Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT (this “Agreement”)
is made as of October 28, 2009 between GT Solar International, Inc.,
a Delaware corporation (the “Company”), and Thomas Gutierrez (“Executive”).


 


In consideration of the
mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:


 


1.                                       Employment.  The Company
shall employ Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the date of this Agreement and ending as provided in Section 4
hereof (the “Employment Period”).


 


2.                                       Position and Duties.


 


(a)                                  During the Employment Period, Executive
shall serve as the President and Chief Executive Officer of the Company and
shall have the normal duties, responsibilities, functions and authority of the
President and Chief Executive Officer. 
During the Employment Period, Executive shall render such
administrative, financial and other executive and managerial services to the
Company and its Subsidiaries which are consistent with Executive’s position as
the Company’s board of directors (the “Board”) may from time to time
direct.


 


(b)                                 During the Employment Period, Executive
shall report to the Board and shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs of
the Company and its Subsidiaries. 
Executive shall perform his duties, responsibilities and functions to
the Company and its Subsidiaries hereunder to the best of his abilities in a
diligent, trustworthy, professional and efficient manner and shall comply with
the Company’s and its Subsidiaries’ policies and procedures in all material
respects.  In performing his duties and
exercising his authority under the Agreement, Executive shall support and
implement the business and strategic plans approved from time to time by the
Board and shall support and cooperate with the Company’s and its Subsidiaries’
efforts to expand their businesses and operate profitably and in conformity
with the business and strategic plans approved by the Board.  So long as Executive is employed by the
Company, Executive shall not, without the prior written consent of the Board,
accept other employment or perform other services for compensation.  During the Employment Period, Executive shall
not serve as an officer or director of, or otherwise perform services for
compensation for, any other entity without the prior written consent of the
Board; provided that Executive may (i) continue to serve as a director of
Verso Paper Corp. and PhytoChem and receive compensation for such service, and (ii) serve
as a director of an officer or director of or otherwise participate in solely
educational, welfare, social, religious, sporting club and civic organizations
so long as such activities do not interfere with Executive’s employment with
the Company and its Subsidiaries.


 

















 


(c)                                  For purposes of this Agreement, “Subsidiaries”
shall mean any corporation or other entity of which the securities or other
ownership interests having the voting power to elect a majority of the board of
directors or other governing body are, at the time of determination, owned by
the Company, directly or through one of more Subsidiaries.


 


3.                                       Compensation and Benefits.


 


(a)                                  During the Employment Period, Executive’s
base salary shall be $507,500 per annum or such higher rate as the Compensation
Committee of the Board (the “Compensation Committee”) may determine from
time to time (as adjusted from time to time, the “Base Salary”), which
salary shall be payable by the Company in proportionate, bi-weekly installments
and in accordance with the Company’s general payroll practices in effect from
time to time.  For any partial years of
employment during the Employment Period, the Base Salary shall be pro rated on
an annualized basis.  In addition, during
the Employment Period, Executive shall be entitled to participate in all of the
Company’s employee benefit programs (other than bonuses and other incentive
programs, except as otherwise (i) provided herein or (ii) determined
by the Board) for which senior executive employees of the Company and its
Subsidiaries are generally eligible, and Executive shall be entitled to four (4) weeks
of paid vacation and paid leave for illness each calendar year in accordance
with the Company’s policies.


 


(b)                                 In addition to the Base Salary:


 


(i)                                     During the Employment Period, Executive
shall be entitled to participate in the Executive Incentive Program of the
Company, the terms of which for fiscal year 2010 are attached as Exhibit A
hereto (the “EIP”), under which Executive may be eligible to receive a
bonus based upon the achievement of such performance targets and other
conditions as stated in the EIP; provided,  however, that
Executive must execute a participant agreement with the Company prior to being
deemed a participant in the EIP. 
Executive’s “Participation Date” under the EIP shall be the date
hereof.  Notwithstanding the foregoing or
anything to the contrary contained in the EIP, Executive shall be entitled to a
minimum cash bonus under the EIP with respect to the Company’s fiscal year 2010
in an amount equal to $507,500/365 multiplied by the number of days during
fiscal year 2010 during which Executive was continuously employed by the
Company, so long as Executive is employed on the last day of fiscal 2010.  Such cash bonus shall be payable to Executive
on the same date that bonus payments are made senior executive employees under
the fiscal year 2010 EIP.  The EIP, if
any, for future years shall be determined by the Compensation Committee of the
Board of Directors.  While the Company
does not guarantee the existence or the terms and conditions of any incentive
plan in future years, participation in any such plans, if any, shall be
extended to Executive to an extent commensurate with Executive’s position.


 


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(c)                                  Pursuant the Company’s 2008 Equity
Incentive Plan (the “Plan”), 
Executive will receive an option (the “Option”) to purchase
shares of common stock of the Company and restricted stock units (“RSUs”).  The number of shares of Company common stock
underlying the Option shall be 784,314 and the number of shares of Company
common stock underlying the RSUs shall be 400,000.  The terms of the Option will be as set forth
in the form of Option Agreement, the terms of the RSUs shall be set forth in
the form of Restricted Stock Unit Agreement and each shall be subject to the
Plan, each as attached hereto as Exhibits B-1, B-2, and B-3
respectively.


 


(d)                                 The Company shall also pay Executive upon
the date of execution of this Agreement the sum of $120,000 in recognition of
expenses he will incur in connection with his relocation and commencement of
employment hereunder and an additional $120,000 once Executive completes his
relocation.  Executive shall submit documentation
supporting the expenses associated with his relocation and commencement of
employment hereunder as soon as reasonably practicable following incurrence of
such expenses.  To the extent
documentation that is submitted to the Company totals less than $240,000, the
amount by which $240,000 exceeds the amount of such documented expenses will be
reported by the Company as income to Executive.


 


(e)                                  During the Employment Period, the Company
shall reimburse Executive for all reasonable business expenses incurred by him
in the course of performing his duties and responsibilities under this
Agreement which are consistent with the Company’s policies in effect from time
to time with respect to travel, entertainment and other business expenses,
subject to the Company’s requirements with respect to reporting and
documentation of such expenses.


 


(f)                                    All amounts payable to Executive
hereunder shall be subject to all required and customary withholding by the
Company and its Subsidiaries.


 


4.                                       Termination.


 


(a)                                  The Employment Period shall begin on the
date of this Agreement and continue until the Employment Period is terminated
by (i) Executive’s resignation (with or without Good Reason, as defined
below) or death or Disability (as defined below) as provided herein or (ii) the
Company at any time prior to such date with or without Cause (as defined
below).  Except as otherwise provided
herein, any termination of the Employment Period by the Company shall be
effective as specified in a written notice from the Company to Executive; provided
that, the Company shall provide at least thirty (30) days advanced notice
to Executive in the event the Company terminates Executive’s employment without
Cause.  Executive shall provide at least
thirty (30) days advanced written notice of Executive’s resignation of
employment, with or without Good Reason (as defined below), to the Board.  For the avoidance of doubt, subject to the
terms and provisions of this Agreement, including this Section 4,
the Employment Period may be terminated by either the Company or Executive at
any time.


 


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(b)                                 If the Employment Period is terminated by
the Company without Cause, or as a result of Executive’s resignation with Good
Reason, Executive shall be entitled to:


 


(i)                                     continue to receive his Base Salary (paid
in accordance with the Company’s general payroll practices in effect on the
termination date) as special severance payments from the date of termination
for a period of  twelve (12) months
thereafter (the “Severance Period”);


 


(ii)                                  to the extent permitted by the applicable
benefit plans, continued participation during the Severance Period in health
and dental insurance plans sponsored by the Company on terms and conditions in
effect at the time of such termination (including cost sharing, if applicable)
substantially similar to those applicable to employees of the Company
generally;


 


provided, however, Executive shall be
entitled to the payments and benefits described in clauses (b)(i) and (b)(ii) of
this Section 4(b) if and only if Executive has executed and
delivered to the Company the General Release substantially in form and
substance as set forth in  Exhibit C
attached hereto, and the General Release has become effective and no longer
subject to revocation no later than 60 days following the termination of the
Employment Period and not then been breached (the “Initial Severance
Conditions”), and only so long as Executive has not revoked or breached the
provisions of the General Release and does not apply for unemployment
compensation chargeable to the Company or any Subsidiary during the Severance
Period.  Any amounts payable or benefits
to be provided  pursuant to this Section 4(b) shall
not be paid or provided  until the
first scheduled payment date following the satisfaction of the Initial Severance
Conditions (with the first such payment being in an amount equal to the total
amount to which Executive would otherwise have been entitled during the period
following the date of termination if such deferral had not been required); provided,
however, any such amounts that constitute “nonqualified deferred compensation”
within the meaning of Internal Revenue Code Section 409A and the
regulations and guidance promulgated thereunder (“Section 409A”)
shall not be paid or provided until the 60th day following such termination to
the extent necessary to avoid adverse tax consequences under Section 409A
and if such payments or benefits  are
required to be so deferred, the first payment shall be in an amount equal to
the total amount to which Executive would otherwise have been entitled during
the period following the date of termination if such deferral had not been
required; provided, further, that if Executive is a “specified employee”
within the meaning of Section 409A, any amounts payable to Executive under
this Section 4(b) during the first six months and one day
following the date of termination pursuant to this Section 4(b) that
constitute nonqualified deferred compensation within the meaning of Section 409A
shall not be paid or provided until the date six months and one day following
such termination to the extent necessary to avoid adverse tax consequences
under Section 409A, and if such payments are required to be so deferred,
the first payment shall be in an amount equal to the total amount to which
Executive would otherwise have been entitled to during the period following the
date of termination if such deferral had not been required.  Executive shall not be entitled to any other
salary, compensation or benefits after termination of the Employment Period,
except as specifically provided for in the Company’s employee benefit plans or
as otherwise expressly required by applicable law.  Following the execution and delivery by
Executive of the General Release substantially in form and substance as set
forth in  


 


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Exhibit C attached hereto, the Company agrees not
to disparage Executive; provided, however, the Company shall be permitted to
pursue any and all legal remedies against Executive to the extent the Company
reasonably believes that Executive failed to comply with the law, this
Agreement, the Company’s Code of Conduct, the Company’s employee handbook or
other policies applicable to its employees.


 


(c)                                  If the Employment Period is (i) terminated
by the Company for Cause or (ii) terminated by the Executive without Good
Reason (as defined below), Executive shall only be entitled to receive his Base
Salary and benefits through the date of termination and shall not be entitled
to any other salary, compensation or benefits from the Company or its
Subsidiaries thereafter, except as otherwise specifically provided for under
the Company’s employee benefit plans or as otherwise expressly required by
applicable law.  The termination of the
Employment Period for Cause shall preclude Executive’s resignation with Good
Reason.  If this Agreement is terminated
due to the Executive’s death or Disability, Executive shall only be entitled to
receive (a) his Base Salary through the date of termination, (b) any
benefits the Executive’s eligible family members are entitled to under COBRA,
and (c) at the sole discretion of the Board, a pro-rata portion (based on
the number of days Executive was employed during the fiscal year in which the
death or disability occurred) of any annual target bonus (other than under the
EIP) Executive would have been entitled to for such fiscal year, had the
Employment Period not been terminated during such year, payable at the time
Executive would have been entitled to receive such bonus had the Employment
Period not been terminated.  The Board
shall retain full discretionary authority to determine whether any such bonus
is paid, and the size thereof, pursuant to this Section 4(c) in
effect based upon the Company’s performance as well as Executive’s contribution
toward business objectives as demonstrated by the achievement of
functional/individual goals.


 


(d)                                 Except as otherwise expressly provided
herein, all of Executive’s rights to salary, bonuses, employee benefits and
other compensation hereunder which would have accrued or become payable after
the termination of the Employment Period shall cease upon such termination,
other than those expressly required under applicable law (such as COBRA).  Except as provided in Section 20(d),
the Company may offset any amounts Executive owes it, to the extent agreed by
the Company and Executive or determined pursuant to the arbitration as set
forth in Section 17 or by a final order of a court of competent
jurisdiction, against any amounts the Company owes Executive hereunder.


 


(e)                                  Effective upon the termination of the
Employment Period for any reason, including termination by the Company with or
without Cause or Executive’s resignation with or without Good Reason, Executive
shall resign from all director, officer and other fiduciary positions Executive
may then hold with the Company and its Subsidiaries and shall deliver to the
Board a resignation letter to such effect on the date of such termination.


 


(f)                                    For purposes of this Agreement, “Cause”
shall mean with respect to Executive one or more of the following:  (i) the commission of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving dishonesty, disloyalty or fraud with respect to the Company or any of
its Subsidiaries or any of their customers or suppliers, (ii) repeatedly
reporting to work under the influence of alcohol or illegal drugs, the use of
illegal drugs in the workplace or other repeated conduct causing the Company or
any of its 


 


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Subsidiaries substantial public disgrace or disrepute
or substantial economic harm, (iii) substantial and repeated failure to
perform duties as reasonably directed by the Board which is not cured to the
Company’s reasonable satisfaction within thirty (30) days after written notice
thereof to Executive, (iv) any act or omission aiding or abetting a
competitor, supplier or customer of the Company or any of its Subsidiaries to
the material disadvantage or detriment of the Company and its Subsidiaries, (v) breach
of fiduciary duty, gross negligence or willful misconduct with respect to the
Company or any of its Subsidiaries, (vi) any breach of the Proprietary
Rights and Confidentiality Agreement, dated as of the date hereof, between the
Company and GT Solar Incorporated, or any material breach of this Agreement or
any other agreement between the Company and Executive, or (vii) any other
material breach of this Agreement which is not cured to the Company’s
reasonable satisfaction within thirty (30) days after written notice
thereof to Executive.


 


(g)                                 For purposes of this Agreement, “Disability”
shall mean Executive’s inability to perform the essential duties,
responsibilities and functions of his position with the Company and its
Subsidiaries for a period of ninety (90) consecutive days or for a total
of 180 days during any 12-month period as a result of any mental or
physical illness, disability or incapacity even with reasonable accommodations
for such illness, disability or incapacity provided by the Company and its
Subsidiaries or if providing such accommodations would be unreasonable, all as
determined by an independent medical doctor chosen by the Board and reasonably
acceptable to Executive or his personal representative.  Executive shall cooperate in all respects
with the Company if a question arises as to whether he has become disabled
(including, without limitation, submitting to reasonable examinations by one or
more medical doctors and other health care specialists selected by the Company
and authorizing such medical doctors and other health care specialists to
discuss Executive’s condition with the Company).


 


(h)                                 For purposes of this Agreement, “Good
Reason” shall mean if Executive resigns from employment with the Company
and its Subsidiaries prior to the end of the Employment Period as a result of
the occurrence of one or more of the following events:  (i) the Company reduces the amount of
the Base Salary (other than as a result of a general across-the-board salary
reduction applicable to all senior executives of the Company) or elects to
eliminate the EIP without permitting Executive to participate in an annual
incentive bonus plan in place of the EIP which offers a potential bonus payment
comparable to that earnable at 100% of plan target by Executive under the EIP, (ii) the
Company changes Executive’s title and reduces his responsibilities or authority
in a manner materially inconsistent with that of the position of President and
Chief Executive Officer or (iii) the Company changes Executive’s place of
work to a location more than 50 miles outside of Merrimack, New Hampshire; provided
that in order for Executive’s resignation for Good Reason to be effective
hereunder, Executive must provide written notice to the Company stating Executive’s
intent to resign for Good Reason and the grounds therefor within ninety
(90) days after such grounds exist and grant the Company thirty
(30) days from receipt of such notice to remedy or otherwise remove the
grounds supporting Executive’s resignation for Good Reason.


 


5.                                       Executive’s Representations. 
Executive hereby represents and warrants to the Company that (i) the
execution, delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Executive is a party
or by which he is bound, 


 


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(ii) Executive is not a party to or bound by any
employment agreement, noncompete agreement or confidentiality agreement with
any other person or entity and (iii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms.  Executive hereby acknowledges and represents
that he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and
conditions contained herein.


 


6.                                       Survival.  The rights
and obligations of the parties under this Agreement shall survive as provided
herein or if necessary or desirable to accomplish the purposes of other
surviving provisions following the termination of Executive’s employment with
the Company, regardless of the manner of or reasons for such termination.


 


7.                                       Notices.  All notices,
requests and other communications hereunder must be in writing and will be
deemed to have been duly given only if delivered personally against written
receipt or by facsimile transmission against facsimile confirmation or mailed
by prepaid first class certified mail, return receipt requested, or mailed by
overnight courier prepaid, to the parties hereto at the following addresses or
facsimile numbers:


 


Notices to Executive:



Thomas Gutierrez

GT Solar International, Inc.

243 Daniel Webster Highway 

Merrimack, NH 03054

Facsimile:  (603) 595-6993


 


Notices to the Company:   



GT Solar International, Inc.

243 Daniel Webster Highway

Merrimack, NH 03054

Facsimile:  (603) 595-6993

Attn:                    General Counsel 



With a copy to:   



Kirkland & Ellis LLP

777 South Figueroa Street

Los Angeles, CA 90017

Facsimile:  (213) 808-8229

Attn:                    Eva H. Davis


 


All such notices, requests
and other communications will (a) if delivered personally to the address
as provided in this Section 7 or by facsimile transmission to the
facsimile number as provided for in this Section 7, be deemed given
on the day so delivered, or, if delivered after 5:00 p.m. local time or on
a day other than a Saturday, Sunday or any day on which banks 


 


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located in the State of
New York are authorized or obligated to close (a “Business Day”), then
on the next proceeding Business Day, (b) if delivered by mail in the
manner described above to the address as provided in this Section 7,
be deemed given on the earlier of the third Business Day following mailing or
upon receipt and (c) if delivered by overnight courier to the address as
provided for in this Section 7, be deemed given on the earlier of
the first Business Day following the date sent by such overnight courier or
upon receipt, in each case regardless of whether such notice, request or other
communication is received by any other Person to whom a copy of such notice is
to be delivered pursuant to this Section 7.  Any party hereto from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other party
hereto.


 


8.                                       Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any action in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.


 


9.                                       Complete Agreement. 
This Agreement, those documents expressly referred to herein and other
documents of even date herewith embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.


 


10.                                 No Strict Construction. 
The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any party.


 


11.                                 Counterparts. 
This Agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.


 


12.                                 Successors and Assigns. 
This Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive, the Company and their respective heirs, successors
and assigns, except that Executive may not assign his rights or delegate his
duties or obligations hereunder without the prior written consent of the
Company.


 


13.                                 Choice of Law. 
All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by, and construed in accordance with, the laws of the
State of New Hampshire, without giving effect to any choice of law or conflict
of law rules or provisions (whether of the State of New Hampshire or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New Hampshire.  In furtherance of the foregoing, the internal
law of the State of New Hampshire shall control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even
though under that jurisdiction’s choice 


 


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of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily apply.


 


14.                                 Amendment and Waiver. 
The provisions of this Agreement may be amended or waived only with the
prior written consent of the Company and Executive, and no course of conduct or
course of dealing or failure or delay by any party hereto in enforcing or
exercising any of the provisions of this Agreement (including, without limitation,
the Company’s right to terminate the Employment Period for Cause) shall affect
the validity, binding effect or enforceability of this Agreement or be deemed
to be an implied waiver of any provision of this Agreement.


 


15.                                 Insurance.  The Company
may, at its discretion, apply for and procure in its own name and for its own
benefit life and/or disability insurance on Executive in any amount or amounts
considered advisable.  Executive agrees
to cooperate in any medical or other examination, supply any information and
execute and deliver any applications or other instruments in writing as may be
reasonably necessary to obtain and constitute such insurance.  Executive hereby represents that he has no
reason to believe that his life is not insurable at rates now prevailing for
healthy men of his age.


 


16.                                 Indemnification and Reimbursement of
Payments on Behalf of Executive.  The Company
and its Subsidiaries shall be entitled to deduct or withhold from any amounts
owing from the Company or any of its Subsidiaries to Executive any federal,
state, local or foreign withholding taxes, excise tax or employment taxes (“Taxes”)
imposed with respect to Executive’s compensation or other payments from the
Company or any of its Subsidiaries or Executive’s ownership interest in the
Company (including, without limitation, wages, bonuses, dividends, the receipt
or exercise of equity options and/or the receipt or vesting of restricted
equity).  In the event the Company or any
of its Subsidiaries does not make such deductions or withholdings, Executive
shall indemnify the Company and its Subsidiaries for any amounts paid with
respect to any such Taxes, together with any interest, penalties and related
expenses thereto.


 


17.                                 Arbitration. 
Each party hereto agrees that the arbitration procedure set forth in Exhibit D
hereto shall be the sole and exclusive method for resolving any claim or
dispute (“Claim”) arising out of or relating to the rights and
obligations acknowledged and agreed to in this Agreement and the employment of
Executive by the Company and its Subsidiaries (including, without limitation,
disputes and claims regarding employment discrimination, sexual harassment,
termination and discharge), whether such Claim arose or the facts on which such
Claim is based occurred prior to or after the execution and delivery of
adoption of this Agreement.  Except as
set forth in Exhibit D hereto, the parties agree that the result of
any arbitration hereunder shall be final, conclusive and binding on all of the
parties.  Nothing in this Section 17
shall prohibit a party hereto from instituting litigation to enforce any Final
Determination (as defined in Exhibit D hereto).


 


18.                                 Corporate Opportunity. 
Executive shall submit to the Board all business, commercial and
investment opportunities, or offers presented to Executive or of which
Executive becomes aware at any time during the Employment Period which relate
to the business of the Company or its Subsidiaries (“Corporate Opportunities”).  Unless approved by the Board, 


 


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Executive shall not accept or pursue, directly or
indirectly, any Corporate Opportunities on Executive’s own behalf.


 


19.                                 Executive’s Cooperation. 
During the Employment Period and thereafter, Executive shall cooperate
with the Company and its Subsidiaries in any internal investigation, any
administrative, regulatory or judicial investigation or proceeding or any
dispute with a third party as reasonably requested by the Company (including,
without limitation, Executive being available to the Company upon reasonable
notice for interviews and factual investigations, appearing at the Company’s
request to give testimony without requiring service of a subpoena or other
legal process, volunteering to the Company all pertinent information and
turning over to the Company all relevant documents which are or may come into
Executive’s possession, all at times and on schedules that are reasonably
consistent with Executive’s other permitted activities and commitments).  In the event the Company requires Executive’s
cooperation in accordance with this Section 19, the Company shall
reimburse Executive solely for reasonable travel expenses (including lodging
and meals) upon submission of receipts.


 


20.                                 409A Provisions. 
Notwithstanding any other provision herein:


 


(a)          The parties hereto intend that payments and benefits
under this Agreement comply with or be exempt from Section 409A and,
accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith or exempt therefrom.  In no event whatsoever shall the Company be
liable for any additional tax, interest or penalty that may be imposed on
Executive by Section 409A or damages for failing to comply with Section 409A.


 


(b)         For all purposes of this Agreement, references herein
to “termination,” “termination of the Employment Period,” “resignation” or
other terms of similar import shall in each case mean a “separation from
service” within the meaning of Section 409A.


 


(c)          For purposes of Section 409A, Executive’s right
to receive any installment payment pursuant to this Agreement shall be treated
as a right to receive a series of separate and distinct payments.


 


(d)         In no event shall any payment under this Agreement
that constitutes nonqualified deferred compensation subject to Section 409A,
as determined by the Board of Directors in its sole discretion, be subject to
offset unless otherwise permitted by Section 409A.


 


(e)          To the extent that reimbursements or other in-kind
benefits under this Agreement constitute “nonqualified deferred compensation”
for purposes of Code Section 409A, (i) all expenses or other
reimbursements hereunder shall be made on or prior to the last day of the
taxable year following the taxable year in which such expenses were incurred by
Executive, (ii) any right to reimbursement or in-kind benefits shall not
be subject to liquidation or exchange for another benefit, and (iii) no
such reimbursement, expenses eligible for reimbursement, or in-kind benefits
provided in any taxable year shall in any way affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other taxable year.


 


*    *   
*    *    *


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the date first written above.


 


	
   

  	
  GT SOLAR
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hoil Kim

  
	
   

  	
  Name: Hoil
  Kim

  
	
   

  	
  Its: Vice
  President and General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas
  Gutierrez

  
	
   

  	
  Thomas Gutierrez

  



 


[Signature
page to Gutierrez Employment Agreement]


 

















 


EXHIBIT
A


 


FISCAL
YEAR 2010 EXECUTIVE INCENTIVE PROGRAM


 


A-1

















 


 


EXHIBIT
B-1


 


FORM OF
OPTION AGREEMENT


 


B-1

















 


 


EXHIBIT
B-2


 


FORM OF
RESTRICTED STOCK UNIT AGREEMENT


 


B-2

















 


 


EXHIBIT
B-3


 


2008
EQUITY INCENTIVE PLAN


 


B-3
















 


EXHIBIT
C


 


GENERAL
RELEASE


 


I, Thomas Gutierrez, in
consideration of and subject to the performance by GT Solar International, Inc.,
a Delaware corporation (together with its subsidiaries, the “Company”),
of its obligations under the Employment Agreement, dated as of  October 28, 2009 between the Company and
me (the “Agreement”), do hereby release and forever discharge as of the
date hereof (on behalf of myself, my heirs, executors, administrators and
assigns) the Company and its affiliates and all present and former directors,
officers, agents, representatives, employees, successors and assigns of the
Company and its affiliates and the Company’s direct or indirect owners
(collectively, the “Released Parties”) to the extent provided below.


 


1.                                       I understand that any payments or
benefits paid or granted to me under Section 4(b) of the Agreement
represent, in part, consideration for signing this General Release and are not
salary, wages or benefits to which I was already entitled.  I understand and agree that I will not
receive the payments and benefits specified in Section 4(b) of the
Agreement unless I execute this General Release and do not revoke this General
Release within the time period permitted hereafter or breach this General
Release.  Such payments and benefits will
not be considered compensation for purposes of any employee benefit plan,
program, policy or arrangement maintained or hereafter established by the
Company or its affiliates.  I also
acknowledge and represent that I have received all payments and benefits that I
am entitled to receive (as of the date hereof) by virtue of any employment by
the Company, except as set forth on Exhibit A hereto.


 


2.                                       Except as provided in paragraph 4 below
and except for the provisions of the Agreement which expressly survive the
termination of my employment with the Company, I knowingly and voluntarily (for
myself, my heirs, executors, administrators and assigns) release and forever
discharge the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, claims for costs and attorneys’ fees, or liabilities of
any nature whatsoever in law and in equity, both past and present (through the
date this General Release becomes effective and enforceable) and whether known
or unknown, suspected, or claimed against the Company or any of the Released
Parties which I, my spouse, or any of my heirs, executors, administrators or
assigns, may have, which arise out of or are connected with my employment with,
or my separation or termination from, the Company (including, but not limited
to, any allegation, claim or violation, arising under:  Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act
of 1967, as amended (including the Older Workers Benefit Protection Act) (the “ADEA”);
the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of
1990; the Family and Medical Leave Act of 1993; the Worker Adjustment
Retraining and Notification Act; the Employee Retirement Income Security Act of
1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or
their state or local counterparts; or under any other federal, state or local
civil or human rights law, or under any other local, state, or federal law,
regulation or ordinance; or under any public policy, contract or tort, or under
common law; or arising under any policies, practices or procedures of 


 


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the Company; or any claim
for wrongful discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including
attorneys’ fees incurred in these matters) (all of the foregoing collectively
referred to herein as the “Claims”).


 


3.                                       I represent that I have made no
assignment or transfer of any right, claim, demand, cause of action, or other
matter covered by paragraph 2 above.


 


4.                                       I agree that this General Release does
not waive or release any rights or claims that I may have under the ADEA which
arise after the date I execute this General Release.  I acknowledge and agree that my separation
from employment with the Company shall not serve as the basis for any claim or
action (including, without limitation, any claim under the ADEA).


 


5.                                       I agree that I am waiving all rights to
sue or obtain equitable, remedial or punitive relief from any or all Released
Parties of any kind whatsoever (including, without limitation, reinstatement,
back pay, front pay, attorneys’ fees and any form of injunctive relief).  Notwithstanding the above, I further
acknowledge that I am not waiving and am not being required to waive any right
that cannot be waived under law (including, without limitation, the right to
file an administrative charge or participate in an administrative investigation
or proceeding); provided that I disclaim and waive any right to share or participate
in any monetary award resulting from the prosecution of such charge or
investigation or proceeding.


 


6.                                       In signing this General Release, I
acknowledge and intend that it shall be effective as a bar to each and every
one of the Claims hereinabove mentioned or implied.  I expressly consent that this General Release
shall be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and unanticipated
Claims), if any, as well as those relating to any other Claims hereinabove
mentioned or implied.  I acknowledge and
agree that this waiver is an essential and material term of this General
Release and that without such waiver the Company would not have agreed to the
terms of the Agreement.  I further agree
that in the event I should bring a Claim seeking damages against the Company or
any other Released Party, or in the event I should seek to recover against the
Company or any other Released Party in any Claim brought by a governmental
agency on my behalf, this General Release shall serve as a complete defense to
such Claims to the maximum extent permitted by law.  I further agree that I am not aware of any
pending claim of the type described in paragraph 2 above as of the execution of
this General Release.


 


7.                                       I agree that neither this General
Release, nor the furnishing of the consideration for this General Release,
shall be deemed or construed at any time to be an admission by the Company, any
other Released Party or myself of any improper or unlawful conduct.


 


8.                                       I agree that I will forfeit all amounts
payable by the Company pursuant to the Agreement if I challenge the validity of
this General Release.  I also agree that
if I violate this General Release by suing the Company or the other Released
Parties, I will pay all costs and expenses of defending against the suit
incurred by the Released Parties, including reasonable attorneys’ fees, and
return all payments received by me pursuant to the Agreement.


 


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9.                                       I agree that this General Release and the
Agreement are confidential and agree not to disclose any information regarding
the terms of this General Release or the Agreement, except to my immediate
family and any tax, legal or other counsel I have consulted regarding the
meaning or effect hereof or as required by law, and I will instruct each of the
foregoing not to disclose the same to anyone.


 


10.                                 I agree to reasonably cooperate with the
Company in any internal investigation, any administrative, regulatory, or
judicial proceeding or any dispute with a third party. I understand and agree
that my cooperation may include, but not be limited to, making myself available
to the Company and its Subsidiaries upon reasonable notice for interviews and
factual investigations; appearing at the Company’s request to give testimony
without requiring service of a subpoena or other legal process; volunteering to
the Company and its Subsidiaries pertinent information; and turning over to the
Company all relevant documents which are or may come into my possession all at
times and on schedules that are reasonably consistent with my other permitted
activities and commitments. I understand that in the event the Company asks for
my cooperation in accordance with this provision, the Company shall reimburse
me solely for reasonable travel expenses, (including lodging and meals), upon
my submission of receipts.


 


11.                                 I agree not to disparage the Company, its
and its Subsidiaries’ past and present investors, officers, directors or
employees or its affiliates and to keep all confidential and proprietary
information about the past or present business affairs of the Company and its
Subsidiaries and its affiliates confidential unless a prior written release
from the Company is obtained.  I further
agree that as of the date hereof, I have returned to the Company any and all
property, tangible or intangible, relating to its and its Subsidiaries’
businesses, which I possessed or had control over at any time (including, but
not limited to, company-provided credit cards, building or office access cards,
keys, computer equipment, manuals, files, documents, records, software,
customer data base and other data) and that I shall not retain any copies,
compilations, extracts, excerpts, summaries or other notes of any such manuals,
files, documents, records, software, customer data base or other data.


 


12.                                 Notwithstanding anything in this General
Release to the contrary, this General Release shall not relinquish, diminish,
or in any way affect any rights or claims arising out of any breach by the
Company or by any Released Party of the Agreement after the date hereof.


 


13.                                 Whenever possible, each provision of this
General Release shall be interpreted in, such manner as to be effective and
valid under applicable law, but if any provision of this General Release is
held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.


 


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BY SIGNING THIS GENERAL
RELEASE, I REPRESENT AND AGREE THAT:


 


(a)                                  I HAVE READ IT CAREFULLY;


 


(b)                                 I UNDERSTAND ALL OF ITS TERMS AND KNOW
THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS
UNDER THE ADEA; TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE
EQUAL PAY ACT OF 1963; THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;


 


(c)                                  I VOLUNTARILY CONSENT TO EVERYTHING IN
IT;


 


(d)                                 I HAVE BEEN ADVISED IN WRITING BY MEANS
OF THIS GENERAL RELEASE TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, I HAVE CHOSEN NOT TO
DO SO OF MY OWN VOLITION;


 


(e)                                  I HAVE BEEN GIVEN ALL TIME PERIODS
REQUIRED BY LAW TO CONSIDER THIS GENERAL RELEASE, INCLUDING THE 21-DAY PERIOD
REQUIRED BY THE ADEA.  I UNDERSTAND THAT
I MAY EXECUTE THIS GENERAL RELEASE LESS THAN 21 DAYS FROM ITS RECEIPT FROM
THE COMPANY, BUT AGREE THAT SUCH EXECUTION WILL REPRESENT A KNOWING WAIVER OF
SUCH 21-DAY CONSIDERATION PERIOD;


 


(f)                                    I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER
THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT
BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;


 


(g)                                 I HAVE SIGNED THIS GENERAL RELEASE
KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY ATTORNEY RETAINED TO
ADVISE ME WITH RESPECT TO IT; AND


 


(h)                                 I AGREE THAT THE PROVISIONS OF THIS
GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY
AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY
AND BY ME.


 


	
  DATE:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THOMAS GUTIERREZ

  



 


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EXHIBIT
D


 


ARBITRATION
PROCEDURE


 


1.                                       Notice of Claim. 
A party asserting a Claim (the “Claimant”) shall deliver written
notice to each party against whom the Claim is asserted (collectively, the “Opposing
Party”), with a copy to the persons required to receive copies of notices
under the Agreement (the “Additional Notice Parties”), specifying the
nature of the Claim and requesting a meeting to resolve same.  The Additional Notice Parties shall be given
reasonable notice of and invited and permitted to attend any such meeting.  If no resolution is reached within 10
business days after delivery of such notice, the Claimant or the Opposing Party
may, within 45 days after giving such notice, invoke the arbitration procedure
provided herein by delivering to each Opposing Party and the Additional Notice
Parties a notice of arbitration which shall specify the Claim as to which
arbitration is sought, the nature of the Claim, the basis for the Claim and the
nature and amount of any damages or other compensation or relief sought (a “Notice
of Arbitration”).  Each party agrees
that no punitive damages may be sought or recovered in any arbitration,
judicial proceeding or otherwise. 
Failure to file a Notice of Arbitration within 45 days shall constitute
a waiver of any right to relief for the matters asserted in the notice of
Claim.  Any Claim shall be forever
barred, and no relief may be sought therefor, if written notice of such Claim
is not made as provided above within one year of the date such Claim accrues.


 


2.                                       Selection of Arbitrator. 
Within 20 business days after receipt of the Notice of Arbitration, the
Executive and the Board shall meet and attempt to agree on an arbitrator to
hear and decide the Claim.  If the
Executive and the Board cannot agree on an arbitrator within ten business days,
then they shall request the American Arbitration Association (the “AAA”)
in Boston, Massachusetts, to appoint an arbitrator experienced in the area of
dispute who does not have an ongoing business relationship with any of the
parties to the dispute.  If the
arbitrator selected informs the parties he cannot hear and resolve the Claim
within the time-frame specified below, the Executive and the Board shall
request the appointment of another arbitrator by the AAA subject to the same
requirements.


 


3.                                       Arbitration Procedure. 
The following procedures shall govern the conduct of any arbitration
under this paragraph 3.  All procedural
matters relating to the conduct of the arbitration other than those specified
below shall be discussed among counsel for the parties and the arbitrator.  Subject to any agreement of the parties, the
arbitrator shall determine all procedural matters not specified herein.


 


(a)                                  Within 30 days after the delivery of a
Notice of Arbitration, each party shall afford the other, or its counsel, with
reasonable access to documents relating directly to the issues raised in the
Notice of Arbitration.  All documents
produced and all copies thereof shall be maintained as strictly confidential,
shall be used for no purpose other than the arbitration hereunder, and shall be
returned to the producing party upon completion of the arbitration.  There shall be no other discovery except
that, if a reasonable need is shown, limited depositions may be allowed in the
discretion of the arbitrator, it being the expressed intention and agreement of
each party to have the arbitration proceedings conducted and resolved as
expeditiously, 


 


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economically and
fairly as reasonably practicable, and with the maximum degree of
confidentiality.


 


(b)                                 All written communications regarding the
proceeding sent to the arbitrator shall be sent simultaneously to each party or
its counsel, with a copy to the Additional Notice Parties.  Oral communications between any of the
parties or their counsel and the arbitrator shall be conducted only when all
parties or their counsel are present and participating in the conversation.


 


(c)                                  Within 20 days after selection of the
arbitrator, the Claimant shall submit to the arbitrator a copy of the Notice of
Arbitration, along with a supporting memorandum and any exhibits or other
documents supporting the Claim.


 


(d)                                 Within 20 days after receipt of the
Claimant’s submission, the Opposing Party shall submit to the arbitrator a
memorandum supporting its position and any exhibits or other supporting
documents.  If the Opposing Party fails
to respond to any of the issues raised by the Claimant within 20 days of receipt
of the Claimant’s submission, then the arbitrator may find for the Claimant on
any such issue and bar any subsequent consideration of the matter.


 


(e)                                  Within 20 days after receipt of the
Opposing Party’s response, the Claimant may submit to the arbitrator a reply to
the Opposing Party’s response, or notification that no reply is forthcoming.


 


(f)                                    Within 10 days after the last submission
as provided above, the arbitrator shall notify the parties and the Additional
Notice Parties of the date of the hearing on the issues raised by the
Claim.  Scheduling of the hearing shall
be within the sole discretion of the arbitrator, but in no event more than 30
days after the last submission by the parties, and shall take place in Boston,
Massachusetts or within 50 miles of the corporate headquarters of the Company
at a place selected by the arbitrator or such other place as is mutually
agreed.  Both parties shall be granted
substantially equal time to present evidence at the hearing.  The hearing shall not exceed one business
day, except for good cause shown.


 


(g)                                 Within 30 days after the conclusion of
the hearing, the arbitrator shall issue a written decision to be delivered to
both parties and the Additional Notice Parties (the “Final Determination”).  The Final Determination shall address each
issue disputed by the parties, state the arbitrator’s findings and reasons
therefor, and state the nature and amount of any damages, compensation or other
relief awarded.


 


(h)                                 Each party agrees that, subject to the
right of any party to appeal or move to vacate or confirm any decision,
judgment, ruling, finding, award or other determination of an arbitration as
provided in this Exhibit D, the decision, judgment, ruling,
finding, award or other determination of any arbitration by the arbitrator
under the AAA Rules shall be final, conclusive and binding on all of the
parties hereto, and judgment may be entered thereupon in accordance with
applicable law in such court as has jurisdiction thereof; provided,
however, nothing in this paragraph 3(h) shall prohibit any party hereto
from instituting litigation to enforce any final decision, judgment, ruling,
finding, award or other determination of the arbitration.


 


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(i) Each of the
parties agrees that (i) the arbitrator shall have no authority to make any
decision, judgment, ruling, finding, award or other determination that does not
conform to the terms and conditions of this Agreement (as executed and
delivered by the parties hereto), (ii) the arbitrator shall have no
greater authority to award any relief than a court (an “Appropriate Court”)
that would, but for the provisions of Section 17 of the Agreement,
have proper jurisdiction in respect of an action brought by either party under
the Agreement, and (iii) the arbitrator shall have no authority to commit
an Error of Law (as defined below) in its decision, judgment, ruling, finding,
award or other determination, and on appeal from or motion to vacate or confirm
such decision, judgment, ruling, finding, award or other determination, an
Appropriate Court may vacate any such decision, judgment, ruling, finding,
award or other determination to the extent containing an Error of Law.  For purposes of this Agreement, an “Error of
Law” means any decision, judgment, ruling, finding, award or other
determination that is inconsistent with the laws governing this Agreement
pursuant to Section 13 of the Agreement.


 


4.                                       Costs of Arbitration. 
As part of the Final Determination, the arbitrator shall determine the
allocation of the costs and expenses of the arbitration, including the
arbitrator’s fee and both parties’ attorneys’ fees and expenses, based upon the
extent to which each party prevailed in the arbitration.  In the event that any relief which is awarded
is non-monetary, then such costs and expenses shall be allocated in any manner
as may be determined by the arbitrator(s).


 


5.                                       Satisfaction of Award. 
If any party fails to pay the amount of the award, if any, assessed
against it within 30 days after the delivery to such party of the Final
Determination, the unpaid amount shall bear interest from the date of such
delivery at the lesser of (i) prime lending rate announced by Citibank
N.A. plus three hundred basis points and (ii) the maximum rate permitted
by applicable usury laws.  In addition,
such party shall promptly reimburse the other party for any and all costs or
expenses of any nature or kind whatsoever (including attorneys’ fees)
reasonably incurred in seeking to collect such award or to enforce any Final
Determination.


 


6.                                       Confidentiality of Proceedings. 
The parties hereto agree that all of the arbitration proceedings
provided for herein, including any notice of claim, the Notice of Arbitration,
the submissions of the parties and any information disclosed in the course of
the arbitration proceedings by the parties, and the Final Determination issued
by the arbitrator (collectively, the “Arbitration Information”), shall
be confidential and shall not be disclosed at any time to any person other than
the parties, their representatives, the arbitrator and the Additional Notice
Parties; provided, however, that this provision shall not prevent
the party prevailing in the arbitration from submitting the Final Determination
to a court for the purpose of enforcing the award, subject to comparable
confidentiality protections if the court agrees.  None of the foregoing provisions shall
prohibit disclosure to the minimum extent reasonably necessary to comply with (i) applicable
law (or requirement having the force of law), court order, judgment or decree,
including, without limitation, disclosures which may be required pursuant to
applicable securities laws, provided that prior to such disclosure the
disclosing party shall notify the other party promptly of the contemplated
disclosure so that the other party may seek an appropriate protective order or
waive compliance with the provisions of this paragraph 6, and if, in the
absence of a protective order or the receipt of a waiver hereunder, the
disclosing party or any of its affiliates, associates or representatives
believes in good faith, upon the advice of legal counsel, that it is compelled
to disclose any such Arbitration Information, such disclosing party 


 


D-3

















 


may disclose such portion
of the Arbitration Information as it believes in good faith, upon the advice of
legal counsel, it is required to disclose; provided further that the
disclosing party shall use reasonable efforts to obtain, at the request and
expense of the other party, an order or other assurance that confidential
treatment shall be accorded to such portion of the Arbitration Information
required to be disclosed as the other party shall designate, and (ii) the
terms of contractual arrangements (such as financing arrangements) to which the
Company or any Additional Notice Party may be subject so long as such
contractual arrangements were not entered into for the primary purpose of
permitting disclosure which would otherwise be prohibited hereunder.


 


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