Exhibit 10.2


 


GT SOLAR INTERNATIONAL, INC.


 


RESTRICTED STOCK UNIT AGREEMENT


 


THIS RESTRICTED STOCK UNIT AGREEMENT (this “Agreement”)
is made as of October 29, 2009, by and between GT Solar International, Inc.,
a Delaware corporation (the “Company”), and Thomas Gutierrez (“Employee”), in accordance with the
2008 Equity Incentive Plan of the Company, as the same may be amended from time
to time (the “Plan”).  Certain
definitions are set forth in Section 7 of this Agreement.


 


On October 29, 2009, the Company granted
to Employee 400,000 restricted stock
units (the “RSUs”) under the Plan. 
Each RSU entitles Employee to receive from the Company one share of the
Company’s common stock, par value $.01 per share (“Common Stock”) for
each RSU granted hereunder that becomes vested under the terms described herein
and in the Plan.  All of such shares of
Common Stock that may hereafter be delivered to Employee pursuant to this
Agreement are referred to herein as “Employee Stock.”


 


The parties hereto agree as follows:


 


1.     Incorporation
by Reference; Plan Document Receipt.  This Agreement is subject in all respects to
the terms and provisions of the Plan (including, without limitation, any
amendments thereto adopted at any time and from time to time unless such
amendments are expressly intended not to apply to the award provided
hereunder), all of which terms and provisions are made a part of and
incorporated in this Agreement as if they were expressly set forth herein.  Any capitalized term not defined in this
Agreement shall have the same meaning as is ascribed thereto in the Plan.  Employee hereby acknowledges receipt of a
true copy of the Plan and that Employee has read the Plan carefully and fully
understands its content.  In the event of
a conflict between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall control.


 


2.     Grant
of the RSUs.


 


(a)   The Company granted to Employee, as of October 29, 2009,
400,000 RSUs, subject to the terms and
conditions hereunder.  Employee agrees
and understands that nothing contained in this Agreement provides, or is
intended to provide, Employee with any protection against potential future
dilution of Employee’s stockholder interest in the Company for any reason.  Employee shall not have the rights of a
stockholder in respect of the shares of Common Stock underlying these RSUs
until such Common Stock is delivered to the Participant in accordance with Section 4.


 


(b)   The grant of the RSUs by the Company is subject to Employee’s
execution and delivery of the attached Proprietary Rights and Confidentiality
Agreement between Employee and the Company (or, at the discretion of the Board,
a similar agreement containing such terms as the Board, or a duly designated
committee thereof, shall determine) (the “Employee Confidentiality Agreement”),
if Employee is not currently subject to such an agreement.  These RSUs and all shares of the Employee
Stock shall be subject to the terms and 


 

















 


conditions of the Employee Confidentiality
Agreement or such similar agreement (whether executed in connection herewith or
prior to the date hereof).


 


(c)   In connection with the receipt of the RSUs and the delivery of any
Employee Stock hereunder, Employee represents and warrants to, and agrees with,
the Company that:


 


(i)            The
RSUs and the Employee Stock to be acquired by Employee pursuant to this
Agreement shall be acquired for Employee’s own account and not with a view to,
or intention of, distribution thereof in violation of the Securities Act, or
any applicable state securities laws, and the RSUs and the Employee Stock shall
not be disposed of in contravention of the Securities Act or any applicable
state securities laws.


 


(ii)           This
Agreement constitutes the legal, valid and binding obligation of Employee,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by Employee do not and shall not conflict with,
violate or cause a breach of any agreement, contract or instrument to which
Employee is a party or any judgment, order or decree to which Employee is
subject.


 


(iii)          Employee
has not taken any action that constitutes a conflict with, violation or breach
of, and the execution and delivery of this Agreement and the other agreements
contemplated hereby will not conflict with, violate or cause a breach of, any
noncompete, nonsolicitation or confidentiality agreement to which Employee is a
party or by which Employee is bound. 
Employee agrees to notify the Board of any matter (including, but not
limited to, any potential acquisition by the Company) which, to Employee’s
knowledge, might reasonably be expected to violate or cause a breach of any
such agreement.


 


(iv)          Employee
is a resident of the State of Florida.


 


(v)           Employee
has been advised and encouraged in writing (via this Agreement) to consult with
an attorney and a tax advisor prior to signing this Agreement.


 


(d)   As an inducement to the Company to issue any RSUs to Employee, and
as a condition thereto, Employee acknowledges and agrees that neither the
issuance of the RSUs or the delivery of any Employee Stock nor any provision
contained herein shall entitle Employee to employment with the Company or any
of the Subsidiaries, or affect the right of the Company or any of its
Subsidiaries to terminate Employee’s employment at any time, with or without
cause.


 


(e)   The Company and Employee acknowledge and agree that this Agreement
has been executed and delivered, the RSUs have been granted and any Employee
Stock that may be delivered hereunder will be delivered, in connection with and
as a part of the compensation and incentive arrangements between the Company
(together with its Subsidiaries) and Employee.


 


(f)    In connection with the issuance of any Employee Stock hereunder,
Employee hereby agrees and acknowledges that all of the shares of the Employee
Stock are subject in all respects to the terms of this Agreement.


 


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3.     Vesting.


 


(a)   Except as otherwise provided in this Section 3, the
RSUs shall become vested in accordance with the following schedule, if as of
each such date Employee has continuously served as an employee of the Company
(or any of its direct or indirect wholly owned Subsidiaries, as applicable)
since the date hereof, such that, subject to the other terms and conditions of
this Agreement, all of the RSUs shall be vested on October 29, 2013:


 


	
  Date

  	
   

  	
  Percent of RSUs Vested

  	
   

  
	
  October 29,
  2010

  	
   

  	
  25%

  	
   

  
	
  October 29 of each of the three years
  thereafter, up to and including October 29, 2013

  	
   

  	
  Additional 25%

  	
   

  



 


(b)   Except as otherwise provided in this Section 3, if
Employee’s employment with the Company (or any of its direct or indirect wholly
owned Subsidiaries, as applicable) terminates for any reason (including upon
the death or disability of Employee prior to the vesting of all or any portion
of the RSUs awarded under this Agreement), such unvested portion of the RSUs
shall immediately be cancelled and Employee (and Employee’s estate, designated
beneficiary or other legal representative) shall forfeit any rights or
interests in and with respect to any such RSUs.


 


(c)   In addition to Section 3(a) above, upon a
termination by the Company (or any of its direct or indirect wholly owned
Subsidiaries, as applicable) without Cause or by Employee with Good Reason of
Employee’s employment with the Company (or any of its direct or indirect wholly
owned Subsidiaries, as applicable) that also constitutes a “separation from
service” within the meaning of Code Section 409A within twelve months
following a Change in Control of the Company (a “Change in Control
Termination”), all remaining unvested RSUs shall vest (for the avoidance of
doubt, the vesting described in this Section 3(c) is in
addition to, and not in lieu of, any vesting described in Section 3(a) above).


 


4.     Delivery of
Common Stock.  Subject to the terms
of the Plan and Section 6 below, if the RSUs awarded by this Agreement
become vested, the Company shall promptly distribute to Employee the number of
shares of Common Stock equal to the number of the RSUs that so vested; provided
that to the extent required by Code Section 409A, delivery of shares of
Common Stock upon a Participant’s “separation from service” within the meaning
of Code Section 409A shall be deferred
until the six month anniversary of such separation from service.  In connection with the delivery of the shares
of Common Stock pursuant to this Agreement, the Participant agrees to execute
any documents reasonably requested by the Company and provide therein customary
representations and warranties related to the receipt of such shares of Common
Stock.


 


5.     Certificates.  The shares of Employee Stock may be in
certificated or uncertificated form, as permitted by the Company’s Bylaws.


 


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6.     Corporate
Event.  In the event any dividend or
distribution of Common Stock, recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
change of control or exchange of Common Stock or other securities of the
Company, or other corporate transaction or event affects the Common Stock, or
in the event of the sale, transfer or other disposition of all or substantially
all of the business and assets of the Company, whether by sale of assets,
merger or otherwise (determined on a consolidated basis) to a Third Party (or
group of affiliated Third Parties) (each, a “Corporate Event”), the
Board shall, in such manner as it in good faith deems equitable, (i) adjust
any or all of the number of shares of Employee Stock or other securities of the
Company (or number and kind of other securities or property) subject to the
RSUs, or (ii) make provision for an immediate cash payment to Employee in
consideration for the cancellation of the RSUs, to the extent allowed under
Code Section 409A.  Notwithstanding
the provisions of this Section 6 or Section 3(c), in
the event (x) any RSUs would otherwise vest pursuant to Section 3(c) and
(y) the Company is not the surviving entity in any Change in Control or
the Company sold, transferred or otherwise disposed of all or substantially all
of its business or assets pursuant to such Change in Control, then the Company
may provide that any successor to the Company and/or its assets pursuant to
such Change in Control shall provide the Employee with the same per share
consideration provided to a holder of Common Stock in connection with such
Change in Control in lieu of otherwise allowing such RSUs to vest pursuant to Section 3(c).


 


7.     Definitions.


 


“Board” means the Company’s Board of
Directors.


 


“Cause” shall have the meaning set
forth in Employee’s Employment Agreement. If Employee does not have an
Employment Agreement or if such Employment Agreement does not contain a
definition of “Cause” then “Cause” shall mean with respect to Employee 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
Subsidiaries substantial public disgrace or disrepute or substantial economic harm,
(iii) substantial and repeated failure to perform duties as reasonably
directed by the Board, (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, or (vi) any breach of the Proprietary
Rights and Confidentiality Agreement between the Company and GT Solar
Incorporated, or any material breach of any other agreement between the Company
and Employee.


 


“Change in Control” means (i) the
consummation of any transaction or series of transactions resulting in a Third
Party (or group of affiliated Third Parties) owning, directly or indirectly,
securities of the Company possessing the voting power to elect a majority of
the Company’s board of directors (whether by merger, consolidation or sale or
transfer of the Company’s securities) or (ii) the sale, transfer or other
disposition of all or substantially all of the 


 


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business and assets of the
Company, whether by sale of assets, merger or otherwise (determined on a
consolidated basis) to a Third Party (or group of affiliated Third Parties).


 


“Employment Agreement” means , if
Employee is party to an employment agreement with the Company (or a subsidiary
of the Company), the employment agreement between Employee and the Company (or
a subsidiary of the Company, as applicable) as currently in effect on the date
of this Agreement.


 


“Good Reason” shall have the meaning
set forth in Employee’s Employment Agreement. 
If Employee does not have an Employment Agreement or if such Employment
Agreement does not contain a definition of “Good Reason” then “Good Reason”
shall mean if Employee 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 Executive Incentive Program of the Company (“EIP”) without
permitting Employee 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 Employee under the EIP, (ii) the Company changes
Employee’s title and reduces his responsibilities or authority in a manner
materially inconsistent with that of the position of Chief Executive Officer or
(iii) the Company changes Employee’s place of work to a location outside
of New Hampshire; provided that in order for Employee’s resignation for Good
Reason to be effective hereunder, Employee must provide written notice to the
Company stating Employee’s intent to resign for Good Reason and the grounds
therefor within thirty (30) 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 Employee’s resignation for Good Reason.


 


“Securities Act” means the Securities
Act of 1933, as amended from time to time, and the rules and regulations
promulgated thereunder.


 


“Subsidiary” means any corporation of
which the Company owns securities having a majority of the ordinary voting
power in electing the board of directors directly or through one or more
subsidiaries.


 


“Third Party” means any person or
entity who or which (i) does not own any of the Company’s securities as of
June 30, 2008, (ii) is not controlling, controlled by or under common
control with any person or entity that owns any of the Company’s securities as
of June 30, 2008 and (iii) is not the spouse or descendant (by birth
or adoption) of any person who directly or indirectly owns or controls any of
the Company’s securities as of June 30, 2008.


 


8.     Notices.  Any notice provided for in this Agreement
must be in writing and must be either personally delivered, mailed by first
class mail (postage prepaid and return receipt requested) or sent by reputable
overnight courier service (charges prepaid) to the recipient at the address
below indicated:


 


To the Company:


 


5

















 


GT Solar International, Inc.

243 Daniel Webster Highway

Merrimack, New Hampshire 03054

Attention: General Counsel


 


To Employee:


 


Thomas Gutierrez


 


 


or such other address or to
the attention of such other person as the recipient party shall have specified
by prior written notice to the sending party. 
Any notice under this Agreement shall be deemed to have been given when
so delivered or sent or, if mailed, five days after deposit in the U.S. mail.


 


9.     General
Provisions.


 


(a)   Transferability.  The
RSUs shall not be transferable by Employee other than by the laws of will or
descent.  All provisions of this
Agreement shall in any event continue to apply to any RSU transferred as
permitted by this Section 9(a), and any transferee shall be bound
by all provisions of this Agreement as and to the same extent as Employee.  Any transfer or attempted transfer of any
RSUs in violation of any provision of this Agreement shall be void, and the
Company shall not record such transfer on its books or treat any purported
transferee of such RSUs as the owner of such stock for any purpose.


 


(b)   Withholding Taxes. 
The Company shall be entitled to withhold from any amounts due and
payable by the Company and/or any of its Subsidiaries to Employee the amount of
any federal, state, local or other tax which, in the opinion of the Company, is
required to be withheld in connection with the vesting of the RSUs, the
delivery of shares of the Employee Stock or the delivery of cash, securities or
other property as provided in Section 6.  To the extent that the amounts available to
the Company for such withholding are insufficient, it shall be a condition to
the delivery or vesting, as applicable, of such shares of the Employee Stock
that Employee make arrangements satisfactory to the Company for the payment of
the balance of such taxes required to be withheld.  The Board, upon the written request of
Employee, in the Board’s sole discretion and pursuant to such procedures as it
may specify from time to time, may permit Employee to satisfy all or part of
the tax obligations in connection with the vesting of the RSUs or the delivery
of the shares of Employee Stock by (i) having the Company withhold
otherwise deliverable shares, or (ii) delivering to the Company shares that
have been held by Employee for at least six months, in each case having a Fair
Market Value (as defined in the Plan) equal to the amount sufficient to satisfy
such tax obligations.


 


(c)   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 


 


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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, 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.


 


(d)   Complete Agreement. 
This Agreement, the Plan, those documents expressly referred to herein
and therein 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.


 


(e)   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.


 


(f)    Successors and Assigns. 
Except as otherwise provided herein, this Agreement shall bind and inure
to the benefit of and be enforceable by Employee, the Company and their
respective successors and assigns (including subsequent permitted holders of
the RSUs or the Employee Stock); provided that the rights and obligations of
Employee under this Agreement shall not be assignable except in connection with
a permitted transfer of the Employee Stock hereunder.


 


(g)   Choice of Law.  All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the exhibits hereto shall be governed by, and construed
in accordance with, the internal law, and not the law of conflicts, of the
State of Delaware, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.


 


(h)   Remedies.  Each of
the parties to this Agreement shall be entitled to enforce its rights under
this Agreement specifically, to recover damages and costs (including reasonable
attorney’s fees) caused by any breach of any provision of this Agreement and to
exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that
money damages would not be an adequate remedy for any breach of the provisions
of this Agreement and that any party shall be entitled to specific performance
and/or other injunctive relief from any court of law or equity of competent
jurisdiction (without posting any bond or deposit) in order to enforce or
prevent any violations of the provisions of this Agreement.


 


(i)    Amendment and Waiver. 
The provisions of this Agreement may be amended and waived only with the
prior written consent of the Company and Employee.


 


*      *     
*      *


 


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


 


	
   

  	
  GT SOLAR
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Hoil Kim

  
	
   

  	
   

  
	
   

  	
  Name: Hoil Kim 

  
	
   

  	
   

  
	
   

  	
  Title: Vice President and
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Thomas Gutierrez

  
	
   

  	
  Thomas
  Gutierrez

  



 


 


[Signature Page - Restricted Stock Unit Agreement with Thomas
Gutierrez]