Exhibit
10.1


 


INDEMNITY
AGREEMENT


 


This
Indemnification Agreement (“Agreement”) is made as of April 2, 2010 by and
between GT Solar International, Inc., a Delaware corporation (the “Company”),
and [Name of Director] (“Indemnitee”).


 


RECITALS


 


WHEREAS,
competent and experienced persons have become more reluctant to serve
publicly-held corporations as directors unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of the corporation;


 


WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that, in
order to attract and retain qualified individuals to serve on the Board, the
Company will attempt to maintain on an ongoing basis, at its sole expense,
liability insurance to protect persons serving the Company and its subsidiaries
from certain liabilities.  The Amended
and Restated Certificate of Incorporation of the Company (the “Certificate
of Incorporation”) requires indemnification of the directors of the
Company.  Indemnitee may also be entitled
to indemnification pursuant to the General Corporation Law of the State of
Delaware (“DGCL”).  The Certificate of
Incorporation and the DGCL expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the board of
directors with respect to indemnification;


 


WHEREAS,
the uncertainties relating to such insurance and to indemnification have
increased the difficulty of attracting and retaining such persons;


 


WHEREAS,
the Board has determined that the increased difficulty in attracting and
retaining such persons is detrimental to the best interests of the Company’s
stockholders and that the Company should act to assure such persons that there
will be increased certainty of such protection in the future;


 


WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify, and to advance expenses on behalf of, such
persons to the fullest extent permitted by applicable law so that they will
serve or continue to serve the Company free from undue concern that they will
not be so indemnified;


 

















 


WHEREAS,
this Agreement is a supplement to and in furtherance of the Certificate of
Incorporation of the Company and any resolutions adopted pursuant thereto, and
shall not be deemed a substitute therefor, nor to diminish or abrogate any
rights of Indemnitee thereunder;


 


WHEREAS,
Indemnitee does not regard the protection available under the Company’s
Certificate of Incorporation and insurance as adequate in the present
circumstances, and may not be willing to serve as a director without adequate
protection, and the Company desires Indemnitee to serve or continue to serve in
such capacity.  Indemnitee is willing to
serve, continue to serve and to take on additional service for or on behalf of
the Company on the condition that he be so indemnified; and


 


NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:


 


SECTION 1.  SERVICES TO THE COMPANY.  In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a
director of the Company.  However, this
Agreement shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee’s service to the Company beyond any period otherwise
required by the Company’s Certificate of Incorporation, the
Company’s Bylaws, and the General Corporation Law of the State of
Delaware.  The foregoing notwithstanding,
this Agreement shall continue in force after Indemnitee has ceased to serve as
a director of the Company.


 


SECTION 2.  DEFINITIONS.  As used in this Agreement:


 


(a) A
“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 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).


 


For purposes of this Section 2(a), “Third Party” means any person or
entity who or which (i) did 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 owned any of the Company’s securities on 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.


 


(b) “Disinterested
Director” means a director of the Company who is not and was not a party to the
Proceeding in respect of which indemnification is sought by Indemnitee.


 


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(c) “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time to time.


 


(d) The
term “Independent Counsel” means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither presently is, nor in the
past five years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder.  Notwithstanding the
foregoing, the term “Independent Counsel” shall not include any person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or Indemnitee in
an action to determine Indemnitee’s rights under this Agreement.  The Company agrees to pay the reasonable fees
and expenses of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.


 


(e) The
term “Proceeding” means any actual or threatened action, suit, arbitration,
alternate dispute resolution mechanism or proceeding, whether civil, criminal,
administrative or investigative.


 


SECTION 3.  RIGHT TO INDEMNIFICATION.  Subject to the limitations
set forth in Section 5, if the Indemnitee is a person who was or is made a
party or is threatened to be made a party to or is involved (including, without
limitation, as a witness) in any Proceeding, by reason of the fact that he is
or was a director of the Company or is or was serving at the request of the
Company as a director or officer of another corporation, as a partner or
officer of a partnership, as a member or officer of a limited liability
company, as a principal or officer of a joint venture, as a trustee or officer
of a trust or in any comparable capacity in any other enterprise, including
service with respect to an employee benefit plan, whether the basis of such
Proceeding is alleged action in an official capacity as a director or in any
such other capacity while so serving, shall be indemnified and held harmless by
the Company to the full extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to such amendment),
or by other applicable law as then in effect, against all expense, liability
and loss (including attorneys’ fees and related disbursements, judgments,
fines, excise taxes and penalties under ERISA, penalties and amounts paid or to
be paid in settlement) actually and reasonably incurred or suffered by such
Indemnitee in connection therewith, and such indemnification shall continue as
to a person who has ceased to be a director, officer, partner, member,
principal, or trustee or to hold a comparable position, in each case as
applicable, and shall inure to the benefit of his or her heirs, executors and
administrators.  If the Indemnitee is or
was serving as a director or officer of a subsidiary of the Company, then the
Indemnitee shall be deemed to be serving, or have served, at the request of the
Company.


 


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SECTION 4.  ADVANCEMENT OF EXPENSES.  Expenses (including attorneys’ fees, costs
and charges) incurred by an Indemnitee in defending a Proceeding shall be paid
by the Company in advance of the final disposition of such Proceeding upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all
amounts so advanced in the event that it shall ultimately be determined that
such Indemnitee is not entitled to be indemnified by the Company in accordance
with the terms of this Agreement.  The
majority of the Disinterested Directors or a committee thereof may, in the
manner set forth above, and upon approval of such Indemnitee, authorize the
Company’s counsel to represent such person, in any Proceeding, whether or not
the Company is a party to such Proceeding.


 


SECTION 5.  DETERMINATION
OF RIGHT TO INDEMNIFICATION.  Any indemnification (but not advancement of
expenses) under this Agreement (unless ordered by a court) shall be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the DGCL, as the
same exists or hereafter may be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment).  Such
determination shall be made with respect to the Indemnitee as a director,
officer, partner, member, principal, trustee or person holding a comparable position,
as applicable, at the time of such determination: (i) if a Change in
Control shall have occurred, by Independent Counsel in a written opinion; or (ii) if
a Change in Control shall not have occurred, (a) by a majority vote
of the Disinterested Directors, even though less than a quorum, (b) by a
committee of Disinterested Directors designated by a majority vote of
Disinterested Directors, even though less than a quorum, (c) if there are
no such Disinterested Directors, or if such Disinterested Directors so direct,
by Independent Counsel in a written opinion, or (d) by the stockholders.


 


SECTION 6.  EXCLUSIONS.  Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any
indemnity in connection with any claim made against Indemnitee:


 


(a) to the extent
that payment is actually made, or for which payment is available, to or on
behalf of the Indemnitee under an insurance policy, except in respect of any
amount in excess of the limits of liability of such policy or any applicable
deductible under such policy; or


 


(b) for
an accounting of profits made from the purchase and sale (or sale and purchase)
by Indemnitee of securities of the Company within the meaning of Section 16(b) of
the Securities Exchange Act of 1934, as amended, or similar provisions of state
statutory law or common law; or


 


(c) in
connection with any Proceeding (or any part of any Proceeding) initiated by
Indemnitee, including any Proceeding (or any part of any Proceeding) initiated
by Indemnitee


 


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against the Company or its
directors, officers, employees or other indemnitees, unless (i) the Board
of Directors of the Company authorized the Proceeding (or any part of any
Proceeding) prior to its initiation or (ii) the Company provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Company under applicable law; or


 


(d) to the extent
that payment has been or will be made to the Indemnitee by the Company otherwise
than pursuant to this Agreement; or


 


(e) to
the extent that there was a final adjunction by a court of competent
jurisdiction that the Indemnitee has not met the applicable standard of conduct
required to entitle the Indemnitee to indemnification under the DGCL as it now
exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment).


 


SECTION 7. 
PROCEDURES FOR INDEMNIFICATION.  Any indemnification or advance of expenses
(including attorneys’ fees, costs and charges) under this Agreement shall be
made promptly, and in any event within 30 days upon the written request of the
Indemnitee (and, in the case of advance of expenses, receipt of a written
undertaking by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that Indemnitee is not entitled to be indemnified
therefor pursuant to the terms of this Agreement).  The right to indemnification or advances as
granted by this Agreement shall be enforceable by the Indemnitee in any court
of competent jurisdiction, if the Company denies such request, in whole or in
part, or if no disposition thereof is made within 30 days.  Such person’s costs and expenses incurred in
connection with successfully establishing his/her right to indemnification, in
whole or in part, in any such action shall also be indemnified by the
Company.  It shall be a defense to any
such action (other than an action brought to enforce a claim for the advance of
expenses (including attorney’s fees, costs and charges) under this Agreement
where the required undertaking, if any, has been received by the Company) that
the claimant has not met the standard of conduct set forth in the DGCL, as the
same exists or hereafter may be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), but the burden of proving such defense shall
be on the Company.  Neither the failure
of the Company (including the Board, its independent legal counsel and its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, as the same exists or hereafter may be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), nor the fact that there has been an actual determination
by the Company (including the Board, its independent legal counsel and its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a


 


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defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.


 


[SECTION 8.  SETTLEMENT.  The Company
shall not be liable to indemnify the Indemnitee under this Agreement for any
amounts paid in settlement of any proceeding without its written consent, which
consent shall not be unreasonably withheld. 
The Company shall not settle any proceeding which would impose any
penalty or limitation on the Indemnitee without the Indemnitee’s written
consent, which consent shall not be unreasonably withheld.  In the event that consent is not given and
the parties hereto are unable to agree on a proposed settlement, Independent
Counsel shall be retained by the Company, at its expense, with the consent of the
Indemnitee, which consent shall not be unreasonably withheld, for the purpose
of determining whether or not the proposed settlement is reasonable under all
the circumstances; and if Independent Counsel determines the proposed
settlement is reasonable under all the circumstances, the settlement may be
consummated without the consent of the other party.]


 


SECTION 9.  NON-EXCLUSIVITY; SURVIVAL OF RIGHTS;
INSURANCE; SUBROGATION.


 


(a) The
rights of indemnification and to receive advancement of expenses as provided by
this Agreement shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Company’s
Certificate of Incorporation, the Company’s Bylaws, any agreement, a vote of
stockholders or a resolution of directors, or otherwise.  No amendment, alteration or repeal of this
Agreement or of any provision hereof shall limit or restrict any right of
Indemnitee under this Agreement in respect of any action taken or omitted by
such Indemnitee in his capacity as a director prior to such amendment,
alteration or repeal.  To the extent that
a change in Delaware law, whether by statute or judicial decision, permits
greater indemnification or advancement of expenses than would be afforded
currently under the Company’s Certificate of Incorporation and this Agreement,
it is the intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change.  No right or remedy herein conferred is
intended to be exclusive of any other right or remedy, and every other right
and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other right or remedy.


 


(b) To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents of the
Company or of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or policies
in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, employee or agent under such policy
or policies.  If, at the time of the
receipt of a notice of a claim pursuant to the terms hereof, the Company has
director and officer


 


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liability insurance in
effect, the Company shall give prompt notice of the commencement of such
proceeding to the insurers in accordance with the procedures set forth in the
respective policies.  The Company shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.


 


(c) In
the event of any payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of Indemnitee,
who shall execute all papers required and take all action necessary to secure
such rights, including execution of such documents as are necessary to enable
the Company to bring suit to enforce such rights.


 


(d) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable (or for which advancement is provided hereunder)
hereunder if and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or otherwise.


 


(e) The
Company’s obligation to indemnify or advance expenses hereunder to Indemnitee
who is or was serving at the request of the Company as a director, officer,
employee or agent of any other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall be reduced by any amount
Indemnitee has actually received as indemnification or advancement of expenses
from such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise.


 


SECTION 10.  DURATION OF AGREEMENT.  This Agreement shall continue until and
terminate upon the later of: (a) 10 years after the date that Indemnitee
shall have ceased to serve as a director of the Company or (b) 1 year
after the final termination of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of expenses
hereunder.  This Agreement shall be
binding upon the Company and its successors and assigns and shall inure to the
benefit of Indemnitee and his heirs, executors and administrators.


 


SECTION 11.  SEVERABILITY.  If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any Section of
this Agreement containing any such provision held to be invalid,


 


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illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall be construed so as
to give effect to the intent manifested thereby.


 


SECTION 12.  ENFORCEMENT.


 


(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director of the
Company.


 


(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.


 


SECTION 13.  MODIFICATION AND WAIVER.  No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by the parties
thereto.  No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions of this Agreement nor shall any waiver constitute a
continuing waiver.


 


SECTION 14.  NOTICE BY INDEMNITEE.  Indemnitee agrees promptly to notify the
Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of expenses
covered hereunder.  The failure of
Indemnitee to so notify the Company shall not relieve the Company of any
obligation which it may have to the Indemnitee under this Agreement or
otherwise.


 


SECTION 15.  NOTICES.  All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) if delivered by hand and receipted for by the
party to whom said notice or other communication shall have been directed, or (b) mailed
by certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:


 


(a) If
to Indemnitee, at the address indicated on the signature page of this
Agreement, or such other address as Indemnitee shall provide to the Company.


 


(b) 
   If to the Company, to:


 


GT
Solar International, Inc.


243
Daniel Webster Highway


Merrimack,
NH 03054


Attention:  General Counsel


 


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or to any other address as
may have been furnished to Indemnitee by the Company.


 


SECTION 16.  CONTRIBUTION.  To the fullest extent permissible under
applicable law, if the indemnification provided for in this Agreement is held
by a court of competent jurisdiction to be unavailable to Indemnitee in whole
or in part, the Company, in lieu of indemnifying Indemnitee, shall contribute
to the amount incurred by Indemnitee, whether for judgments, fines, penalties,
excise taxes, amounts paid or to be paid in settlement and/or for expenses, in
connection with any claim relating to an indemnifiable event under this
Agreement, in such proportion as is deemed fair and reasonable in light of all
of the circumstances of such Proceeding, taking into account, among other things,
contributions by other directors and officers of the Company or others pursuant
to indemnification agreements or otherwise; provided, that, without limiting
the generality of the foregoing, such contribution shall not be required where
such holding by the court is due to the failure of the Indemnitee to meet the
standard of conduct set forth in Section 5 hereof or any limitation on
indemnification set forth in Section 6 or 8 hereof.


 


SECTION 17.  APPLICABLE LAW AND CONSENT TO JURISDICTION.  This Agreement and the legal relations among
the parties shall be governed by, and construed and enforced in accordance
with, the laws of the State of Delaware, without regard to its conflict of laws
rules.  The Company and Indemnitee hereby
irrevocably and unconditionally (i) agree that any action or proceeding
arising out of or in connection with this Agreement shall be brought only in
the Chancery Court of the State of Delaware (the “Delaware Court”), and not in
any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of
or in connection with this Agreement, (iii) appoint, to the extent such
party is not otherwise subject to service of process in the State of Delaware,
irrevocably National Registered Agents, Inc. its agent in the State of
Delaware as such party’s agent for acceptance of legal process in connection
with any such action or proceeding against such party with the same legal force
and validity as if served upon such party personally within the State of
Delaware, (iv) waive any objection to the laying of venue of any such  action or proceeding in the Delaware Court,
and (v) waive, and agree not to plead or to make, any claim that any such
action or proceeding brought in the Delaware Court has been brought in an
improper or inconvenient forum.


 


SECTION 18.  IDENTICAL COUNTERPARTS.  This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same Agreement.  Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to evidence the existence
of this Agreement.


 


SECTION 19.  MISCELLANEOUS.  Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.  The headings of the paragraphs of this


 


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Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement
or to affect the construction thereof.


 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be signed as of the day and year first
above written.


 


 


	
  GT SOLAR INTERNATIONAL,
  INC.

  	
   

  	
  INDEMNITEE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Hoil Kim

  	
   

  	
  [Name of Director]

  
	
  Vice President, Chief
  Administrative Officer and General Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Office:

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
  243 Daniel Webster Highway

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Merrimack, NH 03054

  	
   

  	
   

  
					



 


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