Convertible Debenture Hedge Transaction Confirmation



 Exhibit 10.5 
  

					
		 	
 




			
		 		 	 Deutsche Bank AG, London Branch
 Winchester house
 1 Great Winchester St, London EC2N 2DB
 Telephone: 44 20 7545 8000
  
 c/o Deutsche Bank Securities Inc.
 60 Wall Street
 New York, NY 10005
 Telephone: 212-250-2500
  
 Internal Reference: 375284


  

			
	To:	  	 SunPower Corporation
 3939
N. First Street
 San Jose, CA 95134
 Attn: Dennis Arriola/CFO
 Telephone: (408) 240-5574
 Facsimile: (408) 240-5404

		
	Re:	  	Base Convertible Debenture Hedge Transaction
		
	Date:    	  	March 25, 2010

  
  
 Dear Sir(s): 
 The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced
transaction entered into on the Trade Date specified below (the “Transaction”) between Deutsche Bank AG acting through its London Branch (“Dealer”) and SunPower Corporation (“Counterparty”). This
communication constitutes a “Confirmation” as referred to in the Agreement specified below. 
 DEUTSCHE BANK AG,
LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. DEUTSCHE BANK SECURITIES INC. (“DBSI”) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY
WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THIS TRANSACTION BETWEEN
DEUTSCHE BANK AG, LONDON BRANCH, AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC). 
 1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2000 ISDA Definitions (including the Annex
thereto) (the “2000 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2000

  


			
	Chairman of the Supervisory Board: Clemens Börsig Board of Managing Directors: Hermann-Josef Lamberti, Josef Ackermann, Dr. Hugo Banziger, Anthony DiIorio	 	Deutsche Bank AG is regulated by the FSA for the conduct of designated investment business in the UK, is a member of the London Stock Exchange and is a limited liability company
incorporated in the Federal Republic of Germany HRB No. 30 000 District Court of Frankfurt am Main; Branch Registration No. in England and Wales BR000005, Registered address: Winchester House, 1 Great Winchester Street, London EC2N
2DB.











 

 

  

 
Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any
inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern. Certain defined terms used herein have the meanings assigned to them in the Base Indenture, dated as of February 7, 2007, between
Counterparty and Wells Fargo Bank, National Association, as trustee (the “Base Indenture”), as supplemented by the Fourth Supplemental Indenture, to be dated as of April 1, 2010 (the “Fourth Supplemental
Indenture”, and, together with the Base Indenture, the “Indenture”) relating to the USD 220,000,000 principal amount of 4.50% senior convertible debentures due 2015 (the “Convertible Debentures”). In the
event of any inconsistency between the terms defined in the Indenture and this Confirmation, this Confirmation shall govern. The Transaction shall be the only transaction under the Agreement. References herein to sections of the Indenture are based
on the draft of the Indenture most recently reviewed by the parties at the time of execution of this Confirmation. If any relevant sections of the Indenture are changed, added or renumbered between the execution of this Confirmation and the
execution of the Indenture, the parties will amend this Confirmation in good faith to preserve the economic intent of the parties based on the draft of the Indenture so reviewed. The parties further acknowledge that references to the Indenture
herein are references to the Indenture as in effect on the date of its execution and if the Indenture is amended following its execution, any such amendment will be disregarded for purposes of this Confirmation unless the parties agree otherwise in
writing. The Transaction is subject to early unwind if the closing of the Convertible Debentures is not consummated for any reason, as set forth below in Section 8(h). 
 Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in,
substantial financial transactions and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below. 
 This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which
this Confirmation relates. This Confirmation shall be subject to an agreement (the “Agreement”) in the form of the 1992 ISDA Master Agreement (Multicurrency – Cross Border) as published by ISDA as if Dealer and Counterparty had
executed an agreement in such form on the date hereof (but without any Schedule except for (i) the election of Loss and Second Method and US Dollars (“USD”) as the Termination Currency, (ii) the replacement of the word
“third” in the last line of Section 5(a)(i) with the word “first”, (iii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to the Counterparty and Dealer, each with a
“Threshold Amount” of USD25 million and 2% of Dealer’s shareholders’ equity, respectively, (iv) the deletion of the phrase “, or becoming capable at such time of being declared,” in the seventh line of
Section 5(a)(vi) of the Agreement and (v) the election that “Credit Event Upon Merger” under Section 5(b)(iv) shall apply to the Counterparty and Dealer). 
 All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified
herein. In the event of any inconsistency between this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern. 
 2. The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows: 
  

			
	General Terms:	  	
		
	 Trade Date:
	  	March 25, 2010
		
	 Effective Date:
	  	April 1, 2010
		
	 Option Style:
	  	Modified American, as described under “Procedures for Exercise” below.
		
	 Option Type:
	  	Call
		
	 Seller:
	  	Dealer
		
	 Buyer:
	  	Counterparty

  

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	 Shares:
	  	The Class A Common Stock of Counterparty, par value USD0.001 per share (Ticker Symbol: “SPWRA”).
		
	 Number of Options:
	  	The number of Convertible Debentures in denominations of USD1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible
Debentures. For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder.
		
	 Option Entitlement:
	  	As of any date, a number of Shares per Option equal to the “Conversion Rate” (as defined in the Indenture, but without regard to any adjustments to the Conversion Rate
or Conversion Price (as defined in the Indenture) pursuant to Section 7.07(b) or 7.08(h) of the Fourth Supplemental Indenture) as of such date.
		
	 Number of Shares:
	  	The product of the Number of Options, the Applicable Percentage and the Option Entitlement.
		
	 Applicable Percentage:
	  	15%
		
	 Premium:
	  	USD9,926,400
		
	 Premium Payment Date:
	  	The Effective Date
		
	 Exchange:
	  	Nasdaq Global Select Market
		
	 Related Exchange:
	  	All Exchanges
		
	Procedures for Exercise:	  	
		
	 Exercise Date:
	  	Each Conversion Date.
		
	 Conversion Date:
	  	Each “Conversion Date” (as defined in the Indenture) occurring during the Exercise Period for Convertible Debentures that are not Relevant Convertible Debentures under,
and as defined in, any confirmation between the parties hereto regarding the Additional Convertible Note Hedge Transaction relating to the Convertible Debentures (the “Additional Convertible Note Hedge Transaction
Confirmation”) (such Convertible Debentures, each in denominations of USD1,000 principal amount, the “Relevant Convertible Debentures” for such Conversion Date). For purposes of determining whether any Convertible
Debentures will be Relevant Convertible Debentures hereunder or under the Additional Convertible Note Hedge Transaction, Convertible Debentures that are converted pursuant to the Indenture shall be allocated first to the Additional Convertible Note
Hedge Transaction Confirmation until all Options thereunder (and as defined therein) are exercised.
		
	 Exercise Period:
	  	The period from and excluding the Trade Date to and including the Expiration Date.

  

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	 Expiration Date:
	  	The earlier of (i) the last day on which any Convertible Debentures remain outstanding and (ii) the second “Scheduled Trading Day” (as defined in the Indenture)
immediately preceding the “Maturity Date” (as defined in the Indenture).
		
	 Automatic Exercise on Conversion Dates:
	  	On each Conversion Date, a number of Options equal to the number of Relevant Convertible Debentures for such Conversion Date in denominations of USD1,000 principal amount shall
be automatically exercised, subject to “Notice of Exercise” below.
		
	 Notice Deadline:
	  	5:00 PM, New York City time, on the Scheduled Trading Day immediately preceding the scheduled first day of the “Settlement Averaging Period” (as defined in the
Indenture) for the Options being exercised; provided that in respect of Options relating to Relevant Convertible Debentures with a Conversion Date occurring on or after December 15, 2014 (the “Early Conversion Date”), the
Notice Deadline is 5:00 PM, New York City time, on the second Scheduled Trading Day immediately preceding the Maturity Date.
		
	 Notice of Exercise:
	  	Notwithstanding anything to the contrary in the Equity Definitions, Dealer shall have no obligation to make any payment in respect of any exercise of Options hereunder unless
Counterparty notifies Dealer in writing on or prior to the Notice Deadline in respect of such exercise of (i) the number of Options being exercised on such Exercise Date and (ii) the scheduled first day of the Settlement Averaging Period for the
Relevant Convertible Debentures and the scheduled Settlement Date. For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment or
delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure.
		
	 Dealer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice:
	  	 To:            Deutsche Bank Securities Inc.

		  	                    60 Wall
Street

		  	                    New York, NY
10005

		  	 Attention:                   Peter Barna

		  	 Telephone:                 (212) 250-1689


		  	 Facsimile:                  (646)
502-4253

		
	Settlement Terms:	  	
		
	 Settlement Date:
	  	For any Exercise Date, the settlement date for the cash to be paid in respect of the Relevant Convertible Debentures for the Conversion Date occurring on such Exercise Date under
the terms of the Indenture.

  

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	 Delivery Obligation:
	  	In lieu of the obligations set forth in Sections 8.1 and 9.1 of the Equity Definitions, and subject to “Notice of Exercise” above, in respect of any Exercise Date,
Dealer will deliver to Counterparty on the related Settlement Date the Cash Settlement Amount for such Exercise Date.
		
	 Cash Settlement Amount:
	  	For any Exercise Date, an amount of cash equal to the product of (i) the Applicable Percentage, (ii) the sum of the Daily Cash Amounts for all Valuation Dates for such Exercise
Date and (iii) the Number of Options exercised on such Exercise Date. In no event will the Cash Settlement Amount be less than zero.
		
	 Valuation Dates:
	  	For each Exercise Date, if such Exercise Date occurs prior to the Early Conversion Date, each of the number of consecutive Trading Days commencing on and including the third
Trading Day following such Exercise Date equal to the Number of Valuation Dates, and, if such Exercise Date occurs on or after the Early Conversion Date, each of the number of consecutive Trading Days commencing on and including the thirty-second
(32nd) Scheduled Trading Day immediately preceding the
Maturity Date equal to the Number of Valuation Dates.
		
	 Daily Cash Amount:
	  	For any Valuation Date for any Exercise Date, (i) the amount, if any, by which (x) the Daily Value for such Valuation Date exceeds (y) USD1,000 divided by the Number of
Valuation Dates.
		
	 Daily Value:
	  	For any Valuation Date for any Exercise Date, (i) the product of the Option Entitlement and the VWAP Price on such Valuation Date divided by (ii) the Number of Valuation
Dates.
		
	 Number of Valuation Dates:
	  	30
		
	 VWAP Price:
	  	For any Valuation Date, the volume weighted average price per Share on the principal exchange or over-the-counter market on which the Shares are then listed or traded, from 9:30
a.m. to 4:00 p.m. (New York City time) on that Valuation Date as then displayed under the heading “Bloomberg VWAP” on Bloomberg Page SPWRA <Equity> AQR, or if such volume weighted average price is not available, the Calculation
Agent’s reasonable, good faith estimate of the volume weighted average price of the Shares on such Valuation Date determined after consultation with the Issuer.
		
	 Trading Day:
	  	A day on which (i) there is no Market Disruption Event and (ii) the Exchange or, if the Shares not listed on the Exchange, the principal other U.S. national or regional
securities exchange on which the Shares are then listed, is open for trading or, if the Shares are not so listed, any Business Day. A “Trading Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City
time) or the then standard closing time for regular trading on the relevant exchange or trading system.

  

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	 Scheduled Trading Day:
	  	A day that is scheduled to be a Trading Day.
		
	 Market Disruption Event:
	  	 Market Disruption Event: Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following:
  
 “Market Disruption Event” means, (1) a failure by the primary exchange or
quotation system on which the Shares trade or are quoted to open for trading during its regular trading session, (2) the occurrence or existence for more than one half hour period in the aggregate on any Scheduled Trading Day for the Shares of any
suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Exchange or otherwise) in the Shares or in any options, contracts or future contracts relating to the Shares, and such suspension or
limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day or (3) the occurrence or existence of a Regulatory Disruption.

		
	 Regulatory Disruption:
	  	Any event that Dealer, in its discretion, determines makes it appropriate with regard to any legal, regulatory or self-regulatory requirements or related policies and procedures
(whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, and including without limitation Rule 10b-18, Rule 10b-5, Regulation 13D-G and Regulation 14E under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and Regulation M), for Dealer to refrain from or decrease any market activity in connection with the Transaction. Dealer shall notify Counterparty as soon as reasonably practicable that a
Regulatory Disruption has occurred and the Valuation Dates affected by it.
		
	Adjustments:	  	
		
	 Method of Adjustment:
	  	Notwithstanding Section 11.2 of the Equity Definitions, upon the occurrence of any event or condition set forth in Section 7.08(a), 7.08(b), 7.08(c), 7.08(d), 7.08(e) or 7.08(g)
of the Fourth Supplemental Indenture (an “Adjustment Event”), the Calculation Agent shall make the corresponding adjustment in respect of any one or more of the Number of Options, the Option Entitlement and any other variable
relevant to the exercise, settlement or payment of the Transaction, to the extent an analogous adjustment is made under the Indenture. Immediately upon the occurrence of any Adjustment Event, Counterparty shall notify the Calculation Agent of such
Adjustment Event; and once the adjustments to be made to the terms of the Indenture and the Relevant Convertible Debentures in respect of such Adjustment Event have been determined, Counterparty shall immediately notify the Calculation Agent in
writing of the details of such adjustments.

  

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	Extraordinary Events:	  	
		
	 Merger Events:
	  	Notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in Section 5.1 or 5.2 of the Base
Indenture or Section 7.09 of the Fourth Supplemental Indenture.
		
	 Consequences of Merger Events:
	  	Notwithstanding Sections 12.2 of the Equity Definitions, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment in respect of any
adjustment under the Indenture to any one or more of the nature of the Shares, the Number of Options, the Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, to the extent an analogous
adjustment is made under the Indenture in respect of such Merger Event; provided that such adjustment shall be made without regard to any adjustment to the Conversion Rate for the issuance of additional Shares as set forth in Section 7.07(b)
or 7.08(h) of the Fourth Supplemental Indenture.
		
	 Notice of Merger Consideration:
	  	Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any
form of stockholder election), Counterparty shall reasonably promptly (but in any event prior to the relevant merger date) notify the Calculation Agent of (i) the weighted average of the types and amounts of consideration received by the holders of
Shares entitled to receive cash, securities or other property or assets with respect to or in exchange for such Shares in any Merger Event who affirmatively make such an election and (ii) the details of the adjustment made under the Indenture in
respect of such Merger Event.
		
	 Nationalization, Insolvency or Delisting:
	  	Cancellation and Payment (Calculation Agent Determination); provided that in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also
constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the
NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the
Exchange.

  

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	 Additional Disruption Events:
	  	
		
	 (a) Change in Law:
	  	Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by the replacement of the word “Shares” with “Hedge
Positions”; (ii) by adding the phrase “or public announcement of” immediately after the phrase “due to the promulgation of or” in the third line thereof and adding the phrase “formal or informal” before the word
“interpretation” in the same line; and (iii) immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”.
		
	 (b) Insolvency Filing:
	  	Applicable
		
	 (c) Hedging Disruption:
	  	Applicable
		
	 (d) Increased Cost of Hedging:
	  	Applicable; provided that Section 12.9(a)(vi) of the Equity Definitions is hereby amended by adding the parenthetical “(including without limitation the volatility
risk)” after the word “risk” in the fifth line thereof.
		
	 (e) Failure to Deliver:
	  	Not Applicable
		
	 Hedging Party:
	  	Dealer
		
	 Determining Party:
	  	Dealer
		
	 Non-Reliance:
	  	Applicable
		
	 Agreements and Acknowledgments Regarding Hedging Activities:
	  	Applicable
		
	 Additional Acknowledgments:
	  	Applicable
		
	 3. Calculation Agent:
	  	Dealer. Upon request, the Calculation Agent shall provide to either party hereto (and any advisers to such party as requested) a reasonably detailed explanation of any
calculation or determination hereunder. The Calculation Agent shall provide notice to the parties of any calculation or determination hereunder as soon as commercially reasonably practicable following making such calculation or determination. Each
party shall have the right to bring to the attention of the Calculation Agent any facts that such party feels may result in an adjustment or determination hereunder.


	
	
	 4. Account Details:

	
	 Dealer Payment Instructions:

	
	 The Bank of New York

	 Bank Routing: 021-000-018

	 Account Name: Deutsche Bank Securities Inc.

	 Account No.: 8900327634


  

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	 Counterparty Payment Instructions:

	
	 To be provided by Counterparty.

	
	 5. Offices:

	
	 The Office of Dealer for the Transaction is:

	
	 Deutsche Bank AG, London Branch

	 Winchester house

	 1 Great Winchester St.

	 London EC2N 2DB

	
	 The Office of Counterparty for the Transaction is:

	
	 SunPower Corporation

	 3939 N. First Street

	 San Jose, CA 95134

	
	 6. Notices: For purposes of this Confirmation:

	
	 (a)    Address for notices or communications to Counterparty:

	
	 To:                      SunPower Corporation

	                             3939 N. First Street

	                             San Jose, CA 95134

	 Attn:                   Dennis
Arriola/CFO

	 Telephone:       (408) 240-5574

	 Facsimile:         (408) 240-5404

	
	 With a copy to:

	
	 Attn:                   Bruce
Ledesma/GC

	 Facsimile:         (510) 540-0552

	
	 (b)    Address for notices or communications to Dealer:

	
	 To:                      Deutsche Bank Securities Inc.

	                             60 Wall Street

	                             New York, NY 10005

	 Attention:         Peter Barna

	 Telephone        No: (212) 250-1689

	 Facsimile:         (646) 502-4253


 7. Representations, Warranties and Agreements: 
 (a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, Dealer as
follows: 
 (i) On the Trade Date, (A) none of Counterparty and its officers and directors is aware of any
material nonpublic information regarding Counterparty or the Shares and (B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more
recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading. 
  

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 (ii) On the Trade Date, neither Counterparty nor any
“affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 of the Exchange Act (“Rule 10b-18”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or other
derivative instrument other than the Transaction) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of
beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares. 
 (iii) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the treatment of
the Transaction under any accounting standards including FASB Statements 128, 133 (as amended), 149 or 150, EITF Issue No. 00-19, 01-6 or 03-6 (or any successor issue statements) or under FASB’s Liabilities & Equity Project.

 (iv) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not
violate Rule 13e-1 or Rule 13e-4 under the Exchange Act. 
 (v) Prior to the Trade Date, Counterparty shall
deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction and such other certificate or certificates as Dealer shall reasonably request. 
 (vi) Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any
security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or to otherwise violate the Exchange Act. 
 (vii) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register
as, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. 
 (viii) On each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the
“Bankruptcy Code”)) and Counterparty would be able to perform its obligations hereunder in compliance with the laws of the jurisdiction of Counterparty’s incorporation. 
 (ix) The representations and warranties of Counterparty set forth in Section 3 of the Agreement and Section 3 of
the Purchase Agreement dated as of March 25, 2010 between Counterparty and Deutsche Bank Securities Inc., as representative of the Initial Purchasers party thereto (the “Purchase Agreement”) are true and correct as of the Trade
Date and the Effective Date and are hereby deemed to be repeated to Dealer as if set forth herein. 
 (b) Each of Dealer and
Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as amended. 
 (c) Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration
under the Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic
risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net
worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated
under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will
not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has no need for liquidity with respect to its investment in the
Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice),
and understands and accepts, the terms, conditions and risks of the Transaction. 
  

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 (d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a
“financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge
(A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a “settlement payment,” as
such term is defined in Section 741(8) of the Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a
“transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of
the Bankruptcy Code. 
 (e) Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry
Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein. 
 (f) Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Trade Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in
Section 3(a) of the Agreement. 
 8. Other Provisions: 
 (a) Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer in accordance
with the advice of outside counsel, the Shares (the “Hedge Shares”) acquired by Dealer for the purpose of hedging its obligations pursuant to the Transaction cannot be sold in the U.S. public market by Dealer without registration
under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective registration statement under the Securities Act to cover the
resale of such Hedge Shares and (A) enter into an agreement, in form and substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered offering, (B) provide accountant’s “comfort”
letters in customary form for registered offerings of equity securities, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty reasonably acceptable to Dealer, (D) provide other customary opinions,
certificates and closing documents customary in form for registered offerings of equity securities and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary in
scope for underwritten offerings of equity securities; provided, however, that if Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the
procedures and documentation for the registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(a) shall apply at the election of Counterparty; (ii) in order to allow Dealer to sell the Hedge Shares
in a private placement, to enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities, in form and substance satisfactory to Dealer, including
customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such
other documentation as is customary for private placements agreements, all reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable
judgment, to compensate Dealer for any discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); or (iii) purchase the Hedge Shares from Dealer at the VWAP Price on such Exchange Business
Days, and in the amounts, requested by Dealer. For the avoidance of doubt, under no circumstances shall Counterparty be obligated to make the election described in clause (iii) of the preceding sentence. 
 (b) Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Dealer a
written notice of such repurchase (a “Repurchase Notice”) on such day if, following such repurchase, the Notice Percentage as determined on such day is (i) greater

  

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than 2.0 % and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than
the Notice Percentage as of the date hereof). The “Notice Percentage” as of any day is the fraction, expressed as a percentage, the numerator of which is the Number of Shares and the denominator of which is the number of Shares
outstanding on such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 8(b) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates
and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities (or actions in
respect thereof), joint or several, to which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act, relating to or arising out of such failure. If for any reason
the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the
Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Party for all expenses (including reasonable counsel fees and expenses) as they are incurred (after notice to
Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and
whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the
Transaction made pursuant to this Confirmation or the Agreement shall inure to the benefit of any permitted assignee of Dealer. 
 (c) Additional Termination Events. (i) The occurrence of (A) an event of default with respect to Counterparty under the terms of the Convertible Debentures as set forth in Section 5.01 of the Fourth Supplemental
Indenture or (B) an Amendment Event shall be an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate
an Early Termination Date pursuant to Section 6(b) of the Agreement. 
 “Amendment Event”
means that Counterparty amends, modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Debentures governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right
of Counterparty, any term relating to conversion of the Convertible Debentures (including changes to the conversion price, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than
100% of the principal amount of the Convertible Debentures to amend, in each case without the prior consent of Dealer. 
 (ii) If at any time the senior unsecured debt of Dealer is rated Baa1 or lower by Moody’s Investor Services, Inc. (“Moody’s”) or BBB+ or lower by Standard and Poor’s Rating Services
(“S&P”) (a “Ratings Downgrade”), then an Additional Termination Event, with Counterparty as the sole Affected Party, the Transaction as the sole Affected Transaction and Counterparty as the party entitled to
designate an Early Termination Date, shall occur on the date three Exchange Business Days following the occurrence of such Ratings Downgrade (the “Downgrade Deadline”) unless, on or prior to the Downgrade Deadline, either
(i) Dealer has agreed to provide collateral to Counterparty on a mark-to-market basis to secure Dealer’s obligations hereunder on terms commercially reasonably acceptable to Counterparty and Dealer or (ii) Dealer shall have
transferred and assigned its obligations hereunder to a person with (or whose obligations hereunder are fully and unconditionally guaranteed by a person with) a credit rating of A2 or higher from Moody’s and A or higher from S&P (and
Counterparty agrees that it will not object to any such transfer and assignment). In the case of clause (i), eligible collateral shall include cash, cash equivalents and equity securities of Counterparty, including without limitation Shares and
any warrants issued by Counterparty, and any other collateral reasonably acceptable to Counterparty, and the Calculation Agent shall make all determinations of exposure and collateral value. 
 (d) Right to Extend. Dealer may postpone any Settlement Date or any other date of valuation or delivery by Dealer to a date no later
than the Final Disruption Date to an Exercise Date occurring on the Expiration Date, in the case of a date of valuation, or the date one Settlement Cycle following the Final Disruption Date applicable to an Exercise Date occurring on the Expiration
Date, in the case of a date of

  

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delivery, with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Delivery Obligation), if Dealer determines, in its
reasonable discretion, that such extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market or the stock borrow market or other
relevant market or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be in
compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer. 
 (e) Transfer and Assignment. Either party may transfer any of its rights or obligations under the Transaction with the prior written consent of the non-transferring party, such consent not to be
unreasonably withheld; provided that Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to any person with (or whose obligations hereunder are fully and unconditionally
guaranteed by a person with) a credit rating of “A” or higher from Standard and Poor’s Rating Services or “A2” or higher from Moody’s Investor Services, Inc.; provided further that at any time at which
(1) the Equity Percentage exceeds 8%, (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer
Person”) under Section 203 of the Delaware General Corporation Law (the “DGCL Takeover Statute”) or any state or federal bank holding company or banking laws, or other federal, state or local regulations or regulatory
orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares
equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws (including,
without limitation, “interested stockholder” or “acquiring person” status under the DGCL Takeover Statute) and with respect to which such requirements have not been met or the relevant approval has not been received minus
(y) 2% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”), or (3) a Hedging Disruption has occurred and is
continuing, if Dealer, in its discretion, is unable to effect a transfer or assignment to a third party in accordance with the requirements set forth above after using its commercially reasonable efforts on pricing terms reasonably acceptable to
Dealer such that an Excess Ownership Position or a Hedging Disruption, as the case may be, no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated
Portion”) of the Transaction, such that such Excess Ownership Position or Hedging Disruption, as the case may be, no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the
Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the Transaction,
(ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such portion of the Transaction shall be the only Terminated Transaction. The “Equity Percentage” as of any day is the
fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of
the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (collectively, “Dealer Group”) “beneficially own” (within the meaning of
Section 13 of the Exchange Act) without duplication on such day and (B) the denominator of which is the number of Shares outstanding on such day. 
 (f) Equity Rights. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders
in the event of Counterparty’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim arising as a result of a breach by
Counterparty of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that this Confirmation is not secured by any collateral that would otherwise secure the obligations of Counterparty
herein under or pursuant to any other agreement. 
  

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 (g) Netting and Set-off. 
 (i) If on any date cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or
pursuant to the Agreement or pursuant to any other agreement between the parties by Counterparty to Dealer and cash would otherwise be payable or Shares or other property would otherwise be deliverable hereunder or pursuant to the Agreement or
pursuant to any other agreement between the parties by Dealer to Counterparty and the type of property required to be paid or delivered by each such party on such date is the same, then, on such date, each such party’s obligation to make such
payment or delivery will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been payable or deliverable by one such party exceeds the aggregate amount that would otherwise have been payable or
deliverable by the other such party, replaced by an obligation of the party by whom the larger aggregate amount would have been payable or deliverable to pay or deliver to the other party the excess of the larger aggregate amount over the smaller
aggregate amount. 
 (ii) In addition to and without limiting any rights of set-off that a party hereto may have
as a matter of law, pursuant to contract or otherwise, upon the occurrence of an Early Termination Date, Dealer shall have the right to terminate, liquidate and otherwise close out the Transaction and to set off any obligation or right that Dealer
or any affiliate of Dealer may have to or against Counterparty hereunder or under the Agreement against any right or obligation Dealer or any of its affiliates may have against or to Counterparty, including without limitation any right to receive a
payment or delivery pursuant to any provision of the Agreement or hereunder. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set
off in kind. In the case of a set-off of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the Calculation Agent and the
result of such set-off shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option, with a value (determined, in the case of a delivery of assets, by the Calculation Agent)
equal to that of the net obligation. In determining the value of any obligation to release or deliver Shares or any right to receive Shares, the value at any time of such obligation or right shall be determined by reference to the market value of
the Shares at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which
case set-off will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained. 
 (iii) Notwithstanding any provision of the Agreement (including without limitation Section 6(f) thereof) and this
Confirmation (including without limitation this Section 8(g)) or any other agreement between the parties to the contrary, (A) Counterparty shall not net or set off its obligations under the Transaction, if any, against its rights against
Dealer under any other transaction or instrument and (B) in the event of bankruptcy or liquidation of Counterparty, neither party shall have the right to set off any obligation that it may have to the other party under the Transaction against
any obligation such other party may have to it under the Agreement, this Confirmation or any other agreement between the parties hereto, by operation of law or otherwise. Dealer will give notice to Counterparty of any netting or set off effected
under this provision. 
 (h) Early Unwind. In the event the sale by Counterparty of the Convertible Debentures is not
consummated with the Initial Purchasers (as defined in the Purchase Agreement) pursuant to the Purchase Agreement for any reason by the close of business in New York on April 1, 2010 (or such later date as agreed upon by the parties, which in
no event shall be later than April 8, 2010) (April 1, 2010 or such later date being the “Early Unwind Date”), the Transaction shall automatically terminate (the “Early Unwind”), on the Early Unwind Date and
(i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty thereunder shall be cancelled and terminated and (ii) Counterparty shall deliver to Dealer, other than in cases involving a breach of the
Purchase Agreement by the Initial Purchasers, an amount in cash equal to the aggregate amount of costs and expenses relating to the unwinding of Dealer’s hedging activities in respect of the Transaction (including market losses incurred in
reselling any Shares purchased by Dealer or its affiliates in connection with such hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at which Dealer purchased such Shares), but after giving effect to any gains
experienced by Dealer. Following such termination, cancellation and

  

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payment, each party shall be released and discharged by the other party from and agrees not to make any claim against the other party with respect to any obligations or liabilities of either
party arising out of and to be performed in connection with the Transaction either prior to or after the Early Unwind Date. 
 (i) Method of Delivery. Whenever delivery of funds or other assets is required hereunder by or to Counterparty, such delivery shall be effected through DBSI. In addition, all notices, demands and communications of any kind relating
to the Transaction between Dealer and Counterparty shall be transmitted exclusively through DBSI. 
 (j) Disclosure.
Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure. 
 (k) Counterparts. This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. 
 (l) Waiver of Trial by Jury. EACH OF COUNTERPARTY AND
DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF COUNTERPARTY OF ITS AFFILIATES OR DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. 
 (m) Submission to Jurisdiction. Each party hereby irrevocably and unconditionally submits for itself and its property in any legal
action or proceeding by the other party against it relating to the Transaction to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the Supreme Court of the State of New
York, sitting in New York County, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof. 
 (n) Governing Law. THIS CONFIRMATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE). 
  

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 Please confirm that the foregoing correctly sets forth the terms of our agreement by
sending to us a letter or telex substantially similar to this facsimile, which letter or telex sets forth the material terms of the Transaction to which this Confirmation relates and indicates your agreement to those terms. Dealer will make the time
of execution of the Transaction available upon request. 
 Dealer is regulated by the Financial Services Authority. 
  

			
	DEUTSCHE BANK AG, LONDON BRANCH
		
	By:	 	/s/ LARS KESTNER
	Name:	 	Lars Kestner
	Title:	 	Managing Director
		
	By:	 	/s/ DUSHYANT CHADHA
	Name:	 	Dushyant Chadha
	Title:	 	Managing Director
	
	 DEUTSCHE BANK SECURITIES INC.,
 acting solely as Agent in connection with the Transaction

		
	By:	 	/s/ LARS KESTNER
	Name:	 	Lars Kestner
	Title:	 	Managing Director
		
	By:	 	/s/ DUSHYANT CHADHA
	Name:	 	Dushyant Chadha
	Title:	 	Managing Director

 Confirmed and Acknowledged as of the
date first above written: 
  

			
	SUNPOWER CORPORATION
		
	By:	 	/s/ BRUCE LEDESMA
	Name:	 	Bruce Ledesma
	Title:	 	General Counsel

  

			
	 Chairman of the Supervisory Board: Clemens Börsig
 Board of Managing Directors: Hermann-Josef Lamberti, Josef Ackermann, Dr. Hugo Banziger, Anthony DiIorio
	 	Deutsche Bank AG is regulated by the FSA for the conduct of designated investment business in the UK, is a member of the London Stock Exchange and is a limited liability company
incorporated in the Federal Republic of Germany HRB No. 30 000 District Court of Frankfurt am Main; Branch Registration No. in England and Wales BR000005, Registered address: Winchester House, 1 Great Winchester Street, London EC2N
2DB.