indemnification only extends to expenses (including attorneys fees) incurred in connection with defense or settlement of such action, and the statute requires court approval before there
can be any indemnification where the person seeking indemnification has been found liable to the corporation. The Companys Amended and Restated Certificate of Incorporation contains such a provision.
Pursuant to the Amended Certificate of Incorporation of EnFlex, Enflex is authorized, to the fullest extent permitted by Delaware law, to
indemnify its directors, officers, employees and other agents, in excess of the indemnification and advancement otherwise permitted by Section 145 of the Delaware General Corporation Law, subject only to limits created by applicable Delaware
law, with respect to actions for breach of duty to a corporation, its stockholders and others.
Pursuant to the Certificates of
Incorporation of SunEdison Holdings and FRV, SunEdison Holdings and FRV shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law indemnify all persons whom it may indemnify pursuant thereto.
Pursuant to the Certificates of Incorporation of SunEdison International and MEMC Pasadena, the companies shall indemnify any person who was
or is a party or is threatened to be made a party to any action, suit or proceeding (other than an action by or in the right of the company) by reason of the fact that such person is or was a director, officer, employee or agent of the company, to
the full extent authorized or permitted by law.
The Company has entered into indemnification agreements with substantially all of its
executive officers and directors. These agreements require the Company to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the Company, and to advance
expenses incurred as a result of any proceeding against them as to which they could be indemnified. In the case of any proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that the such individuals
were acting in service to the Company, no indemnification shall be made in respect of any proceeding as to which such individuals shall have been adjudged to be liable to the Company unless, and only to the extent that, the competent court
determines that such individual is entitled to indemnity.
The Company has in effect a directors and officers liability insurance policy
providing insurance for the directors and officers of the Company against certain liabilities asserted against them or incurred by them, including liabilities under the Securities Act of 1933 and the Securities Exchange Act of 1934. The Company pays
the entire premium of this policy.
NVT, LLC (NVT), Sun Edison LLC (Sun LLC), SunEdison Canada, LLC (Sun
Canada LLC) and SunEdison International, LLC (Sun International LLC) are each organized as a limited liability company under the laws of the State of Delaware. Section 18-108 of the Delaware Limited Liability Company Act
provides that, subject to specified standards and restrictions, if any, as are set forth in the limited liability company agreement, a limited liability company shall have the power to indemnify and hold harmless any member or manager or other
person from and against any and all claims and demands whatsoever.
Pursuant to the Second Amended and Restated Operating Agreement of
NVT, NVT shall indemnify and hold harmless its Manager from and against any and all claims and demands whatsoever. In all other respects the business and affairs of NVT shall be governed by the provisions of the Delaware Limited Liability Company
Pursuant to the Limited Liability Company Agreement of Sun LLC, Sun LLC shall indemnify, defend and hold harmless its Board of
Managers, its Member(s), officers, employees and agents to the fullest extent permissible under Delaware law.
Pursuant to the Amended and
Restated Operating Agreement of Sun Canada LLC, Sun Canada LLC shall indemnify and hold harmless its Manager from and against any and all claims and demands whatsoever. In all