Exhibit 10.1


 


EXECUTION COPY


 


Date Executive First Received this
Agreement: October 28, 2009


 


Separation
and General Release Agreement


 


This Separation and General Release Agreement
(the “Agreement”) is made as of this 13th day of November 2009 by
and among GT Solar Incorporated (f/k/a GT Equipment Technologies, Inc.,
and referred to throughout this Agreement as the “Company”) and
Thomas M. Zarrella (“Executive,” and together with the Company, the
“Parties”).


 


WHEREAS, Executive has been employed by the
Company under terms set forth in that certain Employment Agreement dated December 30,
2005 (the “Employment Agreement”);


 


WHEREAS, Executive’s employment with the
Company has ended (the “Separation”) effective as of October 28,
2009 (the “Separation Date”);


 


WHEREAS, Executive has been granted options
(the “Stock Options”) (i) to purchase 159,103 shares of common
stock (the “Common Stock”) of GT Solar International, Inc., the
holder of majority of the outstanding capital stock of the Company (“Parent”),
pursuant to that Stock Option Agreement dated as of December 21, 2007 (the
“Stock Option Agreement”) and (ii) to purchase 254,047 shares of
Common Stock effective September 1, 2009 (no agreement with respect to
this grant has been executed by Executive), none of which have vested;


 


WHEREAS, Executive has been granted
restricted stock units (the “RSUs”) (i) issuable for 400,000 shares
of Common Stock pursuant to that Restricted Stock Unit Agreement dated as of February 12,
2009 (the “RSU Agreement”), none of which have vested, and (ii) issuable
for 133,374 shares of Common Stock effective September 1, 2009 (no
agreement with respect to this grant has been executed by Executive), none of
which have vested;


 


WHEREAS, Executive has been granted 173,496.2
Class A Shares (the “Class A Holdings Shares”), 175,831.9 Class B
Shares (the “Class B Holdings Shares”) and 79,768.7 Class C
Shares  (the “Class C Holdings
Shares,” and together with the Class A Holdings Shares and the Class B
Holdings Shares, the “Holdings Shares”) in GT Solar Holdings, LLC (“Holdings”)
pursuant to the Limited Liability Company Agreement of GT Solar Holdings, dated
as of December 30, 2005 (the “LLC Agreement”);


 


WHEREAS, in August 2009, the Board of
Directors of the Parent approved Executive’s participation in the Parent’s
Fiscal Year 2010 Executive Incentive Program (the “EIP”);


 


WHEREAS, Executive has certain rights with
respect to amounts contributed under the Company’s 401(k) Plan (the “401(k) Plan”);
and


 


WHEREAS, the Parties desire to enter into this
Agreement in order to set forth the definitive rights and obligations of the
Parties in connection with the Separation.


 

















 


NOW, THEREFORE, in consideration of the
mutual covenants, commitments and agreements contained herein, and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Parties intending to be legally bound hereby agree as
follows:


 


1.                                      Acknowledgment
of Separation.  The Parties
acknowledge and agree that the Separation is effective as of October 28,
2009.


 


2.                                      Resignation
of Offices.  Effective
as of the Separation Date, Executive voluntarily resigns his position as
President and Chief Executive Officer of the Company, and from any and all
other offices or manager positions which he holds at the Company, Parent, or
the Company’s subsidiaries.  Effective as
of the date hereof, Executive voluntarily resigns his position as a Director of
the Parent and the Company and all board positions which he holds at any
subsidiaries of the Company.


 


3.                                      Executive’s
Acknowledgment of Consideration.  Executive specifically acknowledges and
agrees that certain of the obligations created and payments made to him by the
Company and/or the Parent under this Agreement are promises and payments to
which he is not otherwise entitled under any law or contract.


 


4.                                      Payments
and Benefits Upon and After the Separation.


 


(a)                                  Final Pay.  On the next regular payroll date following
the date of this Agreement, Executive shall receive a lump sum payment of any
and all then-outstanding final wages for services performed for the Company
through and including the Separation Date plus any and all then-outstanding
accrued and unused vacation, minus, in each case, applicable federal, state and
local tax withholdings.


 


(b)                                 Severance
Benefits.  Upon the
effectuation of this Agreement as required by Section 13 hereof,
Executive (or his heirs or assigns) shall become entitled to receive the
severance benefits described below in Sections 4(b)(i) and 4(b)(ii) (the
“Severance Benefits”).


 


(i)                                     Severance Pay.  Executive shall be entitled to receive
severance payments totaling $425,000, representing twelve months of Executive’s
base salary at the rate in effect as of the Separation Date, minus applicable
federal, state and local tax withholdings. 
Payments shall be made in twenty-six equal installments payable on a
bi-weekly basis in accordance with Company’s customary payroll practices (the “Severance
Payments”) beginning on the first payroll date immediately following the
expiration of the Revocation Period.


 


(ii)                                  Medical and
Dental Insurance Benefits. 
Executive shall be entitled to receive continuation, at the Company’s
expense, of the medical and dental insurance benefits to which Executive was
entitled during the Company’s fiscal year 2010 prior to the Separation Date,
for a period equal to the lesser of (x) twelve months following the
Separation Date, or (y) the period ending on the date Executive first
becomes entitled to receive similar benefits, following completion of any
waiting period, under any plan maintained by any person for whom Executive
provides services as an employee or otherwise.


 


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(c)                                  COBRA and COBRA
Premium Payments.  Effective
as of the Separation Date, as required by the continuation coverage provisions
of Section 4980B of the U.S. Internal Revenue Code of 1986, as amended
(the “Code”), Executive shall be offered the opportunity to elect continuation
coverage under the group medical plan(s) of the Company (“COBRA coverage”)
at the Company’s expense for up to 12 months following the Separation Date and
at Executive’s expense thereafter, if required, subject to the provisions of
COBRA coverage in effect at that time. 
The Company shall provide Executive with the appropriate COBRA coverage
notice and election form for this purpose. 
Executive shall notify the Company within two weeks of any change in his
circumstances that would warrant discontinuation of his COBRA coverage and
benefits (including but not limited to Executive’s receipt, following
completion of any waiting period, of group medical benefits from any other
employer).  The existence and duration of
Executive’s rights and/or the COBRA rights of any of Executive’s eligible
dependents shall be determined in accordance with Section 4980B of the
Code.


 


(d)                                 Stock Options.  Executive acknowledges and agrees that:


 


(i)                                     as of the
Separation Date, Executive held the Stock Options and no other options to
purchase shares of common stock of Parent or the Company;


 


(ii)                                  pursuant to the
terms of the Stock Option Agreement, as of the Separation Date (A) Stock
Options covering 72,922 shares of Common Stock have vested, and (B) Stock
Options covering the balance of the 86,181 shares of Common Stock under the
Stock Option Agreement shall automatically expire and be forfeited and
cancelled;


 


(iii)                               all of the
Stock Options granted in 2009 shall automatically expire and be forfeited and
cancelled; and


 


(iv)                              the Stock
Options covering those shares of Common Stock referenced in the preceding
clause (ii)(A) that are vested as of the Separation Date shall be and
continue to be exercisable until the date that is sixty (60) days after the
Separation Date, whereupon such vested Stock Options shall automatically expire
to the extent not then exercised.


 


(e)                                  RSUs.  Executive acknowledges and agrees that:


 


(i)                                     as of the
Separation Date, Executive held the RSUs and no other restricted stock units of
Parent or the Company; and


 


(ii)                                  as of the
Separation Date (A) none of the RSUs have vested, and (B) all of the
RSUs shall automatically be forfeited and cancelled.


 


(f)                                    Holdings Shares.  Executive acknowledges and agrees that (i) Executive
holds the Holdings Shares and no other equity interests in Holdings, (ii) pursuant
to the terms of the LLC Agreement, as of the Separation Date (A) 131,873.9
of the Class B Holdings Shares have vested and shall be subject to
repurchase by Holdings in accordance with Sections 3.2(b)(iv) and 3.9 of
the LLC Agreement, and (B) the balance of the 43,958.0 Class B
Holdings Shares shall automatically expire and be forfeited and cancelled as of
the Separation Date, and (iii) pursuant to the terms of the LLC Agreement,
the Class A Holdings Shares and the Class C Holdings Shares are not
subject to forfeiture or cancellation as of the Separation Date and Executive
shall continue to hold the Class A Holdings Shares and Class C
Holdings Shares 


 


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following
the Separation Date in accordance with the terms of the LLC Agreement.  Executive also acknowledges and agrees that
the terms and provisions of that letter agreement between Executive and
Holdings, dated as of July 29, 2008, regarding distributions in respect of
the Holdings Shares, remains in full force and effect.


 


(g)                                 Special Payment.  Executive shall be entitled to receive a
special payment of $350,000, minus applicable federal, state and local tax
withholdings.  Such payment shall be made
in a lump sum within five (5) business days after the expiration of the
Revocation Period.  Such payment does not
represent any payment on or settlement with respect to any of the Stock Options
or RSU’s which were forfeited and cancelled pursuant to this Agreement or with
respect to any other agreement or arrangement between Executive and the Company,
the Parent and/or any of their respective subsidiaries.


 


(h)                                 Legal Expenses.  The Company shall promptly pay all attorneys’
fees and expenses (not to exceed $20,000 in the aggregate) actually incurred by
Executive and invoiced to the Company in connection with the Separation and the
negotiation of this Agreement.


 


(i)                                     Indemnification.  The Company represents that the Parent’s
Board of Directors is considering approval of an Indemnification Agreement for
its directors, and the Company agrees that if the Board of Directors of the
Parent approves an Indemnification Agreement (with or without modifications)
for its directors prior to October 28, 2010, the Parent will promptly
enter into an Indemnification Agreement with Executive, relating to his service
as a director, in the form approved by its Board of Directors.


 


(j)                                     Internal
Revenue Code Section 409A.  The intent of the Parties is that payments
and benefits under this Agreement comply with Code Section 409A and the
regulations and guidance promulgated thereunder (collectively “Code Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith. 
In no event whatsoever shall the Company be liable for any additional
tax, interest or penalty that may be imposed on Executive by Code Section 409A
or damages for failing to comply with Code Section 409A.  For purposes of Code 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.


 


(k)                                  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 setoff,
counterclaim, recoupment, defense or other claim, right or action which the
Company may have against Executive or others. 
In no event shall Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement, and such amounts shall not be
reduced whether or not Executive obtains other employment.


 


5.                                      Confidential
Information; Non-Competition; Non-Solicitation. Executive
represents, warrants and covenants that, during his employment with the
Company, he has complied in all respects with all of the provisions of the
Confidentiality and Non-Competition Agreement dated December 30, 2005 (the
“Restrictive Covenant Agreement”) 


 


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between
the Company and Executive, and Executive agrees to continue to comply with and
be bound by the Restrictive Covenant Agreement from and after the Separation in
accordance with the terms thereof.


 


6.                                      General
Release and Waiver.


 


(a)                                  General Release.  Executive, for and on behalf of himself and
each of his heirs, executors, administrators, personal representatives,
successors and assigns, to the maximum extent permitted by law, hereby
acknowledges full and complete satisfaction of and fully and forever releases,
acquits and discharges (A) each of the Fully Released Parties , from any
and all claims, demands, suits, causes of action, liabilities, obligations,
judgments, orders, debts, liens, contracts, agreements, covenants and causes of
action of every kind and nature, whether known or unknown, suspected or
unsuspected, concealed or hidden, vested or contingent, in law or equity,
existing by statute, common law, contract or otherwise, which have existed, may
exist or do exist, through and including the execution and delivery by
Executive of this Agreement (but not including Executive’s or the Company’s
performance under this Agreement) (collectively, the “Released Claims”),
and (B) each of the Employment Related Released Parties from any and all
Released Claims arising out of Executive’s application for and employment with
the Company, Parent and their respective subsidiaries, his being a director,
officer or employee of the Company, Parent and their respective subsidiaries,
or the Separation, including, without limitation in each case (A) and (B),
any of the foregoing arising out of or in any way related to or based upon:


 


(i)                                     Executive’s
application for and employment with the Company, Parent and their respective
subsidiaries, his being a director, officer or employee of the Company, Parent
and their respective subsidiaries, or the Separation;


 


(ii)                                  any and all
claims in tort or contract, and any and all claims alleging breach of an
express or implied, or oral or written, contract, policy manual or employee
handbook;


 


(iii)                               any alleged
misrepresentation, defamation, interference with contract, intentional or
negligent infliction of emotional distress, sexual harassment, negligence or
wrongful discharge; or


 


(iv)                              any federal,
state or local statute, ordinance or regulation, including but not limited to
the Age Discrimination in Employment Act of 1987, as amended.


 


“Fully
Released Parties” shall mean each of the Company, the Parent, GT Solar
Holdings, LLC, GFI Energy Ventures, LLC and their respective subsidiaries, together
with the past and present directors, members, officers, employees and attorneys
of the foregoing and the respective successors and assigns of the foregoing.


 


“Employment-Related
Released Parties” means the respective past and present direct and indirect
stockholders, directors, members, partners, officers, employees, attorneys,
agents, affiliates and representatives of each Fully Released Party and their
respective heirs, executors, 


 


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administrators,
personal representatives, successors and assigns; provided, in each case, a
Fully Released Party shall not be deemed an Employment-Related Released Party.


 


“Releasees”
shall mean the Fully Released Parties and the Employment-Related Released
Parties.


 


(b)                                 Acknowledgment
of Waiver;  Disclaimer of Benefits.  Executive acknowledges and agrees that he is
waiving all rights to sue or obtain equitable, remedial or punitive relief from
any or all Releasees of any kind whatsoever, including, without limitation, reinstatement,
back pay, front pay, attorneys’ fees and any form of injunctive relief.  Notwithstanding the foregoing, Executive
further acknowledges that he is not waiving and is not being required to waive
any right that cannot be waived by law, including the right to file a charge or
participate in an administrative investigation or proceeding; provided, however, that
Executive disclaims and waives any right to share or participate in any
monetary award resulting from the prosecution of any such charge or
investigation.


 


(c)                                  Effect of
Release and Waiver.  Executive
understands and intends that this Section 6 constitutes a general
release of all claims to the extent provided in Section 6(a),
above, and that no reference therein to a specific form of claim, statute or
type of relief is intended to limit the scope of such general release and
waiver.  Notwithstanding the foregoing or
any other provision contained herein, Executive does not release any of the
following (and none of the following is included in the definition of “Claim”):


 


(i)                                     claims that
Executive may have against the Company or the Parent for reimbursement of
ordinary and necessary business expenses incurred by him during the course of
his employment;


 


(ii)                                  claims that
arise after the date of this Agreement;


 


(iii)                               any accrued and
vested rights or entitlements that Executive has under any applicable written (a) plan,
(b) policy, (c) program or (d) arrangement of, or (e) other
written agreement, including this Agreement, with, the Company, the Parent or
the Company’s subsidiaries; and


 


(iv)                              Executive’s
right to be indemnified and to have his expenses advanced by the Parent (A) as
set forth in the Parent’s Amended and Restated Certificate of Incorporation as
in effect on the date of this Agreement, (B) as required under applicable
law or (C) as permitted pursuant to the Company’s and/or the Parent’s
directors’ and officer’s liability insurance policies, in each case with
respect to any liability and/or expenses he incurs or incurred as an employee,
officer and/or director of the Company, the Parent and/or any of their
respective subsidiaries;


 


(v)                                 any right or
entitlement Executive may have to obtain contribution as permitted by law in
the event of entry of judgment against him as a result of any act or failure to
act for which he, the Company, the Parent and/or any of their respective
subsidiaries or employees are jointly liable and only in the event and to the
extent that the Parent’s indemnification obligations for the benefit of
Executive under the Parent’s Amended 


 


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and Restated Certificate of Incorporation as
in effect on the date of this Agreement are determined by the final judgment of
a court of competent jurisdiction to be unenforceable with respect to such
judgment.


 


(d)                                 Waiver of
Unknown Claims.  Executive
expressly waives all rights afforded by any statute which limits the effect of
a release with respect to unknown claims. 
Executive understands the significance of his release of unknown claims
and his waiver of statutory protection against a release of unknown claims.


 


(e)                                  The Company
hereby represents and warrants to Executive that, as of the date of this
Agreement, neither the Company nor the Parent is aware of any facts and
circumstances relating to his employment by the Company and/or its affiliates
which would form the basis for the Company and/or its affiliates to assert any
claim against Executive for any reason relating to his employment by the
Company and/or its affiliates or the Separation and, at the date hereof, the
Company and the Parent have no intention of asserting any such claim against
Executive.


 


7.                                      Executive’s
Representations and Covenants Regarding Actions.  Executive represents, warrants and covenants
to each of the Releasees that at no time prior to or contemporaneous with his
execution of this Agreement has he knowingly engaged in any wrongful conduct
against, on behalf of or as the representative or agent of the Company, the
Parent and/or their respective subsidiaries. 
Executive further represents, warrants and covenants to each of the
Releasees that at no time prior to or contemporaneous with his execution of
this Agreement has he filed or caused or knowingly permitted the filing or
maintenance, in any state, federal or foreign court, or before any local,
state, federal or foreign administrative agency or other tribunal, any charge,
claim or action of any kind, nature and character whatsoever (“Claim”),
known or unknown, suspected or unsuspected, which he may now have or has ever
had against the Releasees which is based in whole or in part on any matter
referred to in Section 6(a) above; and, subject to the Company’s
performance under this Agreement, to the maximum extent permitted by law
Executive is prohibited from filing or maintaining, or causing or knowingly
permitting the filing or maintaining, of any such Claim in any such forum.  Executive hereby grants the Company and the
Parent his perpetual and irrevocable power of attorney with full right, power
and authority to take all actions necessary to dismiss or discharge any such
Claim.  Executive further covenants and
agrees that he will not encourage any person or entity, including but not
limited to any current or former employee, officer, director or stockholder of
the Company or the Parent, to institute any Claim against the Releasees or any
of them, and that except as expressly permitted by law or administrative policy
or as required by legally enforceable order he will not aid or assist any such
person or entity in prosecuting such Claim.


 


8.                                      No
Disparaging Remarks. 
Executive hereby covenants to each of the Releasees and agrees that he
shall not, directly or indirectly, make or solicit or encourage others to make
or solicit any disparaging remarks concerning the Releasees, or any of their
products, services, businesses, reputation, goodwill or activities.  The Company hereby covenants to Executive
that it will instruct the officers and directors of the Company and the Parent
who hold such positions on the date of this Agreement that they shall not,
directly or indirectly, make or solicit or encourage others to make or solicit
any disparaging remarks concerning the Executive.  


 


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Nothing
in this Section 8 will prevent either Party from making a truthful
statement (i) in response to a statement by the other Party that violates
this Section 8, (ii) to the extent necessary with respect to
any litigation, arbitration or mediation, including without limitation, any
litigation, arbitration or mediation to enforce this Agreement, (iii) to
the extent required by law or by any court or by any governmental,
administrative or regulatory body with apparent jurisdiction to order such
Party to disclose or make accessible such information, or (iv) to the
other Party.


 


9.                                      No
Conflict of Interest. 
Executive hereby covenants and agrees that he shall not, directly or
indirectly, incur any obligation or commitment, or enter into any contract,
agreement or understanding, whether express or implied, and whether written or
oral, which would be in conflict with his obligations, covenants or agreements
hereunder or which could cause any of his representations or warranties made
herein to be untrue or inaccurate


 


10.                               Executive’s
Business and Litigation Assistance and Cooperation.


 


(a)                                  Executive’s
Business Assistance and Cooperation.  Executive shall make himself reasonably
available to assist and cooperate with the Company, the Parent and/or their
respective subsidiaries in connection with any internal and/or independent
review of the policies, procedures and activities of the Company, the Parent
and/or their respective subsidiaries in respect of all periods during which
Executive was employed by the Company or any of its subsidiaries.  To the extent that Executive provides any
services to the Company, the Parent and/or their respective subsidiaries after December 1,
2009 that exceed 100 hours, the Company shall pay Executive for such assistance
and cooperation a consulting fee at the rate of $400 per hour; provided,
however, that (x) the Company shall not be required to compensate
Executive for any assistance or cooperation relating to or arising from any
litigation, arbitration, government or any other administrative proceeding
involving the Company and/or other Releasees (each, a “Proceeding”) in which
Executive is also named as a defendant and (y) for purposes of calculating
the 100 hours of assistance and 
cooperation, no assistance or cooperation described in the foregoing
clause (x) shall be included.  Any
travel time shall be compensated at 50% of this hourly rate unless Executive is
actively working during such travel time.


 


(b)                                 Executive’s
Litigation Assistance and Cooperation.  Executive acknowledges and affirms his
understanding that he may be a witness in a Proceeding.  Executive hereby covenants and agrees to
testify truthfully in any and all such Proceedings.  Executive further covenants and agrees, upon
prior notice, to make himself reasonably available to and otherwise reasonably
assist and cooperate with the Company and/or such other Releasees and with its
or their respective attorneys and advisors in connection with any such
Proceeding.  Executive shall not be
compensated for any of his time spent testifying or preparing to testify in any
dispute involving the Company or any Releasee in a Proceeding, but otherwise
shall receive consulting fees pursuant to Section 10(a) above.


 


(c)                                  The Company will make all reasonable
efforts to insure when seeking assistance and cooperation that Executive’s
assistance and cooperation pursuant to Sections 10(a) and 10(b) above
will not materially interfere with (A) Executive’s employment and business
responsibilities and obligations or (B) Executive’s important personal obligations.


 


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(d)           Executive’s Expenses.  Executive shall be entitled to reimbursement
for Demonstrably Lost Wages, and to reimbursement of any reasonable,
pre-approved out-of-pocket expenses for travel, lodging, meals and other
transportation, in each case incurred by him in relation to any assistance and
cooperation supplied by Executive as described in this Section 10.  “Demonstrably Lost Wages” means, to
the extent Executive is employed in a full-time position with an employer
(other than himself or an entity he directly or indirectly owns or controls)
and must take an unpaid leave of absence to provide any assistance or
cooperation relating to or arising from any Proceeding in which Executive is
also named as a defendant, the lesser of (A) the wages that Executive lost
as a result of taking such unpaid leave of absence as set forth in a written
statement to the Company from Executive’s full-time employer or (B) $400
per hour.


 


11.          Return of Corporate
Property; Conveyance of Information.


 


(a)           Company Property. 
Upon his Separation, Executive hereby covenants and agrees to
immediately return all documents, keys, credit cards (without further use
thereof), and all other items which are the property of the Company, the Parent
and/or their respective subsidiaries and/or which contain confidential
information; and, in the case of documents, to return any and all materials of
any kind and in whatever medium evidenced, including, without limitation, all
hard disk drive data, diskettes, microfiche, photographs, negatives, blueprints,
printed materials, tape recordings and videotapes.  Notwithstanding anything to the contrary
contained herein, and provided that such items do not contain or reflect
Confidential Information as defined in the Restrictive Covenant Agreement,
Executive will be entitled to retain (i) papers and other materials of a
personal nature, including without limitation personal photographs, personal
correspondence, personal diaries, personal calendars and personal rolodexes,
personal phone books and files relating to his personal affairs, (ii) information
showing Executive’s compensation or relating to his reimbursement of business
related expenses, (iii) information Executive reasonably believes may be
needed for the planning and preparation of his personal tax returns and (iv) copies
of Company plans and agreements relating to Executive’s employment with or
separation from the Company.  In
addition, Executive will be entitled to retain his mobile phone/personal
communications device.


 


(b)           Information. 
Executive hereby acknowledges and affirms that he possesses intellectual
information regarding the Company, the Parent and their respective subsidiaries
and their businesses, operations, and customer relationships.  In addition to the obligation to turn over
any physical embodiment of such information as defined in the Federal Rules of
Civil Procedure and pursuant to Section 11(a), above, and to keep
such information strictly confidential pursuant to Section 5,
above, Executive agrees to make himself available from time to time at the
request of the Company, the Parent or their respective subsidiaries (during
normal business hours and with reasonable prior notice) to discuss and
disseminate such information and to otherwise cooperate with the efforts of the
Company, the Parent or their respective subsidiaries relating thereto.


 


12.          Remedies.  Executive hereby acknowledges and affirms
that in the event of any breach by Executive of any of his covenants,
agreements and obligations under Sections 5 through 8 of
this Agreement, monetary damages would be inadequate to compensate the
Releasees or any of them.  Accordingly,
in addition to other remedies which may be available to 


 


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the
Releasees hereunder or otherwise at law or in equity, (i) any of the
Company or the Parent shall be entitled to specifically enforce such covenants,
obligations and restrictions through injunctive and/or equitable relief, in
each case without the posting of any bond or other security with respect
thereto and (ii) any Releasee shall be entitled to specifically enforce
the covenants, obligations and restrictions set forth in Sections 6
through 8 through injunctive and/or equitable relief, in each case
without the posting of any bond or other security with respect thereto.  Further, in the event of such breach by
Executive which is not cured (if curable) within 20 days after the Executive
receives notice from the Company or the Parent (in case of clause (i)) or any
Releasee (in case of clause (ii)) describing such breach in reasonable detail,
to the maximum extent permitted by applicable law, (x) all payments and
benefits made or to be made to Executive under this Agreement shall be
eliminated, and (y) Executive shall be required to (a) return all but
$100 of any consideration paid by the Company under this Agreement, and (b) pay
all legal fees and costs of the Releasees associated with any injunctive or
enforcement actions successfully undertaken by the Releasees.  Should any provision hereof be adjudged to
any extent invalid by any tribunal of competent jurisdiction, each provision
shall be deemed modified to the minimum extent necessary to render it
enforceable.


 


13.          Acknowledgment of
Voluntary Agreement;  ADEA Compliance.  Executive acknowledges that he has entered
into this Agreement freely and without coercion, that he has been advised by
the Company to consult with counsel of his choice, that he has had adequate
opportunity to so consult, and that he has been given all time periods required
by law to consider this Agreement, including but not limited to the 21-day
period required by the ADEA.  Executive
understands that he may execute this Agreement less than 21 days from its
receipt from the Company, but agrees that such execution will represent his
knowing waiver of such 21-day consideration period. Executive further
acknowledges that within the 7-day period following his execution of this
Agreement (the “Revocation Period”) he shall have the unilateral right
to revoke this Agreement, and that the Company’s obligations hereunder shall
become effective only upon the expiration of the Revocation Period without
Executive’s revocation hereof.  In order
to be effective, notice of Executive’s revocation of this Agreement must be
received by the Company on or before the last day of the Revocation Period.


 


14.          Complete Agreement;
Inconsistencies.  This
Agreement, including the Employment Agreement, Restrictive Covenant Agreement,
Stock Option Agreement, RSU Agreement, the LLC Agreement and any other documents
referenced herein, constitute the complete and entire agreement and
understanding of the Parties with respect to the subject matter hereof, and
supersede in their entirety any and all prior understandings, commitments,
obligations and/or agreements, whether written or oral, with respect thereto;
it being understood and agreed that this Agreement, including the mutual
covenants, agreements, acknowledgments and affirmations contained herein, is
intended to constitute a complete settlement and resolution of all matters set
forth in Section 6 hereof.


 


15.          No Strict Construction.  The language used in this Agreement shall be
deemed to be the language mutually chosen by the Parties to reflect their
mutual intent, and no doctrine of strict construction shall be applied against
any Party.


 


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16.          Non-Admission.  Nothing herein shall be deemed or construed
to represent an admission by the Company or the Releasees of any violation of
law or other wrongdoing with respect to Executive.


 


17.          Third Party Beneficiaries.  The Parent is an intended third party
beneficiary of Sections 5 through 8 of this Agreement, and
Releasees are intended third-party beneficiaries of Sections 6
through 8 of this Agreement, and such Sections may be enforced by
each of them in accordance with the terms hereof in respect of the rights
granted to such Releasees hereunder. 
Executive’s heirs or assigns also are intended third-party beneficiaries
with respect to the payments set forth in Section 4 of this
Agreement in the event of Executive’s death or incompetence, and this Agreement
may be enforced by each of them in accordance with the terms of that Section 4
in respect of the rights granted to such heirs or assigns therein.  Except and to the extent set forth in the
preceding two sentences, this Agreement is not intended for the benefit of any
Person other than the Parties, and no such other Person shall be deemed to be a
third party beneficiary hereof.  Without
limiting the generality of the foregoing, it is not the intention of the
Company to establish any policy, procedure, course of dealing or plan of
general application for the benefit of or otherwise in respect of any other
employee, officer, director or stockholder, irrespective of any similarity
between any contract, agreement, commitment or understanding between the
Company and such other employee, officer, director or stockholder, on the one
hand, and any contract, agreement, commitment or understanding between the
Company and Executive, on the other hand, and irrespective of any similarity in
facts or circumstances involving such other employee, officer, director or
stockholder, on the one hand, and the Executive, on the other hand.


 


18.          Tax Withholdings.  Notwithstanding any other provision herein,
the Company shall be entitled to withhold from any amounts otherwise payable
hereunder to Executive any amounts required to be withheld in respect of
federal, state or local taxes.


 


19.          Governing Law.  All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement 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 that would cause the application hereto 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, even though under any other jurisdiction’s
choice of law or conflict of law analysis the substantive law of some other
jurisdiction may ordinarily apply.


 


20.          Severability.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall otherwise remain in full
force and effect.


 


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


 


22.          Successors and Assigns.  The Parties’ obligations hereunder shall be
binding upon their successors and assigns. 
The Parties’ rights and the rights of the other 


 


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Releasees
shall inure to the benefit of, and be enforceable by, any of the Parties’ and
Releasees’ respective successors and assigns. 
The Company may assign all rights and obligations of this Agreement to
any successor in interest to the assets of the Company.  In the event that the Company is dissolved,
all obligations of the Company under this Agreement shall be provided for in
accordance with applicable law.


 


23.          Amendments and Waivers.  No amendment to or waiver of this Agreement
or any of its terms shall be binding upon any Party unless consented to in
writing by such Party.


 


24.          Headings.  The headings of the Sections and subsections
hereof are for purposes of convenience only, and shall not be deemed to amend,
modify, expand, limit or in any way affect the meaning of any of the provisions
hereof.


 


25.          Disputes.  Subject to the terms of, and any exceptions
provided in, this Agreement, any controversy or claim (including all claims
pursuant to common and statutory law) between Executive and the Company,
including without limitation, all controversies and claims relating to this
Agreement or arising out of or relating to the subject matter of this
Agreement, Executive’s employment with the Company, and/or Executive’s
separation from the Company (“Disputes”), will be resolved exclusively
through binding arbitration.  The Parties
hereto each waive the right to a jury trial and each waive the right to
adjudicate their Disputes outside the arbitration forum provided for in this
Agreement, except as otherwise provided in this Agreement or required by
applicable law.  Such arbitrations will
be conducted by and in accordance with the governing rules of the American
Arbitration Association.  The arbitration
will be held in the City of Manchester, State of New Hampshire, unless
Executive and the Company mutually agree otherwise.  Disputes shall be subject to the provisions
of New Hampshire Revised Statutes Annotated Chapter 542.  Nothing contained in this Section 25
will be construed to limit or preclude a Party from bringing any action in any
court of competent jurisdiction for injunctive or other provisional relief to
compel another Party to comply with its obligations under this Agreement or any
other agreement between or among the Parties during the pendency of the
arbitration proceedings.  The fees and
expenses of the arbitrator will be borne by the Company subject to any rules of
the selected arbitration service that permit the arbitrator in his or her
discretion to require any one or more of the Parties to bear all or any portion
of the fees and expenses of the arbitrator; provided, however, that with respect to claims that, but for this
mandatory arbitration clause, could be brought against the Company under any
applicable federal or state labor or employment law (“Employment Law”),
the arbitrator will be granted and will be required to exercise all discretion
belonging to a court of competent jurisdiction under such Employment Law to
decide the Dispute, whether such discretion relates to the provision of
discovery, the award of any remedies or penalties, or otherwise.  As to Disputes not relating to Employment
Laws, the arbitrator will have the authority to award any remedy or relief that
a Court of the State of New Hampshire could order or grant.  The decision and award of the arbitrator will
be in writing and copies thereof will be delivered to each Party.  The decision and award of the arbitrator will
be binding on all Parties.  In rendering
such decision and award, the arbitrator will not add to, subtract from or
otherwise modify the provisions of this Agreement.  Either Party to the arbitration may seek to
have the ruling of the arbitrator entered in any court having jurisdiction
thereof.  Except as otherwise specifically
provided in this Section 25, each Party agrees that it will not
file suit, motion, petition or 


 


12

















 


otherwise
commence any legal action or proceeding for any matter which is required to be
submitted to arbitration as contemplated herein except in connection with the
enforcement of an award rendered by an arbitrator and except to seek the
issuance of an injunction or temporary restraining order pending a final
determination by the arbitrator.  Upon
the entry of any order dismissing or staying any action or proceeding filed
contrary to the preceding sentence, the Party which filed such action or
proceeding will promptly pay to the other Party the reasonable attorney’s fees,
costs and expenses incurred by such other Party prior to the entry of such
order.  Both during and after the entire
arbitration process as contemplated herein, the arbitration itself and
information and discovery disclosed in the arbitration process (“Arbitration
Information”) shall be maintained in strictest confidence by the Parties
and their counsel and by the authorized Party to whom Arbitration Information
is disclosed.  Arbitration Information
may be used, possessed, and disclosed only as allowed in this Agreement, and
only for the purposes of arbitration and related proceedings pursuant to this
Agreement, and for no other purpose whatsoever. 
Accordingly, without limitation, Arbitration Information may not be
disclosed:  (1) to any judicial,
governmental, regulatory, administrative, arbitral, corporate, or other entity
not administering arbitration under this Agreement; (2) to any member of
the general public; or (3) to the media; provided,
however, that Arbitration Information
may be disclosed to (A) the arbitration Parties and their respective
advisors, consultants and experts (and such Parties’ authorized employees and
agents); (B) the arbitrator and arbitration administrator (and their
authorized staffs); (C) fact witnesses reasonably expected to offer
relevant evidence in an arbitration proceeding, and (D) a court of
competent jurisdiction in an action to enforce arbitration or an arbitration
order under this Agreement, or as otherwise required by a court of competent
jurisdiction or by a governmental, administrative or regulatory body with
apparent jurisdiction to order disclosure. 
The arbitrator shall, upon request, issue all prescriptive orders as may
be required to enforce and maintain this covenant of confidentiality during the
course of the arbitration and after the conclusion of same so that the result
and underlying data, information, materials, and other evidence are forever
withheld from public dissemination with the exception of its subpoena by a
court of competent jurisdiction in an unrelated proceeding brought by a third
party or a requirement of its disclosure by a governmental, administrative or
regulatory body with apparent jurisdiction to order disclosure.  The consideration for this Agreement includes
the Parties’ mutual agreement to arbitrate their Disputes.  This Section 25 shall be
construed and enforced under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.


 


* * * * *


 


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IN WITNESS WHEREOF, the Parties have executed
this Separation and General Release Agreement effective as of the date of the
last signature affixed below or as otherwise provided in this Agreement.


 


READ
CAREFULLY BEFORE SIGNING


 


I have read this Separation and General Release
Agreement and have had the opportunity to consult legal counsel prior to my
signing of this Agreement.  I understand
that by executing this Agreement I will relinquish certain rights and demands I
may have against the Releasees or any of them.


 


	
  DATED:

  	
          11/13/09

  	
   

  	
  By:

  	
   /s/ Thomas M. Zarrella 

  
	
   

  	
   

  	
  Thomas M. Zarrella

  
	
   

  	
   

  
	
   

  	
   

  
	
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  *  *  * 
  *  *  * 
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  *  *  * 
  *  *  * 
  *  *  * 
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  DATED:

  	
          11/13/09

  	
   

  	
  GT SOLAR INCORPORATED 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Hoil Kim 

  
	
   

  	
   

  	
  Hoil Kim 

  
	
   

  	
   

  	
  Vice President, General
  Counsel and Secretary

  



 


[Signature Page to Thomas M. Zarrella Separation
Agreement]