exv10w1



 





Exhibit 10.1









AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          This Agreement is made as of August 27, 2007, (this “Agreement”) by and between First Solar,
Inc., a Delaware corporation having its principal office at 4050 East Cotton Center Boulevard,
Building 6, Suite 68, Phoenix, Arizona 85040 (hereinafter “Employer”) and Kenneth Michael Schultz
(hereinafter “Employee”).




WITNESSETH:




          WHEREAS, Employer and Employee wish to enter into an agreement relating to the employment of
Employee by Employer.




          WHEREAS, Employer and Employee entered into an employment agreement dated as of November 1,
2002 (the “Original Employment Agreement”), and the parties intend to amend and restate in its
entirety the Original Employment Agreement with this Agreement,




          WHEREAS, Employer and Employee wish to irrevocably waive certain provisions contained in the
Unit Option Agreement entered into between Employer and Employee dated December 8, 2003, pursuant
to which Employee received stock options under the First Solar Holdings, LLC 2003 Unit Option Plan
(the “Option Agreement”);




          WHEREAS Employer and Employee shall enter into a change in control agreement (the “Change in
Control Agreement”) that the parties intend to replace and supersede in its entirety the original
change in control agreement (the “Original Change in Control Agreement”) dated as of December 8,
2003, a confidentiality and intellectual property agreement (the “Confidentiality Agreement”) and a
non-compete and solicitation agreement (the “Non-Competition and Non-Solicitation Agreement”)
between the Employer and Employee concurrently with this Agreement; and




          WHEREAS, Employer and Employee have also entered into an Indemnification Agreement (the
“Indemnification Agreement”) dated as of October 30, 2006 and the parties intend that the
Indemnification Agreement continues to remain in full force and effect.




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




ARTICLE I. Employment



1.1 At-Will Nature of Employment. Employer hereby employs Employee as a full-time, at-will
employee, and Employee hereby accepts employment with Employer as a full-time, at-will


 









 






employee. Employer or Employee may terminate this Agreement at any time and for any reason, with
or without cause and with or without notice, subject to the provisions of this Agreement.



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



1.3 No Salary or Benefits Continuation Beyond Termination. Except as may be required by
law or as otherwise specified in this Agreement or the Change in Control Agreement, Employer shall
not be liable to Employee for any salary or benefits continuation beyond the date of Employee’s
cessation of employment with Employer. The rights and obligations set forth in Sections 1.3, 1.5
and 4.1 of this Agreement shall survive termination of Employee’s employment and termination of
this Agreement.



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



1.5 Severance Payments and Vacation Pay.





     (a) Vacation Pay in the Event of a Termination of Employment. Employee shall be
entitled to receive, in addition to the severance payments described in



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Sections 1.5(a) above, the dollar value of any earned but unused (and unforfeited) vacation for the
year of termination.




     (b) Severance Payments in the Case of a Termination Without Cause Pursuant to Clause
1.4(v). If Employee’s employment is terminated by Employer pursuant to clause (v) of Section
1.4 (termination without cause), then, subject to the Change in Control Agreement, Employee shall
be entitled to a lump sum cash severance payment, payable within 10 business days following the
Release Effective Date (as defined below) equal to 1.5 times the Base Salary (as hereinafter
defined) in effect as of the date of termination of employment. Severance payments shall be
subject to any applicable tax withholding. Notwithstanding anything to the contrary herein, no
severance payments shall be made unless Employee executes a general release in favor of Employer
and its affiliates substantially in the form attached as Exhibit A satisfactory to Employer and
such release is effective and irrevocable on or prior to the tenth business day prior to March 15
of the year following the year of termination (the Date such release is effective and irrevocable,
the “Release Effective Date”).




     (c) Medical Insurance. In the event of the termination of Employee’s employment with
Employer without cause under Section 1.4(v) above, Employer will provide or pay for Employee’s
COBRA payments for continued medical coverage during the shorter of (a) the 18 month period
following such termination and (b) the maximum COBRA period permitted under applicable law.




     (d) Vesting. In the event of the termination of Employee’s employment with Employer
due to a termination by Employer without cause under Section 1.4(v) above, Employee’s stock
options, restricted stock or any other equity compensation subject to vesting shall continue to
vest for another twelve (12) months after such termination. After such twelve-month period,
Employee will have a 90 day period in which to exercise any vested stock options or other equity
based compensation, provided that if during such 90 day period, Employee is under any trading
restriction due to a lockup agreement or closed trading window, such 90 day period shall be tolled
during the period of such trading restriction. Notwithstanding anything to the contrary herein, in
no event shall any option or stock appreciation right continue to be exercisable after the original
expiration date of such option or stock appreciation right (without regard to any earlier
expiration resulting from a termination of employment).



ARTICLE II. Compensation



2.1 Base Salary. Employee shall be compensated at an annual base salary of $360,000 (the
“Base Salary”) while Employee is employed by Employer under this Agreement, subject to such annual
increases that Employer may in its sole discretion determine to be appropriate. Such Base Salary
shall be paid in accordance with Employer’s standard policies and shall be subject to applicable
tax withholding.



2.2 Annual Bonus Eligibility. Employee shall be eligible to receive an annual bonus of up
to sixty percent (60%) of Employee’s Base Salary (without pro-ration for the current fiscal year
with Employees previous Base Salary) based upon individual and company performance, as




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determined by Employer in its sole discretion. The specific bonus eligibility and the standards
for earning a bonus will be developed by Employer and communicated to Employee as soon as
practicable after the beginning of each year and shall otherwise be conditional on your continued
employment through the payment date.



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



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



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



2.7 Location. The position will be based in Phoenix, Arizona.




ARTICLE III. Absence of Restrictions



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




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ARTICLE IV. Miscellaneous



4.1 Option Agreement. Employer and Employee acknowledge that by operation of the conversion of the
Employer to a corporation formed under the laws of Delaware and becoming a public company with
common stock listed on the NASDAQ stock exchange, certain provisions of the Option Agreement are no
longer applicable and mutually agree to irrevocably waive their respective rights under Sections
12, 13, 14 and 15 of the Option Agreement.



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



4.3 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without reference to the principles of conflicts
of laws. Any judicial action commenced relating in any way to this Agreement including, the
enforcement, interpretation, or performance of this Agreement, shall be commenced and maintained in
a court of competent jurisdiction located in Maricopa County, Arizona. The parties hereby waive
and relinquish any right to a jury trial and agree that any dispute shall be heard and resolved by
a court and without a jury. The parties further agree that the dispute resolution, including any
discovery, shall be accelerated and expedited to the extent possible. Each party’s agreements in
this Section 4.3 are made in consideration of the other party’s agreements in this Section 4.3, as
well as in other portions of this Agreement.



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



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




	 	 	 	 	 
	 

	 	If to Employer:
	 	First Solar, Inc.

4050 East Cotton Center Boulevard

Building 6

Suite 68

Phoenix, AZ 85040

Attention: Chief Executive Officer with a copy to the
General Counsel
	 
	 	 	 	 
	 

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





or at such other address or addresses as any such party may have furnished to the other party in
writing in a manner provided in this Section 4.5.




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



4.7 Entire Agreement. This Agreement, the Indemnity Agreement, the Change in Control
Agreement, the Non-Competition and Non-Solicitation Agreement and the Confidentiality Agreement set
forth the entire agreement between Employer and Employee regarding the terms of Employee’s
employment and supersedes all prior agreements between Employer and Employee covering the terms of
Employee’s employment. This Agreement may not be amended or modified except in a written
instrument signed by Employer and Employee identifying this Agreement and stating the intention to
amend or modify it. The Original Employment Agreement is agreed to be of no further force or
effect and is superseded and replaced in its entirety by this Agreement.



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



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




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



	 	 	 	 	 
	 	EMPLOYEE:	 	 	 




	 	/s/ KENNETH MICHAEL SCHULTZ	 
	 	 	 
	 	Kenneth Michael Schultz	 
	 



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	 	EMPLOYER:



FIRST SOLAR, INC.

 	 
	 	By:  	/s/ MICHAEL
J. AHEARN	 
	 	 	Name Printed: 	Michael
J. Ahearn 	 
	 	 	Title:  CEO	 	 
	 



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Exhibit A




SEPARATION AGREEMENT AND RELEASE



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



The undersigned affirms that he/she has not filed, caused to be filed, or presently is a party to
any Claim, complaint or action against any Release Party in any forum or form and that he/she knows
of no facts which may lead to any Claim, complaint or action being filed against any Release Party
in any forum by the undersigned or by any agency, group, or class persons. The undersigned further
affirms that he/she has been paid and/or has received all leave (paid or unpaid), compensation,
wages, bonuses, commissions, and/or benefits to which he/she may be entitled and that no other
leave (paid or unpaid), compensation, wages, bonuses, commissions and/or benefits are due to
him/her from the Company and its subsidiaries, except as specifically provided in this Separation Agreement and
Release. The undersigned furthermore affirms that he/she has no known


 









 






workplace injuries or
occupational diseases and has been provided and/or has not been denied any leave requested under
the FMLA. If any agency or court assumes jurisdiction of any such Claim, complaint or action
against any Released Party on behalf of the undersigned, the undersigned will request such agency
or court to withdraw the matter.



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



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






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


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



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






 




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




-2-









 









or any other
agency pursue Claims on his/her behalf. Further, should the EEOC or any other agency obtain
monetary relief on his/her behalf, the undersigned assigns to the Company all rights to such
relief.



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



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



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



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




-3-









 







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




	 	 	 	 	 
	FIRST SOLAR, INC.,	 	 	 
	 	 	 	 	 
	By 	 	 	 
	 	Name: 	 	 	 
	 	Title: 	 	 	 
	 	 	 	 	 	 



	 	 	 	 	 
	EMPLOYEE,	 	 	 	 
	 	 	 
	 	 	 
	[NAME]	 	 
	 	 	 




-4-











 










NON-COMPETITION AND NON-SOLICITATION AGREEMENT




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



     This Non-Competition and Non-Solicitation Agreement (“Agreement”) is effective by and between
Kenneth Michael Schultz (“Employee”) and First Solar, Inc. (“Employer”) as of August 27, 2007.



     Whereas, Employee desires to be employed by Employer and Employer has agreed to employ
Employee in the Employees current position with the Employer, or such other position as Employer
may from time to time determine;



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



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



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



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



 









 





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



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



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



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



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



     1.5. Employee and Employer acknowledge and agree that Employer has expended substantial
amounts of time, money and effort to develop business strategies, customer relationships, employee
relationships, trade secrets and goodwill and to build an effective organization and that Employer
has a legitimate business interest and right in protecting those assets as well as any similar
assets that Employer may develop or obtain. Employee and Employer acknowledge that Employer is
entitled to protect and preserve the going concern value of Employer and its business and trade
secrets to the extent permitted by law. Employee acknowledges and agrees the restrictions imposed
upon Employee under this Agreement are reasonable and necessary for the protection of Employer’s
legitimate interests, including Employer’s Confidential Information, intellectual property, trade
secrets and goodwill. Employee and Employer acknowledge that Employer is engaged in a highly
competitive



2









 







business, that Employee is expected to serve a key role with Employer, that Employee will have
access to Employer’s Confidential Information, that Employer’s business and customers and
prospective customers are located around the world, and that Employee could compete with Employer
from virtually any location in the world. Employee acknowledges and agrees that the restrictions
set forth in this Agreement do not impose any substantial hardship on Employee and that Employee
will reasonably be able to earn a livelihood without violating any provision of this Agreement.
Employee acknowledges and agrees that part of the consideration for the restrictions in this
Section 1 consists of Employer’s agreement to make severance payments as set forth in the separate
Employment Agreement between Employer and Employee.



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



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



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



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



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



3









 







extent allowed by law. Employer and Employee agree that the invalidity or unenforceability of any
provision of this Agreement shall not affect the remainder of this Agreement.



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



	 	 	 	 	 	 	 	 	 
	 	 	If to Employer:	 	C/O First Solar, Inc.	 	 
	 	 	 	 	4050 East Cotton Center Boulevard	 	 
	 	 	 	 	Building 6, Suite 68	 	 
	 	 	 	 	Phoenix, Arizona 85040	 	 
	 	 	 	 	Attention: Chief Executive Officer with a copy to the	 	 
	 	 	 	 	General Counsel	 	 
	 	 	 	 	Fax: (602) 414-9400	 	 
	 

	 	If to Employee:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Fax:	 	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 





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



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



4









 







name. All provisions, obligations, and restrictions in this Agreement shall survive
termination of Employee’s employment with Employer.



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



     10. Entire Agreement, Modification and Assignment.



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



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



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



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



5









 





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



	 	 	 	 	 	 	 	 	 	 	 
	EMPLOYER:	 	 	 	 	 	EMPLOYEE:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	First Solar, Inc.  	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	/s/  MICHAEL J.
AHEARN	 	 	 	/s/ KENNETH MICHAEL SCHULTZ	 	 
	 	 	 	 	 	 	 	 
	Its:

	CEO	 	 	 	Kenneth Michael Schultz	 	 
	 	 	 	 	 	 	 	 
	Printed Name:  Michael J.
Ahearn	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





6









 











First Solar, Inc.




Confidentiality and Intellectual Property Agreement





			
		 	Employee:      Kenneth Michael Schultz






			
		 	Place of Signing:      Phoenix, Arizona

                                    Date: August 27, 2007




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




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



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



     3. I will assign, and do hereby assign, to the Company or the Company’s designee, my entire
right, title and interest in and to all such Developments including all



 









 







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



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




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




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




     (c) Information and material that relate to the Company’s manufacturing
methods, machines, articles of manufacture, compositions, inventions, engineering
services, technological developments, “know-how”, purchasing, accounting,
merchandising and licensing;




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



2









 






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




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



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



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



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



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



     9. The invalidity or unenforceability of any provision of this Agreement, whether in whole or
in part, shall not in any way affect the validity and/or enforceability of any of the other
provisions of this Agreement. Any invalid or unenforceable provision or portion thereof shall be
deemed severable to the extent of any such invalidity or unenforceability. The restrictions
contained in this Agreement are reasonable for the purpose of preserving for the Company and its
affiliates the proprietary rights, intangible business value and Confidential Information of the
Company and its affiliates. If it is



3









 







determined by a court of competent jurisdiction that any of the restrictions or language in this
Agreement is for any reason invalid or unenforceable, the parties desire and agree that the court
revise any such restrictions or language so as to render it valid and enforceable to the fullest
extent allowed by law. If any restriction or language in this Agreement is for any reason invalid
or unenforceable and cannot by law be revised so as to render it valid and enforceable, then the
parties desire and agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by law.



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



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



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



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



     14. This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware without reference to principles of conflict



4









 







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



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



	 	 	 	 	 	 	 
	Signed:
	 	/s/ KENNETH MICHAEL SCHULTZ	 	 
	 	 	 	 	 
	 	 	Employee	 	 
	 
	 	 	 	 	 	 
	Agreed to by First Solar, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ MICHAEL J. AHEARN	 	 
	 

	 	 	 	 	 	 
	 

	 	Its:	 	CEO	 	 
	 

	 	 	 	 	 	 






5











 






     CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”)
dated as of August 27, 2007, between First Solar, Inc., a Delaware
corporation (the “Company”), and Kenneth Michael Schultz (the
“Executive”).



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




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




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




          WHEREAS the Executive entered into a change in control agreement (the “Original Change in
Control Agreement”) with the Company dated as of December 8, 2003, and the parties intend to
replace in its entirety the Original Change in Control Agreement with this Agreement;




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




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




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




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




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




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




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




 









 





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




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




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





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




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




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




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



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





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




     (i) individuals who, as of the date of this Agreement, were members of the Board (the
“Incumbent Directors”) cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the date of this Agreement whose appointment or election, or nomination for
election, by the Company’s stockholders was approved by a vote of at least a majority of
the Incumbent Directors shall be considered as though



-2-









 






such individual were an Incumbent Director, but excluding, for purposes of this
proviso, any such individual whose assumption of office after the date of this Agreement
occurs as a result of an actual or threatened proxy contest with respect to election or
removal of directors or other actual or threatened solicitation of proxies or consents by
or on behalf of any “person” (as such term is used in Section 13(d) of the Exchange Act)
(each, a “Person”) other than the Board or any Specified Shareholder;




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




     (iii) the stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company, unless such liquidation or dissolution



-3-









 







is part of a transaction or series of transactions described in Section 1(i)(ii) that
does not otherwise constitute a Change in Control; or




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



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




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




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




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




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




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




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




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




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




          (s) “Good Reason” means, without the Executive’s express written consent, the
occurrence of any one or more of the following:




          (i) any material reduction in the authority, duties or responsibilities held by the Executive
immediately prior to the Change in Control Date, but excluding for this




-4-









 







purpose an inadvertent reduction not occurring in bad faith and which is remedied by the
Company within ten business days after receipt of notice thereof given by the Executive;




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




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




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




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




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




          The Executive’s right to terminate employment for Good Reason shall not be affected by the
Executive’s incapacity due to physical or mental illness. A termination of employment by the
Executive for Good Reason for purposes of this Agreement shall be effectuated by giving the Company
written notice (“Notice of Termination for Good Reason”) of the termination setting forth
in reasonable detail the specific conduct of the Company that constitutes Good Reason and the
specific provisions of this Agreement on which the Executive relied, provided that such
notice must be delivered to the Company no later than 90 days after the occurrence of the event or
events constituting Good Reason and the Company is provided with at least 30 days following the
delivery of such Notice of Termination for Good Reason to cure such event or events. Unless the
parties agree otherwise, a termination of employment by the Executive for Good Reason shall be
effective on the 30th day following the date when the Notice of Termination for Good Reason is
given, unless the Company elects to treat such termination as effective as of an earlier date;
provided, however, that so long as an event that constitutes Good Reason occurs
during the Protection Period and the Executive delivers the Notice of Termination for Good Reason
at any time prior to 90 days following the occurrence of such event and the Company is provided
with at least 30 days following the delivery of such Notice of Termination for Good Reason to cure
such event or events, for purposes of the payments, benefits and other entitlements set forth
herein, the termination of the Executive’s employment pursuant thereto shall be deemed to occur
during the Protection Period.




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




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




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




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




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




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




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




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




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




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




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




          (ee) “Section 409A Tax” shall have the meaning set forth in Section 6.




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




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




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




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




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




          SECTION 2. Effectiveness and Term. This Agreement shall become effective immediately
after the consummation of the Company’s initial public offering (the “Effective Date”), and
the consummation of such offering shall not constitute a Change in Control, provided that
if such consummation does not occur prior to the first anniversary of the date hereof, this
Agreement shall expire and terminate and neither party to this Agreement shall have any obligations
hereunder. This Agreement shall remain in effect until the third anniversary of the Effective
Date, except that, beginning on the second anniversary of the Effective Date and on each
anniversary thereafter, the term of this Agreement shall be automatically extended for an
additional one-year period, unless the Company or the Executive provides the other party with 60
days’ prior written notice before the applicable anniversary that the term of this Agreement shall
not be so extended. Notwithstanding the foregoing, in the event of a Change in Control during the
term of this Agreement (whether the original term or the term as extended), this Agreement shall
not thereafter terminate, and the term hereof shall be extended, until the Company and its
Subsidiaries have performed all their obligations hereunder with no future performance being
possible; provided, however, that this Agreement shall only be effective with
respect to the first Change in Control that occurs during the term of this Agreement.




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




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and (c) all other outstanding equity-based, equity-related and long-term incentive awards, to
the extent not covered by the foregoing clause (a) or (b), then held by the Executive that are
unvested or subject to restrictions or forfeiture shall automatically become fully vested and all
restrictions and forfeiture provisions related thereto shall lapse.




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




          (i) Severance Pay. The Company shall pay the Executive an amount equal to two times
the sum of (A) the Executive’s Annual Base Salary (without regard to any reduction giving rise to
Good Reason) and (B) the Bonus Amount, in a lump-sum payment payable on the tenth business day
after the Release described in Section 4(a)(v) becomes effective and irrevocable (the “Release
Effective Date”); provided, however, that such amount shall be paid in lieu of,
and the Executive hereby waives the right to receive, any other cash severance payment relating to
salary or bonus continuation the Executive is otherwise eligible to receive upon termination of
employment under any severance plan, practice, policy or program of the Company or any Subsidiary.




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




          (iii) Continued Welfare Benefits. The Company shall, at its option, either (A)
continue to provide medical, life insurance, accident insurance and disability benefits to the
Executive and the Executive’s spouse and dependents at least equal to the benefits provided by the
Company and its Subsidiaries generally to other active peer executives of the Company and its
Subsidiaries or (B) pay for the Executive’s continued group health plan coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), in the case
of each of clauses (A) and (B), for a period of time commencing on the Release Effective Date and
ending on the earlier of (1) two years after the Release Effective Date and (2) 18 months after the
Termination Date; provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits described herein shall be secondary
to those provided under such other plan during such applicable period of eligibility. Any provision
of benefits pursuant to Section 4(a)(iii)(A) of this Agreement (such benefits, the
“Post-Termination In-Kind Benefits”) in one Executive Tax Year shall not affect the
Post-Termination In-Kind Benefits to be provided in any other Executive Tax Year. The right to
such Post-Termination In-Kind Benefits shall not be subject to liquidation or exchange for any
other benefit.




          (iv) Accrued Rights. The Executive shall be entitled to (A) payments of any unpaid
annual base salary, annual bonus or other amount earned or accrued through the Termination Date and
for reimbursement of any unreimbursed business expenses



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incurred through the Termination Date, (B) any payments explicitly set forth in any other
benefit plans, practices, policies and programs in which the Executive participates, and (C) any
payments the Company is or becomes obligated to make pursuant to Sections 5, 7 and 12 (the rights
to such payments, the “Accrued Rights”).




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




          (vi) Release of Claims; Non-Competition. Notwithstanding any provision of this
Agreement to the contrary, the Company shall not be obligated to make any payments or provide any
benefits described in this Section 4, other than payments or benefits with respect to the Accrued
Rights, unless and until such time as the Executive has executed and delivered a Separation
Agreement and Release (the “Release”) substantially in the form of Exhibit A hereto and
such Release has become effective and irrevocable in accordance with its terms. Notwithstanding
anything to the contrary in this Agreement, if the Release is not executed and effective on or
prior to the tenth business days prior to March 15 of the year following the occurrence of a
Qualifying Termination, the Executive shall forfeit the Executive’s rights to any payments or
benefits under Section 4.




          (b) Termination on Account of Death or Disability; Non-Qualifying Termination. (i)
The Executive’s employment shall terminate automatically upon the Executive’s death or Disability.
In the event of any termination of Executive’s employment other than a Qualifying Termination, the
Executive shall not be entitled to any additional payments or benefits from the Company under this
Agreement, other than payments or benefits with respect to the Accrued Rights.




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




          SECTION 5. Certain Additional Payments by the Company. (a) Notwithstanding anything in this Agreement to the contrary and except as set forth below,
in the event it shall be determined that any Payment that is paid or payable during the term of
this Agreement would be subject to the Excise Tax, the Executive shall be




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entitled to receive an additional payment (a “280G Gross-Up Payment”) in an amount
such that, after payment by the Executive of all taxes (and any interest or penalties imposed with
respect to such taxes), including any income and employment taxes and Excise Taxes imposed upon the
280G Gross-Up Payment, the Executive retains an amount of the 280G Gross-Up Payment equal to the
Excise Tax imposed upon such Payments. The Company’s obligation to make 280G Gross-Up Payments
under this Section 5 shall not be conditioned upon the Executive’s termination of employment and
shall survive and apply after the Executive’s termination of employment. Notwithstanding the
foregoing provisions of this Section 5(a), if it shall be determined that the Executive is entitled
to a 280G Gross-Up Payment, but that the Payments do not exceed 110% of the greatest amount that
could be paid to the Executive without giving rise to any Excise Tax (the “Safe Harbor
Amount”), then no 280G Gross-Up Payment shall be made to the Executive and the amounts payable
under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the
Safe Harbor Amount. The reduction of the amounts payable hereunder shall be made by first reducing
the payments under Section 4(a), unless an alternative method of reduction is elected by the
Executive.




          (b) Subject to the provisions of Section 5(c), all determinations required to be made under
this Section 5, including whether and when a 280G Gross-Up Payment is required, the amount of such
280G Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall
be made in accordance with the terms of this Section 5 by a nationally recognized certified public
accounting firm that shall be designated by the Executive (the “Accounting Firm”). The
Accounting Firm shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the Executive that there has been a
Payment or such earlier time as is requested by the Company. For purposes of determining the
amount of any 280G Gross-Up Payment, the Executive shall be deemed to pay Federal income tax at the
highest marginal rate applicable to individuals in the calendar year in which any such 280G
Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest
marginal rates applicable to individuals in the state or locality of the Executive’s residence or
place of employment in the calendar year in which any such 280G Gross-Up Payment is to be made, net
of the maximum reduction in Federal income taxes that can be obtained from deduction of state and
local taxes, taking into account limitations applicable to individuals subject to Federal income
tax at the highest marginal rate. All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be
paid by the Company to the Executive within five business days of the receipt of the Accounting
Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the
Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting
Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the
application of the Excise Tax, at the time of the initial determination by the Accounting Firm
hereunder, it is possible that the amount of the 280G Gross-Up Payment determined by the Accounting
Firm to be due to the Executive, consistent with the calculations required to be made hereunder,
will be lower than the amount actually due (an “Underpayment”). In the event the Company
exhausts its remedies pursuant to Section 5(c) and the Executive thereafter is required to



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make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be paid by the Company to the
Executive within five business days of the receipt of the Accounting Firm’s determination.




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



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case may be, any other issue raised by the Internal Revenue Service or any other taxing
authority.




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




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




          SECTION 6. Section 409A. It is the intention of the Company and the Executive that
the provisions of this Agreement comply with Section 409A of the Code, and all provisions of this
Agreement shall be construed and interpreted in a manner consistent with Section 409A of the Code.
To the extent necessary to avoid imposition of any additional tax or interest penalties under
Section 409A (such tax and interest penalties, a “Section 409A Tax”), notwithstanding the
timing of payment provided in any other Section of this Agreement, the timing of any payment,
distribution or benefit pursuant to this Agreement shall be subject to a six-month delay in a
manner consistent with Section 409A(a)(2)(B)(i) of the Code.




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



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otherwise expressly provided for in this Agreement, such amounts shall not be reduced whether
or not the Executive obtains other employment. Notwithstanding anything to the contrary in this
Agreement, any reimbursement under this Section 7 shall be made promptly and no later than the end
of your tax year (the “Executive Tax Year”) following the Executive Tax Year in which the
expense is incurred. The amount of expenses eligible for reimbursement under this Section 7 during
an Executive Tax Year shall not affect the expenses eligible for reimbursement in another Executive
Tax Year. No right to reimbursement under this Section 7 shall be subject to liquidation or
exchange for any other payment or benefit.




          (b) The Company shall reimburse, upon the Executive’s demand, any and all reasonable legal
fees and expenses that the Executive may incur in good faith as a result of any contest, dispute or
proceeding (regardless of whether formal legal proceedings are ever commenced and regardless of the
outcome thereof and including all stages of any contest, dispute or proceeding) by the Company, the
Executive or any other Person with respect to the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof (including as a
result of any contest by the Executive regarding the amount of any payment owed pursuant to this
Agreement), and shall indemnify and hold the Executive harmless, on an after-tax basis, for any tax
(including Excise Tax) imposed on the Executive as a result of payment by the Company of such legal
fees and expenses. Notwithstanding anything to the contrary in this Agreement, no tax gross up
payments shall be made by the Company under this Section 7 following the end of the Executive Tax
Year following the Executive Tax Year in which the related taxes are remitted




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




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




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




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




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




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




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




          (c) The parties hereto irrevocably consent to the service of any and all process in any suit,
action or proceeding arising out of or relating to this Agreement by



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the mailing of copies of such process to such party at such party’s address specified in
Section 18.




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




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




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




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




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





-15-











 




acceptable manner in order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.




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




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




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




	 	 	 	 	 	 	 
	 

	 	If to the Company:
	 	First Solar, Inc.
	 	 
	 

	 	 	 	4050 East Cotton Center Boulevard	 	 
	 

	 	 	 	Building 6, Suite 68	 	 
	 

	 	 	 	Phoenix, Arizona 85040	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Attention: Chief Executive Officer with a copy to the	 	 
	 

	 	 	 	General Counsel	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Fax: 602-414-9400	 	 
	 

	 	If to the Executive:
	 	                                        	 	 
	 

	 	 	 	                                        	 	 
	 

	 	 	 	                                        	 	 
	 
	 

	 	 	 	Fax:	 	 





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




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




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




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




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




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




	 	 	 	 	 
	FIRST SOLAR, INC.,

 	 	 
	By  	/s/
MICHAEL J. AHEARN
 	 	 
	 	Name:  	Michael J. Ahearn 	 	 
	 	Title:  	Chief Executive
Officer and Chairman 	 	 
	 
	EXECUTIVE,

 	 	 
	 	/s/
KENNETH MICHAEL SCHULTZ
 	 	 
	 	Kenneth Michael Schultz 	 	 
	 	 	 	 



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	 	SEPARATION AGREEMENT AND RELEASE





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



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













 






of any such Claim, complaint or action against any Released Party on behalf of the undersigned, the
undersigned will request such agency or court to withdraw the matter.



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



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





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


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



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






 




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




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other agency obtain monetary relief on his/her behalf, the undersigned assigns to the Company all
rights to such relief.



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



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



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



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




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




	 	 	 	 	 
	FIRST SOLAR, INC.,

 	 	 
	By  	
 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	EMPLOYEE,	 	 
	 
	 
	[NAME] 	 	 
	Date 	 	 
	Signed: 	 	 	 
	 




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