ex10-28.htm


                                             Exhibit
10.28

     

    


    


    AMENDED
AND RESTATED

    EMPLOYMENT
AGREEMENT

    


    


    This Agreement is made as of December
1, 2008, (this “Agreement”) by and between First Solar, Inc., a Delaware
corporation having its principal office at 350 West Washington Street, Suite
600, Tempe Arizona 85281 (hereinafter “Employer”) and David Eaglesham (hereinafter
“Employee”).

    


    WITNESSETH:

    


    WHEREAS, Employer and Employee wish to
amend and restate the Employment Agreement dated December 20, 2006 between
Employee and Employer (the “Prior Agreement”) and enter into this agreement
relating to the employment of Employee by Employer.

    


    NOW, THEREFORE, in consideration of the
foregoing premises, and the mutual covenants, terms and conditions set forth
herein, and intending to be legally bound hereby, Employer and Employee hereby
agree as follows:

    


    ARTICLE
I.  Employment

    


    1.1                      At-Will Nature of
Employment.  Employer hereby employs Employee as a full-time,
at-will employee, and Employee hereby accepts employment with Employer as a
full-time, at-will employee.  Employer or Employee may terminate this
Agreement at any time and for any reason, with or without cause and with or
without notice, subject to the provisions of this Agreement.

    


    1.2                      Position and Duties of
Employee.  Employer hereby employs Employee in the initial
capacity of Vice President,
Technology and Employee hereby accepts such position.  In this
position, Employee initially shall report to Employer’s President (the
“Supervisor”).  Employee agrees to diligently and faithfully perform
such duties as may from time to time be assigned to Employee by the
Supervisor.  Employee recognizes the necessity for established
policies and procedures pertaining to Employer’s business operations, and
Employer’s right to change, revoke or supplement such policies and procedures at
any time, in Employer’s sole discretion.  Employee agrees to comply
with such policies and procedures, including those contained in any manuals or
handbooks, as may be amended from time to time in the sole discretion of
Employer.

    


    1.3                      No Salary or Benefits
Continuation Beyond Termination.  Except as may be required by
law or as otherwise specified in this Agreement or the Change in Control
Agreement between Employer and Employee dated December 20, 2006, and amended as
of the date hereof, or as may be amended from time to time (the “Change in
Control Agreement”), Employer shall not be liable to Employee for any salary or
benefits continuation beyond the date of Employee’s cessation of employment with
Employer.  The rights and obligations of the parties under the
provisions of this Agreement, including Sections 1.3, 1.5 and 4.1, shall survive
and remain binding and enforceable, notwithstanding the termination of
Employee’s employment for any reason, to the extent necessary to preserve the
intended benefits of such provisions.

    


    1.4                      Termination of
Employment.  Employee’s employment with Employer shall
terminate upon the earliest of:  (a) Employee’s death; (b) unless
waived by Employer, Employee’s “Disability”, (which for purposes of this
Agreement, shall mean either a physical or mental condition (as determined by a
qualified physician mutually agreeable to Employer and Employee) which renders
Employee unable, for a period of at least six (6) months, effectively to perform
the obligations, duties and responsibilities of Employee’s employment with
Employer); (c) the termination of Employee’s employment by Employer for Cause
(as hereinafter defined);  (d) Employee’s resignation; and (e) the
termination of Employee’s employment by Employer without Cause.  As
used herein, “Cause” shall mean Employer’s good faith determination
of:  (i) Employee’s dishonest, fraudulent or illegal conduct
relating to the business of Employer; (ii) Employee’s willful breach or
habitual neglect of Employee’s duties or obligations in connection with
Employee’s employment; (iii) Employee’s misappropriation of Employer funds;
(iv) Employee’s conviction of a felony or any other criminal offense
involving fraud or dishonesty, whether or not relating to the business of
Employer or Employee’s employment with Employer; (v) Employee’s excessive
use of alcohol; (vi) Employee’s use of controlled substances or other addictive
behavior; (vii) Employee’s unethical business conduct; (viii) Employee’s breach
of any statutory or common law duty of loyalty to Employer; or (ix) Employee’s
material breach of this Agreement, the Non-Competition and Non-Solicitation
Agreement between Employer and Employee as in effect on the date hereof or as
may be amended from time to time (the “Non-Competition Agreement”), the
Confidentiality and Intellectual Property Agreement between Employer and
Employee as in effect on the date hereof or as may be amended from time to time
(the “Confidentiality Agreement”) or the Change in Control
Agreement.  Upon termination of Employee’s employment with Employer
for any reason, Employee will promptly return to Employer all materials in any
form acquired by Employee as a result of such employment with Employer and all
property of Employer.

    


    1.5                      Severance Payments and
Vacation Pay.

    


    (a)           Vacation Pay in the Event of
a Termination of Employment.  In the event of the termination
of Employee’s employment with Employer for any reason, Employee shall be
entitled to receive, in addition to the Severance Payments described in Sections
1.5(b) below, if any,  the dollar value of any earned but unused (and
unforfeited) vacation.  Such dollar value shall be paid to Employee
within fifteen (15) days following the date of termination of
employment.

    


    (b)           Severance Payments in the
Case of a Termination Without Cause.  If Employee’s employment
is terminated by Employer without Cause, then Employee shall be entitled to
severance pay equal to continuation of Employee’s Base Salary (as hereinafter
defined) in effect as of the date of termination of employment, (such salary
continuation, the “Severance Payments”) for a period of twelve (12) months,
payable in accordance with Employer’s regular payroll practices commencing on
the first payroll date on or following the 36th day
following the date of termination.  Severance Payments shall be
reduced by any compensation that Employee earns during the twelve (12)
months following such termination of employment.  Employee agrees to
notify Employer of the amounts of such compensation earned.  Severance
Payments shall be subject to any applicable tax withholding
requirements.  Notwithstanding anything to the contrary herein, no
Severance Payments shall be due or made to Employee hereunder unless on or prior
to the thirty-sixth (36th) day
following the date of termination of employment, (i) Employee shall have
executed and delivered a general release in favor of Employer and its
affiliates, which shall be substantially in the form of the Separation Agreement
and Release attached hereto as Exhibit A and otherwise
satisfactory to Employer and (ii) such general release has become effective and
irrevocable.

    


    (c)  Medical
Insurance.  In the event of the termination of Employee’s
employment with Employer without Cause, Employer will provide or pay the cost of
continuing the medical coverage provided by Employer to Employee during his
employment at the same or a comparable coverage level, for a period of twelve
(12) months following such termination.  Employee agrees to make a
timely COBRA election, to the extent requested by Employer, to facilitate
Employer’s provision of continuation coverage.  Except as permitted by
Section 409A (as defined below), the continued benefits provided to Employee
pursuant to this Section 1.5(c) during any calendar year will not affect the
continued benefits to be provided to Employee pursuant to this Section 1.5(c) in
any other calendar year.

    


    (d)  Equity Award
Vesting.  In the event of (i) the termination of Employee’s
employment with Employer due to Employee’s death, (ii) the termination of
Employee’s employment with Employer due to Disability, or (iii) the termination
of Employee’s employment by Employer without Cause, Employee shall on the date
of such termination of employment immediately receive an additional twelve (12)
months’ vesting credit with respect to the stock options, stock appreciation
rights, restricted stock and other equity or equity-based compensation of
Employer granted to Employee in the course of his employment with Employer under
this Agreement (collectively, “Equity Awards”).  The shares of
Employer underlying any restricted stock units that become vested pursuant to
this Section 1.5(d) shall be payable on the vesting date.  Any of
Employee’s stock options and stock appreciation rights that become vested
pursuant to this Section 1.5(d) shall be exercisable immediately upon vesting,
and any such stock options and stock appreciation rights and any of Employee’s
stock options and stock appreciation rights that are otherwise vested and
exercisable as of Employee’s termination of employment shall remain exercisable
for one (1) year and ninety (90) days following Employee’s termination of
employment (or such longer period, as shall be provided by the applicable award
agreement), provided that, if during such period Employee is under any trading
restriction due to a lockup agreement or closed trading window such period shall
be tolled during the period of such trading restriction, and provided, further,
that in no event shall any stock option or stock appreciation right continue to
be exercisable after the original expiration date of such stock option or stock
appreciation right.  If the terms of this Agreement are contrary to or
conflict with the terms of any document or agreement addressing or governing the
Equity Awards, the terms of this Agreement shall apply except that no provision
in this Agreement shall operate to extend the term of any stock option or stock
appreciation right beyond its original expiration date.

    


    


    ARTICLE
II.  Compensation

    


    2.1                      Base
Salary.  Employee shall be compensated at an annual base salary
of $304,052 (the “Base
Salary”) while Employee is employed by Employer under this Agreement, subject to
such annual increases that Employer may in its sole discretion determine to be
appropriate.  Such Base Salary shall be paid in accordance with
Employer’s standard policies and shall be subject to applicable tax
withholding.

    


    2.2                      Annual Bonus
Eligibility.  Employee shall be eligible to receive an annual
bonus of up to fifty
percent (50%) of
Employee’s Base Salary based upon individual and company performance, as
determined by Employer in its sole discretion.  The specific bonus
eligibility and the standards for earning a bonus will be developed by Employer
and communicated to Employee as soon as practicable after the beginning of each
year.

    


    2.3                      Benefits.  Employee
also shall be eligible to receive all benefits as are available to similarly
situated employees of Employer generally, and any other benefits which Employer
may in its sole discretion elect to grant to Employee.  In addition,
Employee shall be entitled to three weeks paid vacation per
year, which shall be accrued in accordance with Employer’s policies applicable
to similarly situated employees of Employer.

    


    2.4                      Reimbursement of Business
Expenses.  Employee may incur reasonable expenses in the course
of employment hereunder for which Employee shall be eligible for reimbursement
or advances in accordance with Employer’s standard policy therefor.

    


    2.5                      Stock
Awards.  Employee will be eligible to participate in Employer’s
equity participation programs to acquire options or equity incentive
compensation units in the common stock of First Solar, Inc., subject to and in
accordance with the following contingencies: (1) additional terms contained
in Employer’s equity grant documentation, (2) approval if required of Employer’s
equity incentive plan by Employer's Board of Directors (the “Board”) and
shareholders of Employer, (3) approval of the grants by the Board, (4)
Employee’s execution of documents requested by Employer at the time of grant (5)
Employee’s continued employment through the grant date, (6) in accordance with
the 2006 Omnibus Equity Incentive Compensation Plan and (7) in accordance with
the policies, procedures and practices from time to time of the Employer for
granting such options or equity incentive compensation units.

    


    2.6                      Location.  The
position will be based in Perrysburg, Ohio.

    


    


    ARTICLE
III.  Absence of
Restrictions

    


    Employee hereby represents and warrants
that Employee has full power, authority and legal right to enter into this
Agreement and to carry out all obligations and duties hereunder and that the
execution, delivery and performance by Employee of this Agreement will not
violate or conflict with, or constitute a default under, any agreements or other
understandings to which Employee is a party or by which Employee may be bound or
affected, including any order, judgment or decree of any court or governmental
agency.

    


    


    ARTICLE
IV.  Miscellaneous

    


    4.1                      Withholding.  Any
payments made under this Agreement shall be subject to applicable federal, state
and local tax reporting and withholding requirements.

    


    4.2                      Governing
Law.  This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without reference
to the principles of conflicts of laws.  Any judicial action commenced
relating in any way to this Agreement including, the enforcement,
interpretation, or performance of this Agreement, shall be commenced and
maintained in a court of competent jurisdiction located in Maricopa County,
Arizona.  The parties hereby waive and relinquish any right to a jury
trial and agree that any dispute shall be heard and resolved by a court and
without a jury.  The parties further agree that the dispute
resolution, including any discovery, shall be accelerated and expedited to the
extent possible.  Each party’s agreements in this Section 4.2 are made
in consideration of the other party’s agreements in this Section 4.2, as well as
in other portions of this Agreement.

    


    4.3                      No
Waiver.  The failure of Employer or Employee to insist in any
one or more instances upon performance of any terms, covenants and conditions of
this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such terms,
covenants or conditions.

    


    4.4                      Notices.  All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered,
delivered by facsimile transmission or by courier or mailed, registered or
certified mail, postage prepaid as follows:

    


    If to
Employer:                                       First
Solar, Inc.

    350 West Washington
Street

    Suite 600

    Tempe, Arizona 85281

    Attention: Corporate
Secretary

    


    If to
Employee:                                       To
Employee’s then current address on file with

    Employer

    


    or at
such other address or addresses as any such party may have furnished to the
other party in writing in a manner provided in this Section 4.4.

    


    4.5                      Assignability and Binding
Effect.  This Agreement is for personal services and is
therefore not assignable by Employee.  This Agreement may be assigned
by Employer to any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of Employer.  This Agreement shall be binding upon and inure to
the benefit of the parties, their successors, assigns, heirs, executors and
legal representatives.  If there shall be a successor to Employer or
Employer shall assign this Agreement, then as used in this Agreement, (a) the
term “Employer” shall mean Employer as hereinbefore defined and any successor or
any permitted assignee, as applicable, to which this Agreement is assigned and
(b) the term “Board” shall mean the Board as hereinbefore defined and the board
of directors or equivalent governing body of any successor or any permitted
assignee, as applicable, to which this Agreement is assigned.

    


    4.6                      Entire
Agreement.  This Agreement, the Change in Control Agreement,
the Non-Competition Agreement and the Confidentiality Agreement set forth the
entire agreement between Employer and Employee regarding the terms of Employee’s
employment and supersedes all prior agreements between Employer and Employee
covering the terms of Employee’s employment (including the Prior
Agreement).  This Agreement may not be amended or modified except in a
written instrument signed by Employer and Employee identifying this Agreement
and stating the intention to amend or modify it.

    


    4.7                      Severability.  If
it is determined by a court of competent jurisdiction that any of the
restrictions or language in this Agreement are for any reason invalid or
unenforceable, the parties desire and agree that the court revise any such
restrictions or language, including reducing any time or geographic area, so as
to render them valid and enforceable to the fullest extent allowed by
law.  If any restriction or language in this Agreement is for any
reason invalid or unenforceable and cannot by law be revised so as to render it
valid and enforceable, then the parties desire and agree that the court strike
only the invalid and unenforceable language and enforce the balance of this
Agreement to the fullest extent allowed by law.  Employer and Employee
agree that the invalidity or unenforceability of any provision of this Agreement
shall not affect the remainder of this Agreement.

    


    4.8                      Construction.  As
used in this Agreement, words such as “herein,” “hereinafter,” “hereby” and
“hereunder,” and the words of like import refer to this Agreement, unless the
context requires otherwise.  The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.

    


    


    ARTICLE
V.  Section
409A

    


    5.1                      In
General.  It is intended that the provisions of this Agreement
comply with Section 409A of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder as in effect from time to time (collectively,
“Section 409A”), and all provisions of this Agreement shall be construed and
interpreted in a manner consistent with the requirements for avoiding taxes or
penalties under Section 409A.

    


    5.2                      No Alienation, Set-offs,
Etc.  Neither Employee nor any creditor or beneficiary of
Employee shall have the right to subject any deferred compensation (within the
meaning of Section 409A) payable under this Agreement or under any other plan,
policy, arrangement or agreement of or with Employer or any of its affiliates
(this Agreement and such other plans, policies, arrangements and agreements, the
“Employer Plans”) to any anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment.  Except as permitted
under Section 409A, any deferred compensation (within the meaning of Section
409A) payable to or for the benefit of Employee under any Employer Plan may not
be reduced by, or offset against, any amount owing by Employee to Employer or
any of its affiliates.

    


    5.3                      Possible Six-Month
Delay.  If, at the time of Employee’s separation from service
(within the meaning of Section 409A), (a) Employee shall be a specified employee
(within the meaning of Section 409A and using the identification methodology
selected by Employer from time to time) and (b) Employer shall make a good faith
determination that an amount payable under an Employer Plan constitutes deferred
compensation (within the meaning of Section 409A) the payment of which is
required to be delayed pursuant to the six-month delay rule set forth in Section
409A in order to avoid taxes or penalties under Section 409A, then Employer (or
an affiliate thereof, as applicable) shall not pay such amount on the otherwise
scheduled payment date but shall instead accumulate such amount and pay it,
without interest, on the first day of the seventh month following such
separation from service.

    


    5.4                      Treatment of
Installments.  For purposes of Section 409A, each of the
installments of continued Base Salary referred to in Section 1.5(b) shall be
deemed to be a separate payment as permitted under Treas. Reg. Sec.
1.409A-2(b)(2)(iii).

    


    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

    



    
      
        
          Eaglesham
Employment
Agreement                                                                                                                                          (rev.
11/18/08)

        

         


      

      
         


        
          

        

      

      
         


      

    


    


    IN WITNESS WHEREOF, Employer has caused
this Agreement to be executed by one of its duly authorized officers and
Employee has individually executed this Agreement, each intending to be legally
bound, as of the date first above written.

    


    EMPLOYEE:

    


    


    /s/ David
Eaglesham

    David Eaglesham

    


    


    


    EMPLOYER:

    


    First Solar, Inc.

    


    


    By: /s/ Carol
Campbell

    


    Name Printed: Carol
Campbell                                                                

    


    Title: Vice President, Human
Resources                                                                

    



    
      
        
          


          First
Solar, Inc.

          Page  of
8

          Eaglesham
Employment
Agreement                                                                                                                                          (rev.
11/18/08)

        

         


      

      
         


        
          

        

      

      
         


      

    


    Exhibit
A

     

    SEPARATION AGREEMENT AND
RELEASE

    


    I.  Release.  For
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, with the intention of binding himself/herself,
his/her heirs, executors, administrators and assigns, does hereby release and
forever discharge First Solar, Inc., a Delaware corporation (the “Company”), and its
present and former officers, directors, executives, agents, employees,
affiliated companies, subsidiaries, successors, predecessors and assigns
(collectively, the “Released Parties”),
from any and all claims, actions, causes of action, demands, rights, damages,
debts, accounts, suits, expenses, attorneys’ fees and liabilities of whatever
kind or nature in law, equity, or otherwise, whether now known or unknown
(collectively, the “Claims”), which the
undersigned now has, owns or holds, or has at any time heretofore had, owned or
held against any Released Party, arising out of or in any way connected with the
undersigned’s employment relationship with the Company, its subsidiaries,
predecessors or affiliated entities, or the termination thereof, under any
Federal, state or local statute, rule, or regulation, or principle of common,
tort or contract law, including but not limited to, the Fair Labor Standards Act
of 1938, as
amended, 29
U.S.C. §§ 201 et seq., the Family and
Medical Leave Act of 1993, as amended (the “FMLA”), 29 U.S.C.
§§ 2601 et
seq.,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e et seq., the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§§ 621 et
seq., the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C.
§§ 12101 et seq., the Worker
Adjustment and Retraining Notification Act of 1988, as amended, 29 U.S.C.
§§ 2101 et
seq., the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
§§ 1001 et
seq., and any
other equivalent or similar Federal, state, or local statute; provided, however, that nothing
herein shall release the Company (a) from its obligations under that certain
[Employment Agreement] [Change in Control Severance Agreement] to which the
undersigned is a party and pursuant to which this Separation Agreement and
Release is being executed and delivered, (b) from any claims by the undersigned
arising out of any director and officer indemnification or insurance obligations
in favor of the undersigned (c) from any director and officer indemnification
obligations under the Company’s by-laws, and (d) from any claim for benefits
under the First Solar, Inc. 401(k) Plan.  The undersigned understands
that, as a result of executing this Separation Agreement and Release, he/she
will not have the right to assert that the Company or any other Released Party
unlawfully terminated his/her employment or violated any of his/her rights in
connection with his/her employment or otherwise.

     

    The
undersigned affirms that he/she has not filed, caused to be filed, or presently
is a party to any Claim, complaint or action against any Released Party in any
forum or form and that he/she knows of no facts which may lead to any Claim,
complaint or action being filed against any Released Party in any forum by the
undersigned or by any agency, group, or class persons.  The
undersigned further affirms that he/she has been paid and/or has received all
leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or
benefits to which he/she may be entitled and that no other leave (paid or
unpaid), compensation, wages, bonuses, commissions and/or benefits are due to
him/her from the Company and its subsidiaries, except as specifically provided
in this Separation Agreement and Release.  The undersigned furthermore
affirms that he/she has no known workplace injuries or occupational diseases and
has been provided and/or has not been denied any leave requested under the
FMLA.  If any agency or court assumes jurisdiction of any such Claim,
complaint or action against any Released Party on behalf of the undersigned, the
undersigned will request such agency or court to withdraw the
matter.

     

    The
undersigned further declares and represents that he/she has carefully read and
fully understands the terms of this Separation Agreement and Release and that
he/she has been advised and had the opportunity to seek the advice and
assistance of counsel with regard to this Separation Agreement and Release, that
he/she may take up to and including 21 days from receipt of this Separation
Agreement and Release, to consider whether to sign this Separation Agreement and
Release, that he/she may revoke this Separation Agreement and Release within
seven calendar days after signing it by delivering to the Company written
notification of revocation, and that he/she knowingly and voluntarily, of
his/her own free will, without any duress, being fully informed and after due
deliberate action, accepts the terms of and signs the same as his own free
act.

     

    [To
effect a full and complete general release as described above, the undersigned
expressly waives and relinquishes all rights and benefits of Section 1542 of the
Civil Code of the State of California, and the undersigned does so understanding
and acknowledging the significance and consequence of specifically waiving
Section 1542.  Section 1542 of the Civil Code of the State of
California states as follows:

    


    A general
release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him
must have materially affected his settlement with the debtor.

    


    Thus,
notwithstanding the provisions of Section 1542, and to implement a full and
complete release and discharge of the Released Parties, the undersigned
expressly acknowledges this Separation Agreement and Release is intended to
include in its effect, without limitation, all Claims the undersigned does not
know or suspect to exist in the undersigned’s favor at the time of signing this
Separation Agreement and Release, and that this Separation Agreement and Release
contemplates the extinguishment of any such Claim or Claims.]1

     

    II.  Protected
Rights.  The Company and the undersigned agree that nothing in
this Separation Agreement and Release is intended to or shall be construed to
affect, limit or otherwise interfere with any non-waivable right of the
undersigned under any Federal, state or local law, including the right to file a
charge or participate in an investigation or proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”) or to exercise
any other right that cannot be waived under applicable law.  The
undersigned is releasing, however, his/her right to any monetary recovery or
relief should the EEOC or any other agency pursue Claims on his/her
behalf.  Further, should the EEOC or any other agency obtain monetary
relief on his/her behalf, the undersigned assigns to the Company all rights to
such relief.

     

    III.  Equitable
Remedies.  The undersigned acknowledges that a violation by the
undersigned of any of the covenants contained in this Agreement would cause
irreparable damage to the Company and its subsidiaries in an amount that would
be material but not readily ascertainable, and that any remedy at law (including
the payment of damages) would be inadequate.  Accordingly, the
undersigned agrees that, notwithstanding any provision of this Separation
Agreement and Release to the contrary, the Company shall be entitled (without
the necessity of showing economic loss or other actual damage) to injunctive
relief (including temporary restraining orders, preliminary injunctions and/or
permanent injunctions) in any court of competent jurisdiction for any actual or
threatened breach of any of the covenants set forth in this Agreement in
addition to any other legal or equitable remedies it may have.

     

    IV.  Return of
Property.  The undersigned shall return to the Company on or
before [10 DAYS AFTER TERMINATION DATE], all property of the Company in the
undersigned’s possession or subject to the undersigned’s control, including
without limitation any laptop computers, keys, credit cards, cellular telephones
and files.  The undersigned shall not alter any of the Company’s
records or computer files in any way after [TERMINATION DATE].

     

    V.  Severability.  If
any term or provision of this Separation Agreement and Release is invalid,
illegal or incapable of being enforced by any applicable law or public policy,
all other conditions and provisions of this Separation Agreement and Release
shall nonetheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated by this Separation Agreement
and Release is not affected in any manner materially adverse to any
party.

     

    VI.  GOVERNING
LAW.  THIS
SEPARATION AGREEMENT AND RELEASE SHALL BE DEEMED TO BE MADE IN THE STATE OF
DELAWARE, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT IN ALL RESPECTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.

     

    

      

    

      
      1 Only
include for employees who were employed by the Company or its subsidiaries in
California.

       

    


    
      
        
          Eaglesham
Sample Release
Agreement                                                                                                                                          (rev.
11/18/08)

        

         


      

      
         


        
          

        

      

      
         


      

    


    Effective
on the eighth calendar day following the date set forth below.

    


    
      	
              FIRST
      SOLAR, INC..

            
	
              By

            
	 
      	 
      
	 
      	
              Name:

              Title:

            


    

    


    


    
      	
              EMPLOYEE,

            
	 
      	 
      
	 
      	
              David
      Eaglesham

            
	 
      	
               

              Date

               

              Signed:_________________________

            


    

    



    
      
        
           

          Eaglesham
Sample Release
Agreement                                                                                                                                          (rev.
11/18/08)

        

         


      

      
         


        
          

        

      

      
         


      

    


    CHANGE IN
CONTROL SEVERANCE AGREEMENT (this “Agreement”) dated as
of December 20, 2006, between First Solar, Inc., a Delaware corporation (the
“Company”), and
David Eaglesham (the
“Executive”),
and amended and restated as of December 1, 2008.

     

    WHEREAS
the Executive is a skilled and dedicated employee of the Company who has
important management responsibilities and talents that benefit the
Company;

     

    WHEREAS
the Board of Directors of the Company (the “Board”) considers it
essential to the best interests of the Company and its stockholders to assure
that the Company and its subsidiaries will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of a Change in
Control (as defined below); and

     

    WHEREAS
the Board believes that it is imperative to diminish the distraction of the
Executive inherently present by virtue of the uncertainties and risks created by
the circumstances surrounding a Change in Control and to ensure the Executive’s
full attention to the Company and its subsidiaries during such a period of
uncertainty;

     

    NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:

     

    SECTION
1.  Definitions.  For
purposes of this Agreement, the following terms shall have the meanings set
forth below:

     

    (a)  “280G Gross-Up
Payment” shall have the meaning set forth in
Section 5(a).

     

    (b)  “Accounting Firm”
shall have the meaning set forth in Section 5(b).

     

    (c)  “Accrued Rights” shall
have the meaning set forth in Section 4(a)(iv).

     

    (d)  “Affiliate(s)” means,
with respect to any specified Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such specified Person.

     

    (e)  “Annual Base Salary”
shall mean the greater of the Executive’s annual rate of base salary in effect
(i) immediately prior to the Change in Control Date and (ii) immediately prior
to the Termination Date.

     

    (f)  “Annual Bonus” shall
mean the target annual cash bonus the Executive is eligible to earn (assuming
100% fulfillment of all elements of the formula under which such bonus would
have been calculated) for the year in which the Termination Date
occurs.

     

    (g)  “Bonus Amount” means,
as of the Termination Date, the greater of (i) the Annual Bonus and
(ii) the average annual cash bonuses payable to the Executive in respect of
any of the three calendar years immediately preceding the Termination
Date.

     

    (h)  “Cause” means the
occurrence of any one of the following:

     

    (i)  the
Executive is convicted of, or pleads guilty or nolo contendere to,
(A) a misdemeanor involving moral turpitude or misappropriation of the
assets of the Company or a Subsidiary or (B) any felony (or the equivalent
of such a misdemeanor or felony in a jurisdiction outside of the United
States);

     

    (ii)  the
Executive commits one or more acts or omissions constituting gross negligence,
fraud or other gross misconduct that the Company reasonably and in good faith
determines has a materially detrimental effect on the Company;

     

    (iii)  the
Executive continually and willfully fails, for at least 14 days following
written notice from the Company, to perform substantially the Executive’s
employment duties (other than as a result of incapacity due to physical or
mental illness or after delivery by the Executive of a Notice of Termination for
Good Reason); or

     

    (iv)  the
Executive commits a gross violation of any of the Company’s material policies
(including the Company’s Code of Business Conduct and Ethics, as in effect from
time to time) that the Company reasonably and in good faith determines is
materially detrimental to the best interests of the Company.

     

    The
termination of employment of the Executive for Cause shall not be effective
unless and until there has been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board (excluding the Executive) at a meeting of the
Board called and held for such purpose (after reasonable notice is provided to
the Executive and the Executive is given an opportunity, together with counsel,
to be heard before the Board), finding that in the good faith opinion of the
Board, the Executive is guilty of the conduct described in clause (i),
(ii), (iii) or (iv) above and specifying the particulars thereof in
detail.

     

    (i)  “Change in Control”
means the occurrence of any of the following:

     

    (i)  individuals
who, as of the date of this Agreement, were members of the Board (the “Incumbent Directors”)
cease for any reason to constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date of this Agreement whose
appointment or election, or nomination for election, by the Company’s
stockholders was approved by a vote of at least a majority of the Incumbent
Directors shall be considered as though such individual were an Incumbent
Director, but excluding, for purposes of this proviso, any such individual whose
assumption of office after the date of this Agreement occurs as a result of an
actual or threatened proxy contest with respect to election or removal of
directors or other actual or threatened solicitation of proxies or consents by
or on behalf of any “person” (as such term is used in Section 13(d) of the
Exchange Act) (each, a “Person”) other than
the Board or any Specified Shareholder;

     

    (ii)  the
consummation of (A) a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving (x) the Company or (y) any of its
Subsidiaries, but in the case of this clause (y) only if Company Voting
Securities (as defined below) are issued or issuable in connection with such
transaction (each of the transactions referred to in this clause (A) being
hereinafter referred to as a “Reorganization”) or
(B) a sale or other disposition of all or substantially all the assets of
the Company (a “Sale”), unless,
immediately following such Reorganization or Sale, (1) all or substantially
all the individuals and entities who were the “beneficial owners” (as such term
is defined in Rule 13d-3 under the Exchange Act (or a successor rule thereto))
of shares of the Company’s common stock or other securities eligible to vote for
the election of the Board outstanding immediately prior to the consummation of
such Reorganization or Sale (such securities, the “Company Voting
Securities”) beneficially own, directly or indirectly, more than 50% of
the combined voting power of the then outstanding voting securities of the
corporation or other entity resulting from such Reorganization or Sale
(including a corporation or other entity that, as a result of such transaction,
owns the Company or all or substantially all the Company’s assets either
directly or through one or more subsidiaries) (the “Continuing Entity”)
in substantially the same proportions as their ownership, immediately prior to
the consummation of such Reorganization or Sale, of the outstanding Company
Voting Securities (excluding any outstanding voting securities of the Continuing
Entity that such beneficial owners hold immediately following the consummation
of such Reorganization or Sale as a result of their ownership prior to such
consummation of voting securities of any corporation or other entity involved in
or forming part of such Reorganization or Sale other than the Company or a
Subsidiary), (2) no Person (excluding (x) any employee benefit plan (or
related trust) sponsored or maintained by the Continuing Entity or any
corporation or other entity controlled by the Continuing Entity and (y) any
Specified Shareholder) beneficially owns, directly or indirectly, 20% or more of
the combined voting power of the then outstanding voting securities of the
Continuing Entity and (3) at least a majority of the members of the board
of directors or other governing body of the Continuing Entity were Incumbent
Directors at the time of the execution of the definitive agreement providing for
such Reorganization or Sale or, in the absence of such an agreement, at the time
at which approval of the Board was obtained for such Reorganization or
Sale;

     

    (iii)  the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company, unless such liquidation or dissolution is part of a
transaction or series of transactions described in Section 1(i)(ii) that does
not otherwise constitute a Change in Control; or

     

    (iv)  any
Person, corporation or other entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) other than any Specified Shareholder
becomes the beneficial owner, directly or indirectly, of securities of the
Company representing a percentage of the combined voting power of the Company
Voting Securities that is equal to or greater than the greater of (x) 20% and
(y) the percentage of the combined voting power of the Company Voting Securities
beneficially owned directly or indirectly by all the Specified Shareholders at
such time; provided, however, that for
purposes of this Section 1(i)(iv) only (and not for purposes of Sections 1(i)(i)
through (iii)), the following acquisitions shall not constitute a Change in
Control:  (A) any acquisition by the Company or any Subsidiary,
(B) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, (C) any
acquisition by an underwriter temporarily holding such Company Voting Securities
pursuant to an offering of such securities or (D) any acquisition pursuant
to a Reorganization or Sale that does not constitute a Change in Control for
purposes of Section 1(i)(ii).

     

    (j)  “Change in Control
Date” means the date on which a Change in Control occurs.

     

    (k)  “COBRA” shall have the
meaning set forth in Section 4(a)(iii).

     

    (l)  “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated thereunder.

     

    (m)  “Company Voting
Securities” shall have the meaning set forth in Section
1(i)(ii).

     

    (n)  “Continuing Entity”
shall have the meaning set forth in Section 1(i)(ii).

     

    (o)  “Disability” shall
have the meaning set forth in Section 4(b)(ii).

     

    (p)  “Effective Date” shall
have the meaning set forth in Section 2.

     

    (q)  “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, or any
successor statute thereto.

     

    (r)  “Excise Tax” means the
excise tax imposed by Section 4999 of the Code, together with any interest or
penalties imposed with respect to such tax.

     

    (s)  “Executive Tax Year”
shall have the meaning set forth in Section 4(a)(iii).

     

    (t)  “Good Reason” means,
without the Executive’s express written consent, the occurrence of any one or
more of the following:

     

    (i)  any
material reduction in the authority, duties or responsibilities held by the
Executive immediately prior to the Change in Control Date, but excluding for
this purpose an inadvertent reduction not occurring in bad faith and which is
remedied by the Company within ten business days after receipt of notice thereof
given by the Executive;

     

    (ii)  any
material reduction in the annual base salary or annual incentive opportunity of
the Executive as in effect immediately prior to the Change in Control Date,
other than an inadvertent reduction not occurring in bad faith and which is
remedied by the Company within ten business days after receipt of notice thereof
given by the Executive;

     

    (iii)  any
change of the Executive’s principal place of employment to a location more than
50 miles from the Executive’s principal place of employment immediately prior to
the Change in Control Date;

     

    (iv)  any
failure of the Company to pay the Executive any compensation when due (other
than an inadvertent failure that is remedied within ten business days after
receipt of written notice thereof given by the Executive);

     

    (v)  delivery
by the Company or any Subsidiary of a written notice to the Executive of the
intent to terminate the Executive’s employment for any reason, other than Cause
or Disability, in each case in accordance with this Agreement, regardless of
whether such termination is intended to become effective during or after the
Protection Period; or

     

    (vi)  any
failure by the Company to comply with and satisfy the requirements of Section
10(c).

     

    The
Executive’s right to terminate employment for Good Reason shall not be affected
by the Executive’s incapacity due to physical or mental illness.  A
termination of employment by the Executive for Good Reason for purposes of this
Agreement shall be effectuated by giving the Company written notice (“Notice of Termination for
Good Reason”) of the termination setting forth in reasonable detail the
specific conduct of the Company that constitutes Good Reason and the specific
provisions of this Agreement on which the Executive relied, provided that such
notice must be delivered to the Company no later than three months after the
occurrence of the event or events constituting Good Reason.  Unless
the parties agree otherwise, a termination of employment by the Executive for
Good Reason shall be effective on the 30th day following the date when the
Notice of Termination for Good Reason is given, unless the Company elects to
treat such termination as effective as of an earlier date; provided, however, that so long
as an event that constitutes Good Reason occurs during the Protection Period and
the Executive delivers the Notice of Termination for Good Reason at any time
prior to the earlier of the end of the six-month period following the occurrence
of such event, for purposes of the payments, benefits and other entitlements set
forth herein, the termination of the Executive’s employment pursuant thereto
shall be deemed to occur during the Protection Period.

     

    (u)  “Incumbent Directors”
shall have the meaning set forth in Section 1(i)(i).

     

    (v)  “Notice of Termination for
Good Reason” shall have the meaning set forth in
Section 1(t).

     

    (w)  “Payment” means any
payment, benefit or distribution (or combination thereof) by the Company, any of
its Affiliates or any trust established by the Company or its Affiliates, to or
for the benefit of the Executive, whether paid, payable, distributed,
distributable or provided pursuant to this Agreement or otherwise, including any
payment, benefit or other right that constitutes a “parachute payment” within
the meaning of Section 280G of the Code.

     

    (x)  “Person” shall have
the meaning set forth in Section 1(i)(i).

     

    (y)  “Protection Period”
means the period commencing on the Change in Control Date and ending on the
second anniversary thereof.

     

    (z)  “Qualifying
Termination” means any termination of the Executive’s employment
(i) by the Company, other than for Cause, death or Disability, that is
effective (or with respect to which the Executive is given written notice)
during the Protection Period, (ii) by the Executive for Good Reason during
the Protection Period or (iii) by the Company that is effective prior to
the Change in Control Date, other than for Cause, death or Disability, at the
request or direction of a third party who took action that caused, or is
involved in or a party to, a Change in Control.

     

    (aa)  “Release” shall have
the meaning set forth in Section 4(a)(v).

     

    (bb)  “Release Effective
Date” shall mean the date the Release becomes effective and
irrevocable.

     

    (cc)  “Reorganization” shall
have the meaning set forth in Section 1(i)(ii).

     

    (dd)  “Safe Harbor Amount”
shall have the meaning set forth in Section 5(a).

     

    (ee)  “Sale” shall have the
meaning set forth in Section 1(i)(ii).

     

    (ff)  “Specified
Shareholder” shall mean any of (i) the Estate of John T. Walton and its
beneficiaries, (ii) JCL Holdings, LLC and its beneficiaries, (iii) Michael J.
Ahearn and any of his immediate family, (iv) any Person directly or indirectly
controlled by any of the foregoing and (v) any trust for the direct or indirect
benefit of any of the foregoing.

     

    (gg)  “Subsidiary” means any
entity in which the Company, directly or indirectly, possesses 50% or more of
the total combined voting power of all classes of its stock.

     

    (hh)  “Successor” shall have
the meaning set forth in Section 10(c).

     

    (ii)  “Termination Date”
means the date on which the termination of the Executive’s employment, in
accordance with the terms of this Agreement, is effective, provided that in the
event of a Qualifying Termination described in clause (iii) of the
definition thereof, the Termination Date shall be deemed to be the Change in
Control Date.

     

    (jj)  “Underpayment” shall
have the meaning set forth in Section 5(b).

     

    SECTION
2.  Effectiveness and
Term.  This Agreement was originally effective on December 20,
2006 (the “Effective Date”).  This Agreement shall remain in effect
until the third anniversary of the Effective Date, except that, beginning on the
second anniversary of the Effective Date and on each anniversary thereafter, the
term of this Agreement shall be automatically extended for an additional
one-year period, unless the Company or the Executive provides the other party
with 60 days’ prior written notice before the applicable anniversary that the
term of this Agreement shall not be so extended.  Notwithstanding the
foregoing, in the event of a Change in Control during the term of this Agreement
(whether the original term or the term as extended), this Agreement shall not
thereafter terminate, and the term hereof shall be extended, until the Company
and its Subsidiaries have performed all their obligations hereunder with no
future performance being possible; provided, however, that this
Agreement shall only be effective with respect to the first Change in Control
that occurs during the term of this Agreement.

     

    SECTION
3.  Impact of a Change in
Control on Equity Compensation Awards.  Effective as of the
Change in Control Date, notwithstanding any provision to the contrary, other
than any such provision which expressly provides that this Section 3 of
this Agreement does not apply (which provision shall be given full force and
effect), in any of the Company’s equity-based, equity-related or other long-term
incentive compensation plans, practices, policies and programs (including the
Company’s 2003 Unit Option Plan and the Company 2006 Omnibus Incentive
Compensation Plan) or any award agreements thereunder, (a) all outstanding stock
options, stock appreciation rights and similar rights and awards then held by
the Executive that are unexercisable or otherwise unvested shall automatically
become fully vested and immediately exercisable, as the case may be,
(b) all outstanding equity-based, equity-related and other long-term
incentive awards then held by the Executive that are subject to
performance-based vesting criteria shall automatically become fully vested and
earned at a deemed performance level equal to the maximum performance level with
respect to such awards and (c) all other outstanding equity-based,
equity-related and long-term incentive awards, to the extent not covered by the
foregoing clause (a) or (b), then held by the Executive that are
unvested or subject to restrictions or forfeiture shall automatically become
fully vested and all restrictions and forfeiture provisions related thereto
shall lapse.

     

    SECTION
4.  Termination of
Employment.  (a)  Qualifying
Termination.  In the event of a Qualifying Termination, the
Executive shall be entitled, subject to Section 4(a)(vi), to the following
payments and benefits:

     

    (i)  Severance
Pay.  The Company shall pay the Executive an amount equal to
two times the sum of (A) the Executive’s Annual Base Salary (without regard to
any reduction giving rise to Good Reason) and (B)  the Bonus Amount, in a
lump-sum payment payable on the tenth business day after the Release Effective
Date; provided,
however, that
such amount shall be paid in lieu of, and the Executive hereby waives the right
to receive, any other cash severance payment relating to salary or bonus
continuation the Executive is otherwise eligible to receive upon termination of
employment under any severance plan, practice, policy or program of the Company
or any Subsidiary.

     

    (ii)  Prorated Annual
Bonus.  The Company shall pay the Executive an amount equal to
the product of (A) the Executive’s Annual Bonus and (B) a fraction, the
numerator of which is the number of days in the Company’s fiscal year containing
the Termination Date that the Executive was employed by the Company or any
Affiliate, and the denominator of which is 365, in a lump-sum payment on the
tenth business day after the Release Effective Date.

     

    (iii)  Continued Welfare
Benefits.  The Company shall, at its option, either
(A) continue to provide medical, life insurance, accident insurance and
disability benefits to the Executive and the Executive’s spouse and dependents
at least equal to the benefits provided by the Company and its Subsidiaries
generally to other active peer executives of the Company and its Subsidiaries,
or (B) pay Executive the cost of obtaining equivalent coverage, in the case of
each of clauses (A) and (B), for a period of time commencing on the Termination
Date and ending on the date that is eighteen (18) months after the Termination
Date; provided, however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility.  Any provision of benefits pursuant
to this Section 4(a)(iii) in one (1) tax year of the Executive (the “Executive Tax Year”)
shall not affect the amount of such benefits to be provided in any other
Executive Tax Year.  The right to such benefits shall not be subject
to liquidation or exchange for any other benefit.  Executive agrees to
make (and to cause his dependents to make) a timely election under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) to the extent
requested by Employer, to facilitate Employer’s provision of continuation
coverage.

     

    (iv)  Accrued
Rights.  The Executive shall be entitled to (A) payments of any
unpaid salary, bonuses or other amount earned or accrued through the Termination
Date and reimbursement of any unreimbursed business expenses incurred through
the Termination Date, (B) any payments explicitly set forth in any other benefit
plans, practices, policies and programs in which the Executive participates, and
(C) any payments the Company is or becomes obligated to make pursuant to
Sections 5, 7 and 12 (the rights to such payments, the “Accrued
Rights”).  The Accrued Rights payable pursuant to Section 4(a)(iv)(A)
and Section 4(a)(iv)(B) shall be payable on their respective otherwise scheduled
payment dates, provided that any amounts payable in respect of accrued but
unused vacation shall be paid in a lump sum within 15 days following the
Termination Date.  The Accrued Rights payable pursuant to Section
4(a)(iv)(C) shall be payable at the times set forth in the applicable Section
hereof.

     

    (v)  Outplacement.  The
Company shall reimburse the Executive for individual outplacement services to be
provided by a firm of the Executive’s choice or, at the Executive’s election,
provide the Executive with the use of office space, office supplies, and
secretarial assistance satisfactory to the Executive.  The aggregate
expenditures of the Company pursuant to this paragraph shall not exceed
$20,000.  Notwithstanding anything to the contrary in this Agreement,
the outplacement benefits under this Section 4(a)(v) shall be provided to the
Executive for no longer than the one-year period following the Termination Date,
and the amount of any outplacement benefits or office space, office supplies and
secretarial assistance provided to the Executive in any Executive Tax Year shall
not affect the amount of any such outplacement benefits or office space, office
supplies and secretarial assistance provided to the Executive in any other
Executive Tax Year.

     

    (vi)  Release of Claims;
Non-Competition.  Notwithstanding any provision of this
Agreement to the contrary, unless on or prior to the tenth (10th)
business day prior to March 15 of the year following the year in which the
Termination Date occurs, the Executive has executed and delivered a Separation
Agreement and Release (the “Release”)
substantially in the form of Exhibit A to the employment agreement between the
Executive and the Company and the Release Effective Date shall have occurred,
(A) no payments shall be paid or made available to the Executive under Section
4(a)(i) or 4(a)(ii), (B) the Company shall be relieved of all obligations to
provide or make available any further benefits to the Executive pursuant to
Section 4(a)(iii) and 4(a)(v) and (C) the Executive shall be required to repay
the Company, in cash, within five business days after written demand is made
therefor by the Company, an amount equal to the value of any benefits received
by the Executive pursuant to Section 4(a)(iii) and 4(a)(v) prior to such
date.

     

    (b)  Termination on Account of
Death or Disability; Non-Qualifying Termination.

     

    (i)  In
the event of any termination of Executive’s employment other than a Qualifying
Termination, the Executive shall not be entitled to any additional payments or
benefits from the Company under this Agreement, other than payments or benefits
with respect to the Accrued Rights.

     

    (ii)  For
purposes of this Agreement, the Executive shall be deemed to have a “Disability” in the
event of the Executive’s absence for a period of 180 consecutive
business days as a result of incapacity due to a physical or mental condition,
illness or injury which is determined to be total and permanent by a physician
mutually acceptable to the Company and the Executive or the Executive’s legal
representative (such acceptance not to be unreasonably withheld) after such
physician has completed an examination of the Executive.  The
Executive agrees to make himself available for such examination upon the
reasonable request of the Company, and the Company shall be responsible for the
cost of such examination.

     

    SECTION
5.  Certain Additional Payments
by the Company.

     

    (a)  Notwithstanding
anything in this Agreement to the contrary and except as set forth below, in the
event it shall be determined that any Payment that is paid or payable during the
term of this Agreement would be subject to the Excise Tax, the Executive shall
be entitled to receive an additional payment (a “280G Gross-Up
Payment”) in an amount such that, after payment by the Executive of all
taxes (and any interest or penalties imposed with respect to such taxes),
including any income and employment taxes and Excise Taxes imposed upon the 280G
Gross-Up Payment, the Executive retains an amount of the 280G Gross-Up Payment
equal to the Excise Tax imposed upon such Payments.  The Company’s
obligation to make 280G Gross-Up Payments under this Section 5 shall not be
conditioned upon the Executive’s termination of employment and shall survive and
apply after the Executive’s termination of
employment.  Notwithstanding the foregoing provisions of this Section
5(a), if it shall be determined that the Executive is entitled to a 280G
Gross-Up Payment, but that the Payments do not exceed 110% of the greatest
amount that could be paid to the Executive without giving rise to any Excise Tax
(the “Safe Harbor
Amount”), then no 280G Gross-Up Payment shall be made to the Executive
and the amounts payable under this Agreement shall be reduced so that the
Payments, in the aggregate, are reduced to the Safe Harbor Amount.  If
such a reduction is necessary, the Payments shall be reduced in the following
order:  (i) the Payments payable under Section 4(a)(i) (severance),
(ii) the Payments payable under Section 4(a)(ii) (prorated annual bonus), (iii)
any other cash Payments, (iv) the Payments payable under Section 4(a)(iii)
(welfare benefit continuation) and (v) the accelerated vesting under Section
3.

     

    (b)           Subject
to the provisions of Section 5(c), all determinations required to be made under
this Section 5, including whether and when a 280G Gross-Up Payment is required,
the amount of such 280G Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made in accordance with the terms of
this Section 5 by a nationally recognized certified public accounting firm that
shall be designated by the Executive (the “Accounting
Firm”).  The Accounting Firm shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment or such
earlier time as is requested by the Company.  For purposes of
determining the amount of any 280G Gross-Up Payment, the Executive shall be
deemed to pay Federal income tax at the highest marginal rate applicable to
individuals in the calendar year in which any such 280G Gross-Up Payment is to
be made and deemed to pay state and local income taxes at the highest marginal
rates applicable to individuals in the state or locality of the Executive’s
residence or place of employment in the calendar year in which any such 280G
Gross-Up Payment is to be made, net of the maximum reduction in Federal income
taxes that can be obtained from deduction of state and local taxes, taking into
account limitations applicable to individuals subject to Federal income tax at
the highest marginal rate.  All fees and expenses of the Accounting
Firm shall be borne solely by the Company.  Any 280G Gross-Up Payment,
as determined pursuant to this Section 5, shall be paid by the Company to the
Executive within five business days of the receipt of the Accounting Firm’s
determination.  If the Accounting Firm determines that no Excise Tax
is payable by the Executive, it shall so indicate to the Executive in
writing.  Any determination by the Accounting Firm shall be binding
upon the Company and the Executive.  As a result of the uncertainty in
the application of Section 4999 of the Code, at the time of the initial
determination by the Accounting Firm hereunder, it is possible that 280G
Gross-Up Payments that will not have been made by the Company should have been
made (an “Underpayment”),
consistent with the calculations required to be made hereunder.  In
the event the Company exhausts its remedies pursuant to Section 5(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be paid by the Company to the Executive within
five business days of the receipt of the Accounting Firm’s
determination.

     

    (c)           The
Executive shall notify the Company in writing of any written claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a 280G Gross-Up Payment.  Such notification shall be given
as soon as practicable, but no later than ten business days after the Executive
is informed in writing of such claim.  Failure to give timely notice
shall not prejudice the Executive’s right to 280G Gross-Up Payments and rights
of indemnity under this Section 5.  The Executive shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid.  The Executive shall not pay such claim prior to
the expiration of the 30 day period following the date on which the Executive
gives such notice to the Company (or such shorter period ending on the date that
any payment of taxes with respect to such claim is due).  If the
Company notifies the Executive in writing prior to the expiration of such period
that the Company desires to contest such claim, the Executive shall: (i) give
the Company any information reasonably requested by the Company relating to such
claim, (ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company, (iii) cooperate with the Company in good
faith in order effectively to contest such claim and (iv) permit the Company to
participate in any proceedings relating to such claim; provided, however, that
the Company shall bear and pay directly all costs and expenses (including
additional income taxes, interest and penalties) incurred in connection with
such contest, and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest or
penalties) imposed as a result of such representation and payment of costs and
expenses.  Without limitation on the foregoing provisions of this
Section 5(c), the Company shall control all proceedings taken in connection with
such contest, and, at its sole discretion, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the
applicable taxing authority in respect of such claim and may, at its sole
discretion, either pay the tax claim on behalf of the Executive and direct the
Executive to sue for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one (1) or
more appellate courts, as the Company shall determine; provided, however, that
(A) if the Company pays the tax claim on behalf of the Executive and directs the
Executive to sue for a refund, the Company shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties) imposed with respect to such payment and (B)
if such contest results in any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due, such extension must be limited
solely to such contested amount.  Furthermore, the Company’s control
of the contest shall be limited to issues with respect to which the 280G
Gross-Up Payment would be payable hereunder, and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.

     

    (d)           If,
after the payment by the Company of any tax claim pursuant to Section 5(c), the
Executive becomes entitled to receive any refund with respect to such claim, the
Executive shall (subject to the Company’s complying with the requirements of
Section 5(c)) promptly pay to the Company the amount of such refund received
(together with any interest paid or credited thereon after taxes applicable
thereto).  If, after the payment by the Company of any tax claim
pursuant to Section 5(c), a determination is made that the Executive shall not
be entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of the 30 day period after such determination, then the
amount the Company paid in respect of such claim shall offset, to the extent
thereof, the amount of 280G Gross-Up Payment required to be paid.

     

    (e)           Notwithstanding
anything to the contrary in this Agreement, (i) in no event shall any 280G
Gross-Up Payments be made by the Company to the Executive under this Section 5
after the end of the Executive Tax Year following the Executive Tax Year in
which the Executive remits the taxes for which such 280G Gross-Up Payment is
required to be made under this Section 5, and (ii) no other payments will be
made by the Company to the Executive under this Section 5 with respect to any
audit or litigation relating to any 280G Gross-Up Payment or Excise Tax or other
taxes after the Executive Tax Year following the Executive Tax Year in which the
taxes that are the subject of the audit or litigation referred to in this
Section 5 are remitted to the taxing authority, or where, as a result of such
audit or litigation, no taxes are remitted, the end of the Executive Tax Year
following the Executive Tax Year in which the audit is completed or there is a
final and nonappealable settlement or other resolution of the
litigation.

     

    SECTION
6.  Section
409A.

     

    (a)           It
is intended that the provisions of this Agreement comply with Section 409A of
the Code, as amended, and the regulations thereunder as in effect from time to
time (collectively, “Section 409A”), and
all provisions of this Agreement shall be construed and interpreted either to
(i) exempt any compensation from the application of Section 409A, or
(ii) comply with the requirements for avoiding taxes or penalties under
Section 409A.

     

    (b)           Neither
the Executive nor any creditor or beneficiary of the Executive shall have the
right to subject any deferred compensation (within the meaning of Section 409A)
payable under this Agreement or under any other plan, policy, arrangement or
agreement of or with the Company or any of its Affiliates (this Agreement and
such other plans, policies, arrangements and agreements, the “Company Plans”) to
any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment.  Except as permitted under Section 409A,
any deferred compensation (within the meaning of Section 409A) payable to or for
the benefit of the Executive under any Company Plan may not be reduced by, or
offset against, any amount owing by the Executive to the Company or any of its
Affiliates.

     

    (c)           If,
at the time of the Executive’s separation from service (within the meaning of
Section 409A), (i) the Executive shall be a specified employee (within the
meaning of Section 409A and using the identification methodology selected by the
Company from time to time) and (ii) the Company shall make a good faith
determination that an amount payable under a Company Plan constitutes deferred
compensation (within the meaning of Section 409A) the payment of which is
required to be delayed pursuant to the six-month delay rule set forth in Section
409A to avoid taxes or penalties under Section 409A, then the Company (or an
Affiliate thereof, as applicable) shall not pay such amount on the otherwise
scheduled payment date but shall instead accumulate such amount and pay it,
without interest, on the first day of the seventh month following such
separation from service.

     

    SECTION
7.  No Mitigation or Offset;
Enforcement of this Agreement. (a)  The Company’s obligation to
make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Executive or others.  In no event shall the Executive be
obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this
Agreement and, except as otherwise expressly provided for in this Agreement,
such amounts shall not be reduced whether or not the Executive obtains other
employment.

     

    (b)  The
Company shall reimburse, upon the Executive’s demand, any and all reasonable
legal fees and expenses that the Executive may incur in good faith prior to the
second anniversary of the expiration of the term of this Agreement as a result
of any contest, dispute or proceeding (regardless of whether formal legal
proceedings are ever commenced and regardless of the outcome thereof and
including all stages of any contest, dispute or proceeding) by the Company, the
Executive or any other Person with respect to the validity or enforceability of,
or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Executive
regarding the amount of any payment owed pursuant to this Agreement), and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any tax
(including Excise Tax) imposed on the Executive as a result of payment by the
Company of such legal fees and expenses.  Notwithstanding anything to
the contrary in this Agreement, (i) any reimbursement for any fees and expenses
under this Section 7 shall be made promptly and no later than the end of the
Executive Tax Year following the Executive Tax Year in which the fees or
expenses are incurred, (ii) the amount of fees and expenses eligible for
reimbursement under this Section 7 during any Executive Tax Year shall not
affect the fees and expenses eligible for reimbursement in another Executive Tax
Year, (iii) no right to reimbursement under this Section 7 shall be subject to
liquidation or exchange for any other payment or benefit, and (iv) no tax gross
up payments shall be made by the Company under this Section 7 after the end of
the Executive Tax Year following the Executive Tax Year in which the related
taxes are remitted.

     

    SECTION
8.  Non-Exclusivity of
Rights.  Except as specifically provided in Section 4(a)(i),
nothing in this Agreement shall prevent or limit the Executive’s continuing or
future participation in any plan, practice, policy or program provided by the
Company or a Subsidiary for which the Executive may qualify, nor shall anything
in this Agreement limit or otherwise affect any rights the Executive may have
under any contract or agreement with the Company or a
Subsidiary.  Vested benefits and other amounts that the Executive is
otherwise entitled to receive under any incentive compensation (including any
equity award agreement), deferred compensation retirement, pension or other
plan, practice, policy or program of, or any contract or agreement with, the
Company or a Subsidiary shall be payable in accordance with the terms of each
such plan, practice, policy, program, contract or agreement, as the case may be,
except as explicitly modified by this Agreement.

     

    SECTION
9.  Withholding.  The
Company may deduct and withhold from any amounts payable under this Agreement
such Federal, state, local, foreign or other taxes as are required to be
withheld pursuant to any applicable law or regulation.

     

    

SECTION
10.  Assignment.  (a)  This
Agreement is personal to the Executive and, without the prior written consent of
the Company, shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution, and any assignment in violation of this
Agreement shall be void.

     

    (b)  Notwithstanding
the foregoing Section 10(a), this Agreement and all rights of the Executive
hereunder shall inure to the benefit of, and be enforceable by, the Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.  If the Executive should die
while any amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive’s devisee, legatee
or other designee or, should there be no such designee, to the Executive’s
estate.

     

    (c)  The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company (a “Successor”) to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would have been required to perform it if no such succession
had taken place.  If there shall be a Successor, (i) the term
“Company” shall mean the Company as hereinbefore defined and any Successor and
any permitted assignee to which this Agreement is assigned and (ii) the term
“Board” shall mean the Board as hereinbefore defined and the board of directors
or equivalent governing body of any Successor and any permitted assignee to
which this Agreement is assigned.

     

    SECTION
11.  Dispute
Resolution.  (a)  Except as otherwise specifically
provided herein, the Executive and the Company each hereby irrevocably submit to
the exclusive jurisdiction of the United States District Court of Delaware (or,
if subject matter jurisdiction in that court is not available, in any state
court located within the city of Wilmington, Delaware) over any dispute arising
out of or relating to this Agreement.  Except as otherwise
specifically provided in this Agreement, the parties undertake not to commence
any suit, action or proceeding arising out of or relating to this Agreement in a
forum other than a forum described in this Section 11(a); provided, however, that nothing
herein shall preclude the Company or the Executive from bringing any suit,
action or proceeding in any other court for the purposes of enforcing the
provisions of this Section 11 or enforcing any judgment obtained by the Company
or the Executive.

     

    (b)  The
agreement of the parties to the forum described in Section 11(a) is independent
of the law that may be applied in any suit, action or proceeding and the parties
agree to such forum even if such forum may under applicable law choose to apply
non-forum law.  The parties hereby waive, to the fullest extent
permitted by applicable law, any objection that they now or hereafter have to
personal jurisdiction or to the laying of venue of any such suit, action or
proceeding brought in an applicable court described in Section 11(a), and the
parties agree that they shall not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such
court.  The parties agree that, to the fullest extent permitted by
applicable law, a final and non-appealable judgment in any suit, action or
proceeding brought in any applicable court described in Section 11(a) shall be
conclusive and binding upon the parties and may be enforced in any other
jurisdiction.

     

    (c)  The
parties hereto irrevocably consent to the service of any and all process in any
suit, action or proceeding arising out of or relating to this Agreement by the
mailing of copies of such process to such party at such party’s address
specified in Section 18.

     

    (d)  Each
party hereto hereby waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any suit, action or
proceeding arising out of or relating to this Agreement.  Each party
hereto (i) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such party would not, in the
event of any suit, action or proceeding, seek to enforce the foregoing waiver
and (ii) acknowledges that it and the other parties hereto have been induced to
enter into this Agreement by, among other things, the mutual waiver and
certifications in this Section 11(d).

     

    SECTION
12.  Default in
Payment.  Any payment not made within ten business days after
it is due in accordance with this Agreement shall thereafter bear interest,
compounded annually, at the prime rate in effect from time to time at Citibank,
N.A., or any successor thereto.  Such interest shall be payable at the
same time as the corresponding payment is payable.

     

    SECTION
13.  GOVERNING
LAW.  THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN THE STATE OF
DELAWARE, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT IN ALL RESPECTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.

     

    SECTION
14.  Amendment; No
Waiver.  No provision of this Agreement may be amended,
modified, waived or discharged except by a written document signed by the
Executive and a duly authorized officer of the Company.  The failure
of a party to insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver of such party’s rights or deprive such
party of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement.  Except as provided in Section 1(t),
no failure or delay by either party in exercising any right or power hereunder
will operate as a waiver thereof, nor will any single or partial exercise of any
such right or power, or any abandonment of any steps to enforce such right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power.  No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party, which are not set forth expressly in this
Agreement.

     

    SECTION
15.  Severability.  If
any term or provision of this Agreement is invalid, illegal or incapable of
being enforced by any applicable law or public policy, all other conditions and
provisions of this Agreement shall nonetheless remain in full force and effect
so long as the economic and legal substance of the transactions contemplated by
this Agreement is not affected in any manner materially adverse to any
party.  Upon any such determination that any term or provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.

     

    SECTION
16.  Entire
Agreement.  This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto, and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and canceled.  None of the parties shall be liable
or bound to any other party in any manner by any representations and warranties
or covenants relating to such subject matter except as specifically set forth
herein.

     

    SECTION
17.  Survival.  The
rights and obligations of the parties under the provisions of this Agreement,
including Sections 5, 7 and 12, shall survive and remain binding and
enforceable, notwithstanding the expiration of the Protection Period or the term
of this Agreement, the termination of the Executive’s employment with the
Company for any reason or any settlement of the financial rights and obligations
arising from the Executive’s employment hereunder, to the extent necessary to
preserve the intended benefits of such provisions.

     

    SECTION
18.  Notices.  All
notices or other communications required or permitted by this Agreement will be
made in writing and all such notices or communications will be deemed to have
been duly given when delivered or (unless otherwise specified) mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:

     

    
      	
               
      

            	
              If
      to the Company:

            	
              First
      Solar, Inc.

            


    

    
      	
               
      

            	
              350
      West Washington Street

            


    

    
      	
               
      

            	
              Suite
      600

            


    

    
      	
               
      

            	
              Tempe,
      AZ  85281

            


    

    
      	
               
      

            	
              Attention:
      Corporate Secretary

            


    

     

    
      	
               
      

            	
              If
      to the Executive:

            	
              To
      the Executive’s then current address on file with the
    Company

            


    

     

    or to
such other address as any party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.

     

    SECTION
19.  Headings and
References.  The headings of this Agreement are inserted for
convenience only and neither constitute a part of this Agreement nor affect in
any way the meaning or interpretation of this Agreement.  When a
reference in this Agreement is made to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated.

     

    SECTION
20.  Counterparts.  This
Agreement may be executed in one or more counterparts (including via facsimile),
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.

     

    SECTION
21.  Interpretation.  For
purposes of this Agreement, the words “include” and “including”, and variations
thereof, shall not be deemed to be terms of limitation but rather shall be
deemed to be followed by the words “without limitation”.  The term
“or” is not exclusive.  The word “extent” in the phrase “to the
extent” shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply “if”.

     

    SECTION
22.  Time of the
Essence.  The parties hereto acknowledge and agree that time is
of the essence in the performance of the obligations of this Agreement and that
the parties shall strictly adhere to any timelines herein.

     

    IN
WITNESS WHEREOF, this Agreement has been executed by the parties as of the date
first written above.

     

    


    
      	
              FIRST
      SOLAR, INC.,

            
	
              By:                  

            
	 
      	 
      /s/ Michael J. Ahearn
	 
      	
              Name:  Michael
      J. Ahearn

              Title:  Chief
      Executive Officer

                              and
      Chairman

            
	 
      	 
      


    

    


    


    
      	
              EXECUTIVE,

            
	 
      	
              /s/
      David Eaglesham

            
	 
      	
              David
      Eaglesham

            


    

    



    
      
        
          Eaglesham
Change in Control Agreement(rev.
11/18/08)

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    


    


    NON-COMPETITION AND
NON-SOLICITATION AGREEMENT

    


    In consideration of Employee’s (as
defined below) ongoing at-will employment with Employer (as defined below) or
one of its subsidiary companies, the compensation and benefits provided to me
including those set forth in a separate Employment Agreement, Confidentiality
and Intellectual Property Agreement (the “Confidentiality Agreement”), Change in
Control Agreement (the “Change in Control Agreement”) and Employer’s agreement
to provide Employee with access to Employer’s confidential information,
intellectual property and trade secrets, access to its customers and other
promises made below, Employee enters into the following non-competition and
non-solicitation agreement:

    


    This
Non-Competition and Non-Solicitation Agreement (“Agreement”) is effective by and
between David Eaglesham
(“Employee”) and First Solar, Inc. (“Employer”) as of December 20,
2006.

    


    Whereas,
Employee desires to be employed by Employer and Employer has agreed to employ
Employee in the position of Chief Financial Officer, or such other position as
Employer may from time to time determine;

    


    Whereas,
because of the nature of Employee’s duties, in the performance of such duties,
Employee will have access to and will necessarily utilize sensitive, secret and
proprietary data and information, the value of which derives from its secrecy
from Employer’s competitors, which, like Employer, sell products and services
throughout the world;

    


    Whereas,
Employee and Employer acknowledge and agree that Employee’s conduct in the
manner prohibited by this Agreement during, or for the period specified in this
Agreement following the termination of Employee’s employment with Employer,
would jeopardize Employer’s Confidential Information (as defined in the
Confidentiality Agreement) and the goodwill the Employer has developed and
generated over a period of years, and would cause Employer to experience unfair
competition and immediate, irreparable harm; and

    


    Whereas,
in consideration of Employer’s hiring Employee, Employee therefore has agreed to
the terms of This Agreement, the Employment Agreement, the Confidentiality
Agreement, and the Change in Control Agreement.

    


    Therefore,
Employee and Employer hereby agree as follows (THE FOLLOWING ARE IMPORTANT
RESTRICTIONS TO WHICH EMPLOYEE AGREES IN ORDER TO INDUCE EMPLOYER TO RETAIN
EMPLOYEE AND WHICH, ONCE EMPLOYEE SIGNS THIS AGREEMENT, ARE BINDING ON
EMPLOYEE.  BY SIGNING THIS AGREEMENT, EMPLOYEE SIGNIFIES THAT EMPLOYEE
HAS READ THESE RESTRICTIONS CAREFULLY BEFORE SIGNING THIS AGREEMENT, UNDERSTANDS
THE AGREEMENT’S TERMS, AND ASSENTS TO ABIDE BY THESE
RESTRICTIONS.):

    


    1.           Nature
and Period of Restriction. At all times during
Employee’s employment and for a period of twelve months after the termination of
employment (for any reason, including discharge or resignation) with Employer
(the “Restricted Period”), Employee agrees as follows:

    


    1.1.           Employee
agrees not to engage or assist, in any way or in any capacity, anywhere in the
Territory (as defined below), either directly or indirectly, (a) in the business
of the development, sale, marketing, manufacture or installation that would be
in direct competition with of any type of product sold, developed, marketed,
manufactured or installed by Employer during Employee’s employment with
Employer, including photovoltaic modules, or (b) in any other activity in direct
competition or that would be in direct competition with the business of Employer
as that business exists and is conducted during the Employee’s employment with
Employer.  In addition and in particular, Employee agrees not to sell,
market, provide or distribute, or endeavor to sell, market, provide or
distribute, in any way, directly or indirectly, on behalf of Employee or any
other person or entity, any products or services competitive with those of
Employer to any person or entity which is or was an actual or prospective
customer of Employer at any time during Employee’s employment by
Employer.

    


    1.2.           “Territory”
for purposes of this Agreement means North America.

    


    1.3.           Employee
agrees not to solicit, recruit, hire, employ or attempt to hire or employ, or
assist any other person or entity in the recruitment or hiring of, any person
who is an employee of Employer, and agrees not to otherwise urge, induce or seek
to induce any person to terminate his or her employment with
Employer.

    


    1.4.           The
parties understand and agree that the restrictions set forth in the paragraphs
in this Section 1 also extend to Employee’s recommending or directing any such
actual or prospective customers to any other competitive concerns, or assisting
in any way any competitive concerns in soliciting or providing products or
services to such customers, whether or not Employee personally provides any
products or services directly to such customers.  For purposes of this
Agreement, a prospective customer is one that Employer solicited or with which
Employer otherwise sought to engage in a business transaction during the time
that Employee is or was employed by Employer.

    


    1.5.           Employee
and Employer acknowledge and agree that Employer has expended substantial
amounts of time, money and effort to develop business strategies, customer
relationships, employee relationships, trade secrets and goodwill and to build
an effective organization and that Employer has a legitimate business interest
and right in protecting those assets as well as any similar assets that Employer
may develop or obtain.  Employee and Employer acknowledge that
Employer is entitled to protect and preserve the going concern value of Employer
and its business and trade secrets to the extent permitted by
law.  Employee acknowledges and agrees the restrictions imposed upon
Employee under this Agreement are reasonable and necessary for the protection of
Employer’s legitimate interests, including Employer’s Confidential Information,
intellectual property, trade secrets and goodwill.  Employee and
Employer acknowledge that Employer is engaged in a highly competitive business,
that Employee is expected to serve a key role with Employer, that Employee will
have access to Employer’s Confidential Information, that Employer’s business and
customers and prospective customers are located around the world, and that
Employee could compete with Employer from virtually any location in the
world.  Employee acknowledges and agrees that the restrictions set
forth in this Agreement do not impose any substantial hardship on Employee and
that Employee will reasonably be able to earn a livelihood without violating any
provision of this Agreement.  Employee acknowledges and agrees that
part of the consideration for the restrictions in this Section 1 consists of
Employer’s agreement to make severance payments as set forth in the separate
Employment Agreement between Employer and Employee.

    


    1.6.           Employee
agrees to comply with each of the restrictive covenants contained in this
Agreement in accordance with its terms, and Employee shall not, and hereby
agrees to waive and release any right or claim to, challenge the reasonableness,
validity or enforceability of any of the restrictive covenants contained in this
Agreement.

    


    2.           Notice by
Employee to Employer.  During the Restricted Period, prior to
engaging in any activities prohibited by the above paragraphs, or prior to
accepting any position or employment which would be so prohibited, Employee
agrees to provide at least thirty (30) days’ prior written notice (by certified
mail) to Employer in accordance with Section 6, stating the description of
the activities or position sought to be undertaken by Employee, and to provide
such further information as Employer may reasonably request in connection
therewith (including the location where the services would be performed and the
present or former customers or employees of Employer anticipated to receive such
products or services).  Employer shall be free to object or not to
object in its unfettered discretion, and the parties agree that any actions
taken or not taken by Employer with respect to any other employees or former
employees shall have no bearing whatsoever on Employer’s decision or on any
questions regarding the enforceability of any of these restraints with respect
to Employee.

    


    3.           Notice to
Subsequent Employer.  Prior to accepting employment with any
other person or entity during the Restricted Period, Employee shall provide such
prospective employer with written notice of the provisions of this Agreement,
with a copy of such notice delivered promptly to Employer in accordance with
Section 6.

    


    4.           Extension
of Non-Competition Period in the Event of Breach. It is agreed that the
Restricted Period shall be extended by an amount of time equal to the amount of
time during which Employee is in breach of any of the restrictive covenants set
forth above.

    


    5.           Judicial
Reformation to Render Agreement Enforceable. If it is determined by a
court of competent jurisdiction that any of the restrictions or language in this
Agreement are for any reason invalid or unenforceable, the parties desire and
agree that the court revise any such restrictions or language, including
reducing any time or geographic area, so as to render them valid and enforceable
to the fullest extent allowed by law.  If any restriction or language
in this Agreement is for any reason invalid or unenforceable and cannot by law
be revised so as to render it valid and enforceable, then the parties desire and
agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by
law.  Employer and Employee agree that the invalidity or
unenforceability of any provision of this Agreement shall not affect the
remainder of this Agreement.

    


    6.           Notice.  All
documents, notices or other communications that are required or permitted to be
delivered or given under this Agreement shall be in writing and shall be deemed
to be duly delivered or given when received.

    


    


    
      	
              If
      to Employer:

            	
              First
      Solar, Inc.

              4050
      East Cotton Center Boulevard

              Building
      6, Suite 68

              Phoenix,
      Arizona  85040

              Attention:  Chief
      Executive Officer and General Counsel

              Fax:  (602)
      414-9400

               

            
	
              If
      to Employee:

            	
              
                __________________

                __________________

                __________________

                Fax:
      ________________

                 

              

            


    

    


    7.           Enforcement. Except as expressly
stated herein, the covenants contained in this Agreement shall be construed as
independent of any other provision or covenants of any other agreement between
Employer and Employee, and the existence of any claim or cause of action of
Employee against Employer, whether predicated on this Agreement or otherwise, or
the actions of Employer with respect to enforcement of similar restrictions as
to other employees, shall not constitute a defense to the enforcement by
Employer of such covenants.  Employee acknowledges and agrees that
Employer has invested great time, effort and expense in its business and
reputation, that the products and information of the Employer are unique and
valuable, and that the services performed by Employee are unique and
extraordinary, and Employee agrees that the Employer will suffer immediate,
irreparable harm and shall be entitled, upon a breach or a threatened breach of
this Agreement, to emergency, preliminary, and permanent injunctive relief
against such activities, without having to post any bond or other security, and
in addition to any other remedies available to Employer at law or
equity.  Any specific right or remedy set forth in this Agreement,
legal, equitable or otherwise, shall not be exclusive but shall be cumulative
upon all other rights and remedies allowed or by law, including the recovery of
money damages. The failure of Employer to enforce any of the provisions of this
Agreement, or the provisions of any agreement with any other Employee, shall not
constitute a waiver or limit any of Employer’s rights.

    


    8.           At-Will
Employment; Termination. This Agreement does not
alter the at-will nature of Employee’s employment by Employer, and Employee’s
employment may be terminated by either party, with or without notice and with or
without cause, at any time.  In addition to the foregoing provisions
of this Agreement, upon Employee’s termination, Employee shall cease all
identification of Employee with Employer and/or the business, products or
services of Employer, and the use of Employer’s name, trademarks, trade name or
fictitious name.  All provisions, obligations, and restrictions in
this Agreement shall survive termination of Employee’s employment with
Employer.

    


    9.           Choice of
Law, Choice of Forum.  This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, without reference to the principles of conflicts of
laws.  Any judicial action commenced relating in any way to this
Agreement including the enforcement, interpretation, or performance of this
Agreement, shall be commenced and maintained in a court of competent
jurisdiction located in Maricopa County, Arizona.  In any action to
enforce this Agreement, the prevailing party shall be entitled to recover its
litigation costs, including its attorneys’ fees.  The parties hereby
waive and relinquish any right to a jury trial and agree that any dispute shall
be heard and resolved by a court and without a jury.  The parties
further agree that the dispute resolution, including any discovery, shall be
accelerated and expedited to the extent possible.  Each party’s
agreements in this Section 9 are made in consideration of the other party’s
agreements in this Section 9, as well as in other portions of this
Agreement.

    


    
      	
               
      

            	
              10.

            	
              Entire
      Agreement, Modification and
Assignment.

            


    

    


    10.1.           This
Agreement, the Employment Agreement, the Confidentiality Agreement, and the
Change in Control Agreement comprise the entire agreement relating to the
subject matter hereof between the parties and supersedes, cancels, and annuls
any and all prior agreements or understandings between the parties concerning
the subject matter of the Agreement.

    


    10.2.           This
Agreement may not be modified orally but may only be modified in a writing
executed by both Employer and Employee.

    


    10.3.           This
Agreement shall inure to the benefit of Employer, its successors and assigns,
and may be assigned by Employer.  Employee’s rights and obligations
under this Agreement may not be assigned by Employee.

    


    
      	
               
      

            	
              11.

            	
              Construction.

            	
               As used in this
      Agreement, words such as “herein,”
  “hereinafter,”

            


    

    “hereby”
and “hereunder,” and the words of like import refer to this Agreement, unless
the context requires otherwise.  The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.


    
      
        
          Eaglesham
Noncompetition/Nonsoliciatation Agreement(eff. 12/20/06)

        

         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties have executed this Agreement, effective as of the day and year first
written above.

    


    EMPLOYER:                                                                           EMPLOYEE:

    


    First
Solar, Inc.

    


    By:           /s/ Chip
Hambro                                                                 
/s/ David
Eaglesham

    David Eaglesham

    Its:           Chief Operating
Officer                                                      

    


    Printed
Name:    Chip
Hambro                                           

    


    


    


    



    
      
        
           

          Eaglesham
Noncompetition/Nonsolicitation Agreement(eff. 12/20/06)

        

         


      

      
         


        
          

        

      

      
         


      

    


    First
Solar, Inc.

    


    Confidentiality
and Intellectual Property Agreement

    


    


    
      	
              Employee:

            	
              David
      Eaglesham

               

            


    

    


    
      	
              Place
      of Signing:

            	
              Perrysburg,
      Ohio

               

              Date:
      December 20, 2006

            


    

    


    


    In
consideration of my ongoing at-will employment with First Solar, Inc. or one of
its subsidiary companies (collectively, the “Company”), for the compensation and
benefits provided to me, and for the Company’s agreement to provide me with
access to experience, knowledge, and Confidential Information (as defined below)
gained by me in the course of such employment relating to the methods, plans,
and operations of the Company and its suppliers, clients, and customers I enter
into the following Confidentiality and Intellectual Property Agreement (the
“Agreement”) and agree as follows:

     

    


    1.           Except
for any items I have identified and described in a writing given to the Company
and acknowledged in writing by an officer of the Company on or before the date
of this Agreement, which items are specifically excluded from the operation of
the applicable provisions hereof, I do not own, nor have any interest in, any
patents, patent applications, inventions, improvements, methods, discoveries,
designs, trade secrets, copyrights, and/or other patentable or proprietary
rights.

    


    2.           I
will promptly and fully disclose to the Company all developments, inventions,
ideas, methods, discoveries, designs, and innovations (collectively referred to
herein as "Developments"), whether patentable or not, relating wholly or in part
to my work for the Company or resulting wholly or in part from my use of the
Company's materials or facilities, which I may make or conceive, whether or not
during working hours, whether or not using the Company’s materials, whether or
not on the Company facilities, alone or with others, at any time during my
employment or within ninety (90) days after termination thereof, and I agree
that all such Developments shall be the exclusive property of the Company, and
that I shall have no proprietary or shop rights in connection
therewith.

    


    3.           I
will assign, and do hereby assign, to the Company or the Company's designee, my
entire right, title and interest in and to all such Developments including all
trademarks, copyrights, moral rights and mask work rights in or relating to such
Developments, and any patent applications filed and patents granted thereon
including those in foreign countries; and I agree, both during my employment by
the Company and thereafter, to execute any patent or other papers deemed
necessary or appropriate by the Company for filing with the United States or any
other country covering such Developments as well as any papers that the Company
may consider necessary or helpful in obtaining or maintaining such patents
during the prosecution of patent applications thereon or during the conduct of
any interference, litigation, or any other matter in connection therewith, and
to transfer to the Company any such patents that may be issued in my
name.  If, for some reason, I am unable to execute such patent or
other papers, I hereby irrevocably designate and appoint the Company and its
designees and their duly authorized officers and agents, as the case may be, as
my agent and attorney in fact to act for and in my behalf and stead to execute
any documents and to do all other lawfully permitted acts in connection with the
foregoing.  I agree to cooperate with and assist the Company as
requested by the Company to provide documentation reflecting the Company’s sole
and complete ownership of the Developments.  All expenses incident to
the filing of such applications, the prosecution thereof and the conduct of any
such interference, litigation, or other matter will be borne by the
Company.  This Section 3 shall survive the termination of this
Agreement.

    


    4.           Subject
to Section 5 below, I will not, either during my employment with the
Company or at any time thereafter, use, disclose or authorize, or assist anyone
else to disclose or use or make known for anyone’s benefit, any information,
knowledge or data of the Company or any supplier, client, or customer of the
Company in any way acquired by me during or as a result of my employment with
the Company, whether before or after the date of this Agreement, (hereinafter
the "Confidential Information").  Such Confidential Information shall
include the following:

    


    
      	
              (a)

            	
              Information
      of a business nature including financial information and information about
      sales, marketing, purchasing, prices, costs, suppliers and
      customers;

            


    

    


    
      	
              (b)

            	
              Information
      pertaining to future developments  including research and
      development, new product ideas and developments, strategic plans, and
      future marketing and merchandising plans and
  ideas;

            


    

    


    
      	
              (c)

            	
              Information
      and material that relate to the Company's manufacturing methods, machines,
      articles of manufacture, compositions, inventions, engineering services,
      technological developments, "know-how", purchasing, accounting,
      merchandising and licensing;

            


    

    


    
      	
              (d)

            	
              Trade
      secrets of the Company, including information and material with respect to
      the design, construction, capacity or method of operation of the Company's
      equipment or products and information regarding the Company’s customers
      and sales or marketing efforts and
strategies;

            


    

    


    
      	
              (e)

            	
              Software
      in various stages of development (source code, object code, documentation,
      diagrams, flow charts), designs, drawings, specifications, models, data
      and customer information; and

            


    

    


    
      	
              (f)

            	
              Any
      information of the type described above that the Company obtained from
      another party and that the Company treats as proprietary or designates as
      confidential, whether or not owned or developed by the
      Company.

            


    

    


    5.           It
is understood and agreed that the term “Confidential Information” shall not
include information which is generally available to the public, other than
through any act or omission on the part of Employee in breach of this
Agreement.

    


    6.           I
acknowledge (a) that such Confidential Information derives its value to the
Company from the fact that it is maintained as confidential and secret and is
not readily available to the general public or the Company’s competitors; (b)
that the Company undertakes great effort and sufficient measures to maintain the
confidentiality and secrecy of such information; and (c) that such Confidential
Information is protected and covered by this Agreement regardless of whether or
not such Confidential Information is a “trade secret” under applicable
law.  I further acknowledge and agree that the obligations and
restrictions herein are reasonable and necessary to protect the Company’s
legitimate business interests, and that this Agreement does not impose an
unreasonable or undue burden on me and will not prevent me from earning a
livelihood subsequent to the termination of my employment.  I agree to
comply with each of the restrictive covenants contained in this Agreement in
accordance with its terms, and will not, and I hereby agree to waive and release
any right or claim to, challenge the reasonableness, validity or enforceability
of any of the restrictive covenants contained in this Agreement.

    


    7.           I
will deliver to the Company promptly upon request, and, in any event, on the
date of termination of my employment, all documents, copies thereof and other
materials in my possession, including any notes or memoranda prepared by me,
pertaining to the business of the Company, whether or not including any
Confidential Information, and thereafter will promptly deliver to the Company
any documents and copies thereof pertaining to the business of the Company that
come into my possession.

    


    8.           I
represent that I have no agreements with or obligations to others with respect
to any innovations, developments, or information that could conflict with any of
the foregoing.

    


    9.           The
invalidity or unenforceability of any provision of this Agreement, whether in
whole or in part, shall not in any way affect the validity and/or enforceability
of any of the other provisions of this Agreement.  Any invalid or
unenforceable provision or portion thereof shall be deemed severable to the
extent of any such invalidity or unenforceability.  The restrictions
contained in this Agreement are reasonable for the purpose of preserving for the
Company and its affiliates the proprietary rights, intangible business value and
Confidential Information of the Company and its affiliates.  If it is
determined by a court of competent jurisdiction that any of the restrictions or
language in this Agreement is for any reason invalid or unenforceable, the
parties desire and agree that the court revise any such restrictions or language
so as to render it valid and enforceable to the fullest extent allowed by
law.  If any restriction or language in this Agreement is for any
reason invalid or unenforceable and cannot by law be revised so as to render it
valid and enforceable, then the parties desire and agree that the court strike
only the invalid and unenforceable language and enforce the balance of this
Agreement to the fullest extent allowed by law.

    


    10.           I
agree that any breach or threatened breach by me of any of the provisions in
this Agreement cannot be remedied solely by the recovery of
damages.  I expressly agree that upon a threatened breach or violation
of any of such provisions, the Company, in addition to all other remedies, shall
be entitled as a matter of right, and without posting a bond or other security,
to emergency, preliminary, and permanent injunctive relief in any court of
competent jurisdiction.  Nothing herein, however, shall be construed
as prohibiting the Company from pursuing, in concert with an injunction or
otherwise, any other remedies available at law or in equity for such breach or
threatened breach, including the recovery of damages.

    


    11.           This
Agreement is made in consideration of my continued employment by the
Company.  I understand that the Company is under no obligation to
employ me for any duration and that my employment with the Company is terminable
at the will of the Company or at my will at any time and for any reason and
without notice.

    


    12.           Upon
termination of my employment with the Company, I shall, if requested by the
Company, reaffirm my recognition of the importance of maintaining the
confidentiality of the Company's Confidential Information and reaffirm all of my
obligations set forth herein.  The provisions, obligations, and
restrictions in this Agreement shall survive the termination of my employment,
and will be binding on me whether or not the Company requests a
re-affirmation.

    


    13.           This
Agreement, my Employment Agreement with the Company (the “Employment
Agreement”), the Noncompetition Agreement (as defined in the Employment
Agreement), and the Change in Control Agreement (as defined in the Employment
Agreement)” represent the full and complete understanding between me and the
Company with respect to the subject matter hereof and supersedes all prior
representations and understandings, whether oral or written regarding such
subject matter.  This Agreement may not be changed, modified,
released, discharged, abandoned or otherwise terminated, in whole or in part,
except by an instrument in writing signed by both the Company and
Employee.  My obligations under this Agreement shall be binding upon
my heirs, executors, administrators, or other legal representatives or assigns,
and this Agreement shall inure to the benefit of the Company, its successors,
and assigns.

    


    14.           This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware without reference to principles of conflict of
laws.  Any judicial action commenced relating in any way to this
Agreement including the enforcement, interpretation, or performance of this
Agreement, shall be commenced and maintained in a court of competent
jurisdiction located in Maricopa County, Arizona.  In any action to
enforce this Agreement, the prevailing party shall be entitled to recover its
litigation costs, including its attorneys’ fees.  The parties hereby
waive and relinquish any right to a jury trial and agree that any dispute shall
be heard and resolved by a court and without a jury.  The parties
further agree that the dispute resolution, including any discovery, shall be
accelerated and expedited to the extent possible.  Each party’s
agreements in this Section 14 are made in consideration of the other party’s
agreements in this Section 14, as well as in other portions of this
Agreement.

    


    15.           As
used in this Agreement, words such as “herein,” “hereinafter,” “hereby” and
“hereunder,” and the words of like import refer to this Agreement, unless the
context requires otherwise.  The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.

    


     

    
      	
              Signed:

            	
              /s/ David Eaglesham

              David
      Eaglesham

               

            
	
              Agreed
      to by First Solar, Inc.

            
	 
      	
               

              By:  /s/ Chip Hambro

                      Chip
      Hambro

              Its:
      Chief Operating Officer

               

            
	 
      	 
      


    

    


    



    
      
        
          Eaglesham
Intellectual Property/Confidentiality Agreement(eff. 12/20/06)