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Adopted May 4, 2006; Revised November 3, 2009;
February 16, 2010; November 10, 2010; November 15, 2011; November 28, 2012
These principles have been adopted by the Board of Directors (the "Board") of SunPower Corporation (the "Company") for the purpose of establishing the corporate governance policies pursuant to which the Board intends to conduct its oversight of the business of the Company in accordance with its fiduciary responsibilities.
The primary role of the Board at the Company is to oversee management by monitoring the performance of the chief executive officer (the "CEO") and other senior management and to ensure that the best interests of shareholders are being served. To satisfy this responsibility, the Directors are expected to take a proactive approach to their duties and function as active monitors of corporate management. The Directors provide oversight in the formulation of the long-term strategic, financial and organizational goals of the Company and of the plans designed to achieve those goals. In addition, the Board oversees and reviews the standards and policies designed and implemented by senior management to ensure that the employees and other constituents of the Company are committed to achieving corporate objectives through the highest standards of responsible conduct and ethical behavior and full compliance with legal requirements.
The day-to-day business of the Company is carried out by its employees, managers and officers, under the direction of the CEO and the oversight of the Board, to enhance the long-term value of the company for the benefit of shareholders. The Board and management also recognize that creating long-term enterprise value is advanced by considering the interests and concerns of other stakeholders, including the Company's employees, customers, creditors and suppliers as well as the community generally.
The Board understands that effective Directors act on an informed basis after thorough inquiry and careful review, appropriate in scope to the magnitude of the matter being considered. The Directors know their position requires them to ask probing questions of management and outside advisors. The Directors also rely on the advice, reports and opinions of management, counsel and expert advisers. In doing so, the Board evaluates the qualifications of those it relies upon for information and advice and also looks to the processes used by managers and advisors in reaching their recommendations. In addition, the Board has the authority to hire outside advisors at the Company's expense if it believes doing so is appropriate.
The Board shall fill the Chairman and CEO positions based upon the Board's view of what is in the best interests of the Company at any point in time. Currently, the Board does not require separation of the Chairman and CEO positions or allocation of the Chairman position to a non-employee Director.
In order to facilitate communication between management and the independent Directors, the Board should elect a “Lead Independent Director.” The principal responsibilities of the Lead Independent Director are to consult with the CEO and Chairman regarding the agenda for meetings of the Board, facilitate meetings of independent Directors, communicate with the Chairman, act as principal liaison between the independent Directors and the Chairman on sensitive issues and raise issues with management on behalf of the independent Directors when appropriate. All members of the Board are encouraged to communicate with the Chairman. The Lead Independent Director’s responsibilities shall include: (1) presiding at all meetings of the Board at which the Chairman is not present, including executive sessions of the independent directors; (2) serving as liaison between the Chairman and the independent directors; (3) approving meeting schedules to assure that there is sufficient time for discussion of all agenda items; (4) having authority to call meetings of the independent directors; and (5) if requested by major shareholders, ensuring that he or she is available for consultation and direct communication.
The Board has four standing committees: the Audit Committee, the Compensation Committee, the Finance Committee and the Nominating and Corporate Governance Committee. The roles of the committees are described in their respective charters. The Board will continue to delegate substantial responsibilities to each committee. The Audit Committee should consist solely of “independent” Directors, as defined by The Nasdaq Stock Market, Inc. Marketplace Rules (the “Nasdaq Rules”), and during any period in which the Company does not qualify for the “Controlled Company” exemptions provided in Rule 5615(c) of the Nasdaq Rules, each other committee should consist solely of “independent directors” as defined under the Nasdaq Rules unless otherwise permitted by applicable law and the Nasdaq Rules. The members of these committees shall also meet the other membership criteria specified in the respective charters for these committees. New committees may be formed as determined by the Board.
Committees should be appointed (or re-appointed), and chairs of each committee designated, by the full Board, annually upon recommendation by the Nominating and Corporate Governance Committee. Composition of the committees of the Board should be reviewed each year to make certain that these committees are operating effectively and have appropriate representation. However, the Board believes that continuity of experience in the specific functions of these committees provides a significant benefit to the stockholders and to management. Generally, each committee member should be considered for rotation when he or she attains five consecutive years on a particular committee, and each committee chair should be considered for rotation every five years. In making the decision for rotation of committee membership and chair position, the Board will take into consideration the expertise of the individual committee member and the expertise of the other Directors available for these positions.
Each committee chair, in consultation with committee members, will determine the frequency and length of committee meetings, considering all relevant factors such as the committee's mandate, nature of current committee business to be discussed and the like. Moreover, the committee chair should feel free to call additional committee meetings at times other than the scheduled meetings of the full Board.
Each of the four standing committee shall have its own charter, which will set forth the principles, policies, objectives and responsibilities of the committee. Annually, each committee should review the existing committee charter and determine whether any amendments are required. Committee charters should be within the scope of authority granted by the Board and should be approved by the Board. Other committees may have charters, at the Board’s discretion. The chair of each committee, in consultation with appropriate members of management and staff, should develop the overall annual agenda to the extent it can be foreseen. In addition, each committee chair should prepare an agenda prior to each committee meeting and should consult with appropriate members of management for additional items which should be included in the agenda. Each committee of the Board is authorized to engage its own outside advisors at the Company’s expense, including legal counsel or other consultants, as required, provided that the committee shall promptly advise the full Board of such engagement.
The Nominating and Corporate Governance Committee shall review the Company's Code of Business Conduct and Ethics and recommend changes and amendments to the full Board for approval.
The Audit Committee shall consider questions of actual and potential conflicts of interest (including corporate opportunities) of Board members and corporate officers, and approve or prohibit any involvement of such persons in such matters. Directors may be asked from time to time to leave a meeting or recuse themselves from voting when considering a transaction in which the Director (or another organization in which the Director is a director or officer) has a financial or other interest. The Audit Committee shall also (i) review and approve in advance all proposed related party transactions (as defined in Item 404 of Regulation S-K), in compliance with Nasdaq Rules; (ii) review, approve and monitor compliance with the Company's Code of Business Conduct and Ethics, applicable to the Company's directors, officers and employees, including its senior financial officers; and (iii) review and approve the Company's procedures for handling complaints regarding accounting or auditing matters. Any waiver of the Code of Business Conduct and Ethics for directors and executive officers may be made only by the disinterested members of the Audit Committee.
The Board shall have no fewer than four regularly scheduled meetings each year at which it reviews and discusses management reports on the performance of the company, its plans and prospects, as well as more immediate issues facing the company. The Chairman of the Board (in consultation with the CEO, if not the same person) and the Lead Independent Director will set the agenda for each Board meeting. Each Board member is free to suggest inclusion of items on the agenda. The Company's general counsel should be available to attend each Board meeting. The Board will review the Company's long-term strategic plans during at least one Board meeting per year and provide oversight to management in formulating corporate strategy.
To the extent possible, information and data which is important to the Board's understanding of matters to be discussed at the meeting and the current status of the Company's business should be distributed electronically and/or in writing to the Board a sufficient number of days before the meeting to enable the Directors to read and prepare for the meeting.
Directors are expected to prepare for, attend and actively participate in all Board and applicable Committee meetings. As a general rule, preparation material on specific subjects should be sent to the Board members in advance so that the Board meeting time may be conserved and discussion time focused on questions that the Board has about the material. The Company encourages, but does not require, Directors to attend the annual meeting of stockholders.
It is anticipated that certain members of management (e.g., the General Counsel and such other members of the executive staff as the CEO may from time to time designate) will attend Board meetings on a regular basis. Other members of management and staff will attend meetings and present reports from time to time. Specifically, the Board encourages management to schedule managers to be present at Board meetings who can provide additional insight into the items being discussed because of personal involvement in these areas. It is understood that Company personnel and others attending Board meetings may be asked to leave the meeting in order for the Board to meet in executive session.
It is the policy of the Board to have separate meeting times for independent Directors without management. Such meetings should be held as a part of the four regularly scheduled board meetings and at such other times as requested by an independent Director. In addition, the Audit Committee of the Board should meet with the Company's outside auditors and the Company's Internal Auditor, without management present, at such times as it deems appropriate, but not less than quarterly.
Board members should have full access to members of management, either as a group or individually, and to Company information that they believe is necessary to fulfill their obligations as Board members. The Directors should use their judgment to ensure that any such contact or communication is not disruptive to the business operations of the Company.
The Compensation Committee should conduct an annual review of Director compensation. This review will include input from the Company's Human Resources department in order to evaluate Director compensation compared to other companies of like size in the industry. Any change in Board compensation should be approved by the full Board.
The current size of the Board is established by resolution adopted by the Board in accordance with the Company's By-laws. The size of the Board is reviewed from time to time by the Board and may vary based upon the size and complexity of the business and the availability of qualified candidates. Board size should facilitate active interaction and participation by all Board members.
The Board believes that as a matter of policy that the Board should include a significant number of independent Directors, unless otherwise required by applicable law or the Nasdaq Rules. Within that policy, the mix of Board members should provide a range of expertise and perspective in areas relevant to the Company's business as well as its size, complexity and competitive environment. Only independent Directors may serve as members of the Audit Committee, A majority of the directors serving on the Compensation Committee and the Nominating and Corporate Governance Committee shall be independent directors, unless otherwise required by applicable law and the Nasdaq Rules.
A Director shall be considered "independent" for purposes of serving on the Board if he or she meets the criteria for independence established by The Nasdaq Rules. A Director shall be considered "independent" for purposes of serving on a Board committee based on the definition of independence used in that committee's charter, which shall conform to any requirements established for such a committee by the Nasdaq Rules and any applicable SEC Rules.
The Nominating and Corporate Governance Committee should review on an annual basis, in the context of recommending a slate of Directors for stockholder approval, the composition of the Board, including issues of character, judgment, diversity, expertise, corporate experience, length of service, independence, other commitments and the like. Furthermore, during the evaluation process, the Nominating and Corporate Governance Committee and the Board shall take the following into account:
Selection of new Directors requires recommendation of a candidate by the Nominating and Corporate Governance Committee to the full Board, which has responsibility for naming new members in the event of a vacancy or expansion of the Board between annual meetings of stockholders. The Nominating and Corporate Governance Committee will consider candidates for the Board recommended by stockholders, which may be submitted to the Company in the manner set forth in the Company's By-laws, policies and procedures. The Nominating and Corporate Governance Committee will also evaluate whether an incumbent director should be nominated for re-election to the Board upon expiration of such director's term, based upon factors established for new director candidates as well as the incumbent director's qualifications, performance as a Board member, and such other factors as the Committee deems appropriate.
Any proposal to decrease the size of the Board, or to substitute a new Director for an existing Director, should be made first by the Nominating and Corporate Governance Committee, then approved by the full Board. After receipt of a recommendation from the Nominating and Corporate Governance Committee, the Chairman should notify the affected Director(s) of such recommendation prior to the meeting of the Board at which the slate of nominees is proposed to be approved.
The Nominating and Corporate Governance Committee should annually review the Board's performance during the prior year. This assessment should focus on areas in which the Board or management believes contributions can be made going forward to increase the effectiveness of the Board. As part of this process Directors will conduct an evaluation to review the progress and effectiveness of the Board and will submit comments to the Nominating and Corporate Governance Committee. The Nominating and Corporate Governance Committee will then report back to the Board, and the full Board will consider and discuss the committee's report.
The Board believes that Directors should not have unlimited tenure. Except for filling vacancies created by an increase in the size of the Board or early resignation or removal of a Director, all Directors shall be subject to election at the annual meeting of stockholders upon the expiration of their respective terms.
Each Director, whose primary employment status changes materially from when the Director was elected to the Board, is expected to notify the Board. The Board does not believe that a Director in this situation should necessarily leave the Board, but that the Director's continued service should be re-evaluated under the established board membership criteria. Accordingly, upon such event, the Nominating and Corporate Governance Committee will review the appropriateness of the Director's continued service on the Board and recommend to the Board whether the Director's continued service is appropriate under the new circumstances.
The Board has established a Director Orientation Process for new Directors to assist them in understanding the Company's business, as well as to serve as an introduction to the Company's senior management team. In addition, meetings of the Board shall be designed to provide appropriate background for new Directors. Further, the Company encourages Directors to participate in continuing education programs focused on the Company's business and industry, as well as legal and ethical responsibilities of board members. Subject to any terms or conditions approved by the Nominating and Corporate Governance Committee, the Company shall reimburse Directors, for the reasonable costs of such ongoing training.
The formal evaluation of the CEO and the other executive officers should be made in the context of the annual performance and compensation review by the Compensation Committee, with appropriate input from the CEO regarding the other executive officers. The evaluation should be based on objective criteria, including performance of the business and accomplishment of long-term strategic objectives in accordance with the principles established in the Compensation Committee charter. The results of the evaluation should be communicated to the CEO by the Independent Lead Director.
The Compensation Committee, in consultation with the full Board, is primarily responsible for CEO succession planning. In addition, it shall monitor management's succession plans for other key executive officers. The Board believes that establishment of a strong management team is the best way to prepare for an unanticipated executive departure.
In addition to its responsibilities related to executive succession planning, the Compensation Committee shall confer with the CEO to encourage management's employee development programs.
The Board believes that management speaks for the Company. Individual Board members may, from time to time, meet or otherwise communicate with various constituencies that are involved with the Company, but it is expected that Board members would do this with knowledge of management and, in most instances, only at the request of management.
In cases where shareholders wish to communicate directly with the Board, messages can be sent to SunPower Corporation, Attention: Corporate Secretary, 77 Rio Robles, San Jose, California 95134. The Corporate Secretary receives all messages sent to this address and forwards communications to the appropriate Director(s).
The Company's Directors should not accept any gift of value that indicates an intent to influence improperly the normal business relationship between the Company and any supplier, customer or competitor.
The Nominating and Corporate Governance Committee should review these corporate governance principles no less frequently than annually.