exhibit108.htm


    Exhibit 10.8

      


      SUNPOWER
CORPORATION

       

      INDEMNIFICATION
AGREEMENT

       

      This
Indemnification Agreement (this “Agreement”) is entered into as of __________
___, 20__ (the “Effective Date”), by and between SunPower Corporation, a
Delaware corporation (the “Company”), and ___________________
(“Indemnitee”).

       

      RECITALS

       

      A.
Indemnitee is either a member of the board of directors of the Company (the
“Board of Directors”) or an officer of the Company, or both, and in such
capacity or capacities, or otherwise as an Agent (as hereinafter defined) of the
Company, is performing a valuable service for the Company.

       

      B.
Indemnitee is willing to serve, continue to serve and to take on additional
service for or on behalf of the Company on the condition that he or she be
indemnified as herein provided.

       

      C. It is
intended that Indemnitee shall be paid promptly by the Company all amounts
necessary to effectuate in full the indemnity provided herein.

       

      NOW,
THEREFORE, in consideration of the premises and the covenants in this Agreement,
and of Indemnitee continuing to serve the Company as an Agent and intending to
be legally bound hereby, the parties hereto agree as follows:

       

      1. Services by
Indemnitee. Indemnitee agrees to serve (a) as a director or an officer of
the Company, or both, so long as Indemnitee is duly appointed or elected and
qualified in accordance with the applicable provisions of the Certificate of
Incorporation and bylaws of the Company, and until such time as Indemnitee
resigns or fails to stand for election or is removed from Indemnitee’s position,
or (b) as an Agent of the Company. Indemnitee may from time to time also perform
other services at the request or for the convenience of, or otherwise
benefiting, the Company. Indemnitee may at any time and for any reason resign or
be removed from such position (subject to any other contractual obligation or
other obligation imposed by operation of law), in which event the Company shall
have no obligation under this Agreement to continue Indemnitee in any such
position.

       

      2. Indemnification.
Subject to the limitations set forth herein and in Section 7 hereof, the Company
hereby agrees to indemnify Indemnitee as follows:

       

      (a)
Except as otherwise specifically provided herein, the Company shall, with
respect to any Proceeding (as hereinafter defined) associated with Indemnitee’s
being an Agent of the Company, indemnify Indemnitee to the fullest extent
permitted by applicable law and the Certificate of Incorporation of the Company
in effect on the date hereof or as such law or Certificate of Incorporation may
from time to time be amended (but, in the case of any such amendment, only to
the extent such amendment permits the Company to provide broader indemnification
rights than the law or Certificate of Incorporation permitted the Company to
provide before such amendment).

      


      (b) The
Company shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed Proceeding
(other than an action by or in the right of the Company) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Company,
or any subsidiary of the Company, or by reason of the fact that Indemnitee is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against Expenses (as hereinafter defined) or Liabilities (as
hereinafter defined), actually and reasonably incurred by Indemnitee in
connection with such Proceeding if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe Indemnitee’s conduct was
unlawful.

      
        
          
          

        

        
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      (c) The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed Proceeding
by or in the right of the Company or any subsidiary of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or was a
director, officer, employee or agent of the Company, or any subsidiary of the
Company, or by reason of the fact that Indemnitee is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
Expenses and, to the fullest extent permitted by law, Liabilities if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, except that no indemnification
shall be made in respect of any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery of the State of Delaware or such other court shall
deem proper.

      


      (d) The
right to indemnification conferred herein and in the Certificate of
Incorporation shall be presumed to have been relied upon by Indemnitee in
serving or continuing to serve the Company as an Agent and shall be enforceable
as a contract right.

       

      3. Advancement of
Expenses. All reasonable Expenses incurred by or on behalf of Indemnitee
(including costs of enforcement of this Agreement) shall be advanced from time
to time by the Company to Indemnitee within twenty (20) days after the receipt
by the Company of a written request for an advance of Expenses, whether prior to
or after final disposition of a Proceeding (except to the extent that there has
been a Final Adverse Determination (as hereinafter defined) that Indemnitee is
not entitled to be indemnified for such Expenses), including, without
limitation, any Proceeding brought by or in the right of the Company. The
written request for an advancement of any and all Expenses under this paragraph
shall contain reasonable detail of the Expenses incurred by Indemnitee. In the
event that such written request shall be accompanied by an affidavit of counsel
to Indemnitee to the effect that such counsel has reviewed such Expenses and
that such Expenses are reasonable in such counsel’s view, then such expenses
shall be deemed reasonable in the absence of clear and convincing evidence to
the contrary. By execution of this Agreement, Indemnitee shall be deemed to have
made whatever undertaking as may be required by law at the time of any
advancement of Expenses with respect to repayment to the Company of such
Expenses. In the event that the Company shall breach its obligation to advance
Expenses under this Section 3, the parties hereto agree that Indemnitee’s
remedies available at law would not be adequate and that Indemnitee would be
entitled to specific performance.

       

      4. Surety
Bond.

       

      (a) In
order to secure the obligations of the Company to indemnify and advance Expenses
to Indemnitee pursuant to this Agreement, the Company shall obtain at the time
of any Change in Control (as hereinafter defined) a surety bond (the “Bond”).
The Bond shall be in an appropriate amount not less than one million dollars
($1,000,000), shall be issued by a commercial insurance company or other
financial institution headquartered in the United States

       having
assets in excess of $10 billion and capital according to its most recent
published reports equal to or greater than the then applicable minimum capital
standards promulgated by such entity’s primary federal regulator and shall
contain terms and conditions reasonably acceptable to Indemnitee. The Bond shall
provide that Indemnitee may from time to time file a claim for payment under the
Bond, upon written certification by Indemnitee to the issuer of the Bond that
(i) Indemnitee has made written request upon the Company for an amount not less
than the amount Indemnitee is drawing under the Bond and that the Company has
failed or refused to provide Indemnitee with such amount in full within thirty
(30) days after receipt of the request, and (ii) Indemnitee believes that he or
she is entitled under the terms of this Agreement to the amount that Indemnitee
is drawing upon under the Bond. The issuance of the Bond shall not in any way
diminish the Company’s obligation to indemnify Indemnitee against Expenses and
Liabilities to the full extent required by this Agreement.

       

      (b) Once
the Company has obtained the Bond, the Company shall maintain and renew the Bond
or a substitute Bond meeting the criteria of Section 4(a) during the term of
this Agreement so that the Bond shall have an initial term of five (5) years, be
renewed for successive five-year terms, and always have at least one (1) year of
its term remaining.

      
        
          
          

        

        
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      5. Presumptions and Effect of
Certain Proceedings. Upon making a request for indemnification,
Indemnitee shall be presumed to be entitled to indemnification under this
Agreement and the Company shall have the burden of proof to overcome that
presumption in reaching any contrary determination. The termination of any
Proceeding by judgment, order, settlement, arbitration award or conviction, or
upon a plea of nolo contendere or its equivalent shall not affect this
presumption or, except as determined by a judgment or other final adjudication
adverse to Indemnitee, establish a presumption with regard to any factual matter
relevant to determining Indemnitee’s rights to indemnification hereunder. If the
person or persons so empowered to make a determination pursuant to Section 6
hereof shall have failed to make the requested determination within thirty (30)
days after any judgment, order, settlement, dismissal, arbitration award,
conviction, acceptance of a plea of nolo contendere or its equivalent, or other
disposition or partial disposition of any Proceeding or any other event that
could enable the Company to determine Indemnitee’s entitlement to
indemnification, the requisite determination that Indemnitee is entitled to
indemnification shall be deemed to have been made.

       

      6. Procedure for Determination
of Entitlement to Indemnification.

       

      (a)
Whenever Indemnitee believes that Indemnitee is entitled to indemnification
pursuant to this Agreement, Indemnitee shall submit a written request for
indemnification to the Company. Any request for indemnification shall include
sufficient documentation or information reasonably available to Indemnitee for
the determination of entitlement to indemnification. In any event, Indemnitee
shall submit Indemnitee’s claim for indemnification within a reasonable time,
not to exceed five (5) years after any judgment, order, settlement, dismissal,
arbitration award, conviction, acceptance of a plea of nolo contendere or its
equivalent, or final determination, whichever is the later date for which
Indemnitee requests indemnification. The Secretary or other appropriate officer
shall, promptly upon receipt of Indemnitee’s request for indemnification, advise
the Board of Directors in writing that Indemnitee has made such request.
Determination of Indemnitee’s entitlement to indemnification and, if so
entitled, full payment of Indemnitee’s claim for indemnification shall be made
not later than thirty (30) days after the Company’s receipt of Indemnitee’s
written request for such indemnification, provided that any request for
indemnification for Liabilities, other than amounts paid in settlement, shall
have been made after a determination thereof in a Proceeding.

       

      (b) The
Company shall be entitled to select the forum in which Indemnitee’s entitlement
to indemnification will be heard; provided, however, that if there is a Change
in Control of the Company, Independent Legal Counsel (as hereinafter defined)
shall determine whether Indemnitee is entitled to indemnification. The forum
shall be any one of the following:

       

      (i) a
majority vote of Disinterested Directors (as hereinafter defined), even though
less than a quorum;

       

      (ii) by a
committee of Disinterested Directors designated by majority vote of the
Disinterested Directors, even though less than a quorum; or

       

      (iii)
Independent Legal Counsel, whose determination shall be made in a written
opinion.

       

      7. Specific Limitations on
Indemnification. Notwithstanding anything in this Agreement to the
contrary, the Company shall not be obligated under this Agreement to make any
payment to Indemnitee with respect to any Proceeding:

       

      (a) To
the extent that payment is actually made to Indemnitee under any insurance
policy, or is made to Indemnitee by the Company or an affiliate otherwise than
pursuant to this Agreement. Notwithstanding the availability of such insurance,
Indemnitee also may claim indemnification from the Company pursuant to this
Agreement by assigning to the Company any claims under such insurance to the
extent Indemnitee is paid by the Company;

       

      (b)
Provided there has been no Change in Control, for Liabilities in connection with
Proceedings settled without the Company’s consent, which consent, however, shall
not be unreasonably withheld;

       

      (c) For
an accounting of profits made from the purchase or sale by Indemnitee of
securities of the Company within the meaning of Section 16(b) of the Securities
Exchange Act of  1934, as amended (the “Exchange Act”), or similar
provisions of any state statutory or common law;

      
        
          
          

        

        
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      (d) To
the extent it would be otherwise prohibited by law, if so established by a
judgment or other final adjudication adverse to Indemnitee; or

      


      (e) In
connection with a Proceeding commenced by Indemnitee (other than a Proceeding
commenced by Indemnitee to enforce Indemnitee’s rights under this Agreement)
unless the commencement of such Proceeding was authorized by the Board of
Directors.

       

      8. Fees and Expenses of
Independent Legal Counsel. The Company agrees to pay the reasonable fees
and expenses of Independent Legal Counsel should such Independent Legal Counsel
be retained to make a determination of Indemnitee’s entitlement to
indemnification pursuant to Section 6(b) of this Agreement, and to fully
indemnify such Independent Legal Counsel against any and all expenses and losses
incurred by it arising out of or relating to this Agreement or its engagement
pursuant hereto.

       

      9. Remedies of
Indemnitee.

       

      (a) In
the event that (i) a determination pursuant to Section 6 hereof is made that
Indemnitee is not entitled to indemnification, (ii) advances of Expenses are not
made pursuant to this Agreement, (iii) payment has not been timely made
following a determination of entitlement to indemnification pursuant to this
Agreement or (iv) Indemnitee otherwise seeks enforcement of this Agreement,
Indemnitee shall be entitled to a final adjudication in the Court of Chancery of
the State of Delaware of the remedy sought. Alternatively, unless court approval
is required by law for the indemnification sought by Indemnitee, Indemnitee at
Indemnitee’s option may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the commercial arbitration rules of the American
Arbitration Association now in effect, which award is to be made within thirty
(30) days following the filing of the demand for arbitration. The Company shall
not oppose Indemnitee’s right to seek any such adjudication or arbitration
award. In any such proceeding or arbitration, Indemnitee shall be presumed to be
entitled to indemnification and advancement of Expenses under this Agreement and
the Company shall have the burden of proof to overcome that
presumption.

       

      (b) In
the event that a determination that Indemnitee is not entitled to
indemnification, in whole or in part, has been made pursuant to Section 6
hereof, the decision in the judicial proceeding or arbitration provided in
paragraph (a) of this Section 9 shall be made de novo and Indemnitee shall
not be prejudiced by reason of a determination that Indemnitee is not entitled
to indemnification.

       

      (c) If a
determination that Indemnitee is entitled to indemnification has been made
pursuant to Section 6 hereof, or is deemed to have been made pursuant to Section
5 hereof or otherwise pursuant to the terms of this Agreement, the Company shall
be bound by such determination in the absence of a misrepresentation or omission
of a material fact by Indemnitee in connection with such
determination.

       

      (d) The
Company shall be precluded from asserting that the procedures and presumptions
of this Agreement are not valid, binding and enforceable. The Company shall
stipulate in any such court or before any such arbitrator that the Company is
bound by all of the provisions of this Agreement and is precluded from making
any assertion to the contrary.

       

      (e)
Expenses reasonably incurred by Indemnitee in connection with Indemnitee’s
request for indemnification under, seeking enforcement of or to recover damages
for breach of this Agreement shall be borne by the Company when and as incurred
by Indemnitee irrespective of any Final Adverse Determination that Indemnitee is
not entitled to indemnification.

       

      10.  Partial
Indemnification.  If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of the
costs, judgments, penalties, fines, liabilities or Expenses actually and
reasonably incurred in connection with any action, suit or proceeding (including
an action, suit or proceeding brought by or on behalf of  the
Company), but not, however, for all of the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion of such costs,
judgments, penalties, fines, liabilities and Expenses actually and reasonably
incurred to which Indemnitee is entitled.

      
        
          
          

        

        
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      11. Maintenance of
Insurance. Upon the Company’s purchase of directors’ and officers’
liability insurance policies covering its directors and officers, then, subject
only to the provisions within this Section 11, the Company agrees that so long
as Indemnitee shall have consented to serve or shall continue to serve as a
director or officer of the Company, or both, or as an Agent of the Company, and
thereafter so long as Indemnitee shall be subject to any possible Proceeding
(such periods being hereinafter sometimes referred to as the “Indemnification
Period”), the Company will use all reasonable efforts to maintain in effect for
the benefit of Indemnitee one or more valid, binding and enforceable policies of
directors’ and officers’ liability insurance from established and reputable
insurers, providing, in all respects, coverage both in scope and amount which is
no less favorable than that provided by such preexisting policies.
Notwithstanding the foregoing, the Company shall not be required to maintain
said policies of directors’ and officers’ liability insurance during any time
period if during such period such insurance is not reasonably available or if it
is determined in good faith by the then directors of the Company either
that:

       

      (a) The
premium cost of maintaining such insurance is substantially disproportionate to
the amount of coverage provided thereunder; or

       

      (b) The
protection provided by such insurance is so limited by exclusions, deductions or
otherwise that there is insufficient benefit to warrant the cost of maintaining
such insurance.

       

      Anything
in this Agreement to the contrary notwithstanding, to the extent that and for so
long as the Company shall choose to continue to maintain any policies of
directors’ and officers’ liability insurance during the Indemnification Period,
the Company shall maintain similar and equivalent insurance for the benefit of
Indemnitee during the Indemnification Period (unless such insurance shall be
less favorable to Indemnitee than the Company’s existing policies).

       

      12. Modification, Waiver,
Termination and Cancellation. No supplement, modification, termination,
cancellation or amendment of this Agreement shall be binding unless executed in
writing by both of the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.

       

      13. Subrogation. In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all papers required and shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to
enable the Company effectively to bring suit to enforce such
rights.

       

      14. Notice by Indemnitee and
Defense of Claim. Indemnitee shall promptly notify the Company in writing
upon being served with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any matter, whether civil, criminal,
administrative or investigative, but the omission so to notify the Company will
not relieve it from any liability that it may have to Indemnitee if such
omission does not prejudice the Company’s rights. If such omission does
prejudice the Company’s rights, the Company will be relieved from liability only
to the extent of such prejudice. Notwithstanding the foregoing, such omission
will not relieve the Company from any liability that it may have to Indemnitee
otherwise than under this Agreement. With respect to any Proceeding as to which
Indemnitee notifies the Company of the commencement thereof:

       

      (a) The
Company will be entitled to participate therein at its own expense;
and

       

      (b) The
Company jointly with any other indemnifying party similarly notified will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Indemnitee; provided, however, that the Company shall not be entitled to assume
the defense of any Proceeding if there has been a Change in Control or if
Indemnitee shall have reasonably concluded that there may be a conflict of
interest between the Company and Indemnitee with respect to such Proceeding.
After notice from the Company to Indemnitee of its election to assume the
defense thereof, the Company will not be liable to Indemnitee under this
Agreement for any Expenses subsequently incurred by Indemnitee in connection
with the defense thereof, other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s
own counsel in such Proceeding, but the fees and expenses of such counsel
incurred after notice from the Company of its assumption of the defense thereof
shall be at the expense of Indemnitee unless:

      
        
          
          

        

        
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      (i) the
employment of counsel by Indemnitee has been authorized by the
Company;

       

      (ii)
Indemnitee shall have reasonably concluded that counsel engaged by the Company
may not adequately represent Indemnitee due to, among other things, actual or
potential differing interests; or

       

      (iii) the
Company shall not in fact have employed counsel to assume the defense in such
Proceeding or shall not in fact have assumed such defense and be acting in
connection therewith with reasonable diligence; in each of which cases the fees
and expenses of such counsel shall be at the expense of the
Company.

       

      (c) The
Company shall not settle any Proceeding in any manner that would impose any
penalty or limitation on Indemnitee without Indemnitee’s written consent;
provided, however, that Indemnitee will not unreasonably withhold his or her
consent to any proposed settlement.

       

      15. Notices. All notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if (a) delivered by hand and receipted
for by the party to whom said notice or other communication shall have been
directed, (b) delivered by facsimile with telephone confirmation of receipt or
(c) mailed by certified or registered mail with postage prepaid, on the third
business day after the date on which it is so mailed:

       

      (i) If to
Indemnitee, to the address or facsimile number set forth on the signature page
hereto.

       

      (ii) If
to the Company, to:

       

      SunPower
Corporation

      3939
North First Street

      San Jose,
California  95134

      Attn:  Corporate
Secretary

       

      or to
such other address as may have been furnished to Indemnitee by the Company or to
the Company by Indemnitee, as the case may be.

       

      16. Nonexclusivity. The
rights of Indemnitee hereunder shall not be deemed exclusive of any other rights
to which Indemnitee may be entitled under applicable law, the Company’s
Certificate of Incorporation or bylaws, or any agreements, vote of stockholders,
resolution of the Board of Directors or otherwise, and to the extent that during
the Indemnification Period the rights of the then existing directors and
officers are more favorable to such directors or officers than the right
currently provided to Indemnitee thereunder or under this Agreement, Indemnitee
shall be entitled to the full benefits of such more favorable
rights.

       

      17. Certain
Definitions.

       

      (a)
“Agent” shall
mean any person who is or was, or who has consented to serve as, a director,
officer, employee, agent, fiduciary, joint venturer, partner, manager or other
official of the Company or a subsidiary or an affiliate of the Company, or any
other entity (including without limitation, an employee benefit plan) either at
the request of, for the convenience of, or otherwise to benefit the Company or a
subsidiary of the Company.

       

      (b)
“Change in
Control” shall mean the occurrence of any of the following:

       

      (i) Both
(A) any “person” (as defined below) is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing at least twenty percent (20%) of the
total voting power represented by the Company’s then outstanding voting
securities and (B) the beneficial ownership by such person of securities
representing such percentage has not been approved by a majority of the
“continuing directors” (as defined below);

       

      (ii) Any
“person” is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing at least fifty percent (50%) of the total voting power represented
by the Company’s then outstanding voting securities;

      
        
          
          

        

        
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      (iii) A
change in the composition of the Board of Directors occurs, as a result of which
fewer than two-thirds of the incumbent directors are directors who either (A)
had been directors of the Company on the “look-back date” (as defined below)
(the “Original Directors”) or (B) were elected, or nominated for election, to
the Board of Directors with the affirmative votes of at least a majority in the
aggregate of the Original Directors who were still in office at the time of the
election or nomination and directors whose election or nomination was previously
so approved (the “continuing directors”);

       

      (iv) The
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, if such merger or consolidation would result in the
voting securities of the Company outstanding immediately prior thereto
representing (either by remaining outstanding or by being converted into voting
securities of the surviving entity) fifty percent (50%) or less of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation;
or

       

      (v) The
stockholders of the Company approve (A) a plan of complete liquidation of the
Company or (B) an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets.

       

      For
purposes of Subsection (i) above, the term “person” shall have the same meaning
as when used in Sections 13(d) and 14(d) of the Exchange Act, but shall exclude
(x) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or of a parent or subsidiary of the Company or (y) a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of the common stock of the
Company.

       

      For
purposes of Subsection (iii) above, the term “look-back date” shall mean the
later of (x) the Effective Date and (y) the date twenty-four (24) months prior
to the date of the event that may constitute a “Change in Control.”

       

      Any other
provision of this Section 17(b) notwithstanding, the term “Change in Control”
shall not include a transaction, if undertaken at the election of the Company,
the result of which is to sell all or substantially all of the assets of the
Company to another corporation (the “surviving corporation”); provided that the
surviving corporation is owned directly or indirectly by the stockholders of the
Company immediately following such transaction in substantially the same
proportions as their ownership of the Company’s common stock immediately
preceding such transaction; and provided, further, that the surviving
corporation expressly assumes this Agreement.

       

      (c)
“Disinterested
Director” shall mean a director of the Company who is not or was not a
party to or otherwise involved in the Proceeding in respect of which
indemnification is being sought by Indemnitee.

       

      (d)
“Expenses”
shall include all direct and indirect costs (including, without limitation,
attorneys’ fees, retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, all other disbursements or
out-of-pocket expenses and reasonable compensation for time spent by Indemnitee
for which Indemnitee is otherwise not compensated by the Company or any third
party) actually and reasonably incurred in connection with either the
investigation, defense, settlement or appeal of a Proceeding or establishing or
enforcing a right to indemnification under this Agreement, applicable law or
otherwise; provided, however, that “Expenses” shall not include any
Liabilities.

       

      (e)
“Final Adverse
Determination” shall mean that a determination that Indemnitee is not
entitled to indemnification shall have been made pursuant to Section 6 hereof
and either (1) a final adjudication in the Court of Chancery of the State of
Delaware or decision of an arbitrator pursuant to Section 9(a) hereof shall have
denied Indemnitee’s right to indemnification hereunder, or (2) Indemnitee shall
have failed to file a complaint in a Delaware court or seek an arbitrator’s
award pursuant to Section 9(a) for a period of one hundred twenty (120) days
after the determination made pursuant to Section 6 hereof.

       

      (f)
“Independent Legal
Counsel” shall mean a law firm or a member of a firm selected by the
Company and approved by Indemnitee (which approval shall not be unreasonably
withheld) or, if there has been a Change in Control, selected by Indemnitee and
approved by the Company (which approval shall not be unreasonably withheld),
that neither is presently nor in the past five (5) years has been retained to
represent: (i) the Company or any of its 

      
        
          
          

        

        
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subsidiaries
or affiliates, or Indemnitee or any corporation of which Indemnitee was or is a
director, officer, employee or agent, or any subsidiary or affiliate of such a
corporation, in any material matter, or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “Independent Legal Counsel” shall not include any person
who, under the applicable standards of professional conduct then prevailing,
would have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s right to indemnification under
this Agreement.

      

       

      (g)
“Liabilities”
shall mean liabilities of any type whatsoever including, but not limited to, any
judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid
in settlement (including all interest assessments and other charges paid or
payable in connection with or in respect of such judgments, fines, penalties or
amounts paid in settlement) of any Proceeding.

       

      (h)
“Proceeding”
shall mean any threatened, pending or completed action, claim, suit,
arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative, that is associated with Indemnitee’s being an
Agent of the Company.

       

      18. Binding Effect; Duration and
Scope of Agreement. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business
or assets of the Company), spouses, heirs and personal and legal
representatives. This Agreement shall continue in effect during the
Indemnification Period, regardless of whether Indemnitee continues to serve as
an Agent.

       

      19. Severability. If any
provision or provisions of this Agreement (or any portion thereof) shall be held
to be invalid, illegal or unenforceable for any reason whatsoever:

       

      (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and

       

      (b) to
the fullest extent legally possible, the provisions of this Agreement shall be
construed so as to give effect to the intent of any provision held invalid,
illegal or unenforceable.

       

      20. Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware, as applied to contracts between Delaware
residents entered into and to be performed entirely within the State of
Delaware, without regard to conflict of laws rules.

       

      21. Consent to
Jurisdiction. The Company and Indemnitee each irrevocably consent to the
jurisdiction of the courts of the State of Delaware for all purposes in
connection with any action or proceeding that arises out of or relates to this
Agreement and agree that any action instituted under this Agreement shall be
brought only in the state courts of the State of Delaware.

       

      22. Entire Agreement.
This Agreement represents the entire agreement between the parties hereto, and
there are no other agreements, contracts or understandings between the parties
hereto with respect to the subject matter of this Agreement, except as
specifically referred to herein or as provided in Section 16
hereof.

       

      23. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement.


      
        
           


        

        
          8

          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly
authorized officer and Indemnitee has executed this Agreement as of the date
first above written.

       

      
        	 
      	 
      	
                SUNPOWER
      CORPORATION

              
	 
      	 
      	
                a
      Delaware corporation

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                By:                                                                  

              
	 
      	 
      	 
      
	 
      	 
      	
                Printed
      Name:     Thomas H.
      Werner

              
	 
      	 
      	
                Title:                     CEO                                              

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                INDEMNITEE

              
	 
      	 
      	 
      
	 
      	 
      	
                Signature:                                                                  

              
	 
      	 
      	 
      
	 
      	 
      	
                Printed
      Name:                                                                  

              
	 
      	 
      	 
      
	 
      	 
      	
                Address:

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	
                Telephone:

              
	 
      	 
      	
                Facsimile:

              
	 
      	 
      	
                E-mail: