and renew the Bond or
a substitute Bond meeting the criteria of Section 4(a) during the
term of this Agreement so that the Bond shall have an
initial
SUNPOWER
CORPORATION
INDEMNIFICATION
AGREEMENT
2
term of five (5) years, be renewed for
successive five-year terms, and always have at least one (1) year
of its term remaining.
5. Presumptions and Effect
of Certain Proceedings . Upon making a request for
indemnification, Indemnitee shall be presumed to be entitled to
indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption in reaching any
contrary determination. The termination of any Proceeding by
judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent shall not affect
this presumption or, except as determined by a judgment or other
final adjudication adverse to Indemnitee, establish a presumption
with regard to any factual matter relevant to determining
Indemnitee’s rights to indemnification hereunder. If the
person or persons so empowered to make a determination pursuant to
Section 6 hereof shall have failed to make the requested
determination within thirty (30) days after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of
a plea of nolo contendere or its equivalent, or other disposition
or partial disposition of any Proceeding or any other event that
could enable the Company to determine Indemnitee’s
entitlement to indemnification, the requisite determination that
Indemnitee is entitled to indemnification shall be deemed to have
been made.
6. Procedure for
Determination of Entitlement to Indemnification .
(a) Whenever Indemnitee
believes that Indemnitee is entitled to indemnification pursuant to
this Agreement, Indemnitee shall submit a written request for
indemnification to the Company. Any request for indemnification
shall include sufficient documentation or information reasonably
available to Indemnitee for the determination of entitlement to
indemnification. In any event, Indemnitee shall submit
Indemnitee’s claim for indemnification within a reasonable
time, not to exceed five (5) years after any judgment, order,
settlement, dismissal, arbitration award, conviction, acceptance of
a plea of nolo contendere or its equivalent, or final
determination, whichever is the later date for which Indemnitee
requests indemnification. The Secretary or other appropriate
officer shall, promptly upon receipt of Indemnitee’s request
for indemnification, advise the Board of Directors in writing that
Indemnitee has made such request. Determination of
Indemnitee’s entitlement to indemnification and, if so
entitled, full payment of Indemnitee’s claim for
indemnification shall be made not later than thirty (30) days after
the Company’s receipt of Indemnitee’s written request
for such indemnification, provided that any request for
indemnification for Liabilities, other than amounts paid in
settlement, shall have been made after a determination thereof in a
Proceeding.
(b) The Company shall be
entitled to select the forum in which Indemnitee’s
entitlement to indemnification will be heard; provided, however,
that if there is a Change in Control of the Company, Independent
Legal Counsel (as hereinafter defined) shall determine whether
Indemnitee is entitled to indemnification. The forum shall be any
one of the following:
(i) a majority vote of
Disinterested Directors (as hereinafter defined), even though less
than a quorum;
(ii) by a committee of
Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum;
(iii) Independent Legal
Counsel, whose determination shall be made in a written opinion;
or
(iv) the stockholders of the
Company.
7. Specific Limitations on
Indemnification . Notwithstanding anything in this Agreement to
the contrary, the Company shall not be obligated under this
Agreement to make any payment to Indemnitee with respect to any
Proceeding:
(a) To the extent that
payment is actually made to Indemnitee under any insurance policy,
or is made to Indemnitee by the Company or an affiliate otherwise
than pursuant to this Agreement. Notwithstanding the availability
of such insurance, Indemnitee also may claim indemnification from
the Company pursuant to this Agreement by assigning to the Company
any claims under such insurance to the extent Indemnitee is paid by
the Company;
SUNPOWER
CORPORATION
INDEMNIFICATION
AGREEMENT
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(b) Provided there has been
no Change in Control, for Liabilities in connection with
Proceedings settled without the Company’s consent, which
consent, however, shall not be unreasonably withheld;
(c) For an accounting of
profits made from the purchase or sale by Indemnitee of securities
of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or similar provisions of any state statutory or common
law;
(d) To the extent it would be
otherwise prohibited by law, if so established by a judgment or
other final adjudication adverse to Indemnitee; or
(e) In connection with a
Proceeding commenced by Indemnitee (other than a Proceeding
commenced by Indemnitee to enforce Indemnitee’s rights under
this Agreement) unless the commencement of such Proceeding was
authorized by the Board of Directors.
8. Fees and Expenses of
Independent Legal Counsel . The Company agrees to pay the
reasonable fees and expenses of Independent Legal Counsel should
such Independent Legal Counsel be retained to make a determination
of Indemnitee’s entitlement to indemnification pursuant to
Section 6(b) of this Agreement, and to fully indemnify such
Independent Legal Counsel against any and all expenses and losses
incurred by it arising out of or relating to this Agreement or its
engagemen
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