Exhibit 10.1


 


GT SOLAR INTERNATIONAL, INC.


 


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT (this “Agreement”) is made as of
February 23, 2010, between GT Solar International, Inc., a Delaware
corporation (the “Company”), and Richard Gaynor (“Executive”).


 


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


 


1.     Employment.  The Company
shall employ Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement for the
period beginning on the  date Executives
commences employment with the Company 
(currently anticipated to be March 1, 2010) and ending as provided
in paragraph 4 hereof (the “Employment Period”).  Employment with the Company is subject to
satisfactory completion of a pre-employment background investigation and drug
screening.


 


2.     Position and Duties.


 


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


 


(b)   During the Employment Period, Executive shall report
to the Company’s President and Chief Executive Officer and shall devote his
best efforts and his full business time and attention (except for permitted
vacation periods and reasonable periods of illness or other incapacity) to the
business and affairs of the Company and its Subsidiaries.  Executive shall perform his duties,
responsibilities and functions to the Company and its Subsidiaries hereunder to
the best of his abilities in a diligent, trustworthy, professional and efficient
manner and shall comply with the Company’s and its Subsidiaries’ policies and
procedures in all material respects.  In
performing his duties and exercising his authority under the Agreement,
Executive shall support and implement the business and strategic plans approved
from time to time by the Board and shall support and cooperate with the Company’s
and its Subsidiaries’ efforts to expand their businesses and operate profitably
and in conformity with the business and strategic plans approved by the
Board.  So long as Executive is employed
by the Company, Executive shall not, without the prior written consent of the
Board, accept other employment or perform other services for compensation.  During
the Employment Period, Executive shall not serve as an officer or director of,
or otherwise perform services for compensation for, any other


 

















 


entity without the prior approval of the Board; provided that
Executive may serve as an officer or director of or otherwise participate in
solely educational, welfare, social, religious, sporting club and civic
organizations so long as such activities do not interfere with Executive’s
employment with the Company and its Subsidiaries.  Executive shall be primarily based at the
Company’s headquarters in Merrimack, New Hampshire.  Executive understands and agrees that his
employment will require travel from time to time.


 


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


 


3.     Compensation and Benefits.


 


(a) During the Employment Period, Executive’s
base salary shall be at the rate of $320,000 per
annum or such higher rate as the Compensation Committee of the Board (the “Compensation
Committee”) may determine from time to time (as adjusted from time to time,
the “Base Salary”), which salary shall be payable by the Company in proportionate,
bi-weekly installments and in accordance with the Company’s general payroll
practices in effect from time to time.   
In addition, during the Employment Period, Executive shall be eligible
to participate in all of the Company’s employee benefit programs (other than
bonuses and other incentive programs, except as otherwise (i) provided
herein or (ii) determined by the Board) for which senior executive
employees of the Company and its Subsidiaries are generally eligible, and
Executive shall be eligible to earn three (3) weeks of paid vacation and
six (6) days of paid leave for illness each calendar year in accordance
with the Company’s policies.  Executive’s
participation in the Company’s benefit plans will be subject to the terms of
applicable plan documents and the Company’s generally applicable policies, and
the Company in its sole discretion may from time to time adopt, modify,
interpret or discontinue such plans or policies.


 


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


 


(c)           In addition to the Base Salary, during
the Employment Period, Executive shall be eligible to participate in the
Executive Incentive Program of the Company, the terms of which for fiscal year
2010 are attached as Exhibit A 
hereto (the “EIP”), under which Executive will be eligible to
receive a bonus based upon the achievement of such performance targets and
other conditions as stated in the EIP; provided, however, that Executive
must execute a participant agreement with the Company prior to being deemed a
participant in the EIP.  The Executive’s
target bonus for fiscal year 2011 shall be 60% of base salary.  Executive’s “Participation Date” under the
EIP shall be the first day of fiscal year 2011 on April 4, 2010.  As special consideration in conjunction with
Executive’s hire, Executive shall be entitled to receive a sign-on bonus of
$85,000.  This payment shall be disbursed
in two installments, $42,500 on the first payroll date following the Executive’s
start date and $42,500 at the same time as


 


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payments under the EIP program for fiscal year 2010
are made.  Installments are contingent
upon the Executive being employed with the Company on the date of payment.  The EIP, if any, for future years shall be
determined by the Compensation Committee of the Board of Directors.  While the Company does not guarantee the
existence or the terms and conditions of any incentive plan in future years,
participation in such plans (including equity plans), if any, shall be extended
to Executive to an extent commensurate with Executive’s position.


 


(d)           The Board has approved a grant to
Executive of 124,316 restricted stock units (“RSUs”)
and 236,791 options to purchase shares of common stock of the Company, which
grants shall be made on the date of Executive’s commencement of
employment.  First anniversary vesting
shall be adjusted accordingly to coincide with the anniversary of the executive’s
commencement of employment.   The terms,
restrictions, limitations and termination provisions of the RSUs will be as
set-forth in the form of an RSU agreement and Stock Option Agreement attached
hereto as Exhibit B and Exhibit C and will be subject to the
Company’s 2008 Equity Incentive Plan.


 


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


 


4.     Termination.


 


(a)       The Employment Period shall begin on the date of this
Agreement and continue until the Employment Period is terminated by (i) Executive’s
resignation (with or without Good Reason, as defined below) or death or Disability (as defined below) as
determined by the Board in its good faith judgment or (ii) the Company at
any time prior to such date with or without Cause (as defined below).  Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as
specified in a written notice from the Company to Executive; provided
that, the Company shall provide at least thirty (30) days advance notice to
Executive in the event the Company terminates Executive’s employment without
Cause.  Executive shall provide at least
thirty (30) days advance written notice of Executive’s resignation of
employment, with or without Good Reason (as defined below), to the Board.


 


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


 


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


 


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


 


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provided, however, Executive shall be entitled to the payments
and benefits described in clauses (b)(i) and (b)(ii) of this
paragraph if and only if Executive has executed and delivered to the Company
the General Release substantially in form and substance as set forth in Exhibit C
attached hereto within twenty-two (22) days following the day of termination
and the General Release has become effective, and only so long as Executive has
not revoked or breached the provisions of the General Release or breached the
provisions of paragraphs 5, 6 and 7 hereof. 
Executive shall not be entitled to any other salary, compensation or
benefits after termination of the Employment Period, except as specifically
provided for in the Company’s employee benefit plans or as otherwise expressly
required by applicable law.


 


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


 


(d)   Except as otherwise expressly provided herein, all of
Executive’s rights to salary, bonuses, employee benefits and other compensation
hereunder which would have accrued or become payable after the termination of
the Employment Period shall cease upon such termination, other than those
expressly required under applicable law (such as COBRA).


 


(e)   For purposes of this Agreement, “Cause” shall
mean with respect to Executive, one or more of the following:  (i) the commission of a felony or other
crime involving moral turpitude or the commission of any other act or omission
involving dishonesty, disloyalty or fraud with respect to the Company or any of
its Subsidiaries or any of their customers or suppliers, (ii) repeatedly
reporting to work under the influence of alcohol or illegal drugs, the use of
illegal drugs in the workplace or other repeated conduct causing the Company or
any of its Subsidiaries substantial public disgrace or disrepute or substantial
economic harm, (iii) substantial and repeated failure to perform duties as
reasonably directed by the Board or the Company’s President and Chief Executive
Officer, (iv) any act or omission aiding or abetting a, a 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 


 


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Subsidiaries or (vi) any other material breach of this Agreement
which is not cured to the Company’s reasonable satisfaction within fifteen (15)
days after written notice to Executive.


 


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


 


(g)   For purposes of this Agreement, “Good Reason”
shall mean if Executive resigns from employment with the Company and its
Subsidiaries prior to the end of the Employment Period as a result of the
occurrence of one or more of the following events:  (i) the Company  reduces the amount of the Base Salary (other
than as a result of a general across-the-board salary reduction applicable to
all senior  executives of the
Company)  (x) elects to eliminate
the EIP without permitting Executive to participate in an annual incentive
bonus plan in place of the EIP which offers a potential bonus payment
comparable to that earnable at 100% of plan target by Executive under the EIP
or (y) does not extend to Executive participation in equity plans
commensurate with Executive’s position, to the extent senior executives of the
Company participate in such equity plans, (ii) the Company changes
Executive’s title and reduces his responsibilities or authority in a manner
materially inconsistent with that of the position of Chief Financial Officer or
(iii) the Company  changes Executive’s
place of work to a location more than fifty (50) miles from Merrimack, New
Hampshire (unless such location is closer to Executive’s then current principal
residence than Merrimack); provided that in order for Executive’s
resignation for Good Reason to be effective hereunder, Executive must provide
written notice to the Company stating Executive’s intent to resign for Good Reason
and the grounds therefor within 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 Executive’s resignation for Good
Reason.


 


5.     Confidential Information.


 


(a)           Executive acknowledges that the
information, observations and data (including trade secrets) obtained by him
while employed by the Company and its Subsidiaries concerning the business or
affairs of the Company, or any of its Subsidiaries, (“Confidential
Information”) are the property of the Company or such Subsidiary.  Therefore, Executive agrees that he shall not
disclose to any person or entity or use for his own purposes any Confidential
Information or any confidential or proprietary information of other persons or
entities in the possession of the Company and its Subsidiaries (“Third Party
Information”) (other than in the ordinary course of performing his duties
for the Company),  without the prior written consent
of


 


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the Board, either during or after his employment with
the Company, unless and to the extent that the Confidential Information or
Third Party Information becomes generally known to and available for use by the
public other than as a result of Executive’s acts or omissions.  Executive shall deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer files, disks
and tapes, printouts and software and other documents and data (and copies
thereof) embodying or relating to Third Party Information, Confidential
Information, Work Product (as defined below) or the business of the Company, or
any of its Subsidiaries, which he may then possess or have under his control.


 


(b)   Executive shall be prohibited from using or disclosing
any confidential information or trade secrets that Executive may have learned
through any prior employment.  If at any
time during the Employment Period Executive believes he is being asked to
engage in work that will, or will be likely to, jeopardize any confidentiality
or other obligations Executive may have to former employers, Executive shall
immediately advise the Company’s President and Chief Executive Officer so that
Executive’s duties can be modified appropriately.  Executive represents and warrants to the
Company that Executive took nothing with him which belonged to any former
employer when Executive left his prior employment positions and that Executive
has nothing that contains any information which belongs to any former
employer.  If at any time Executive
discovers this is incorrect, Executive shall promptly return any such materials
to Executive’s former employer and notify the Company’s President and Chief
Executive Officer.  The Company does not
want any such materials, and Executive shall not be permitted to use or refer
to any such materials in the performance of Executive’s duties hereunder.


 


(c)   Executive acknowledges and agrees that the Company’s
business depends on the extensive use of highly proprietary trade secrets
related to the business, including (among other things) extremely complex
subject matters, in particular, photovoltaic fabrications lines and
photovoltaic manufacturing equipment (collectively, “PV”).  Executive acknowledges and agrees that the
Company’s trade secrets and Confidential Information related to its business in
general, and PV in particular, are unique in the solar power marketplace and
that Executive will have access to, the Company’s highly proprietary
information on a day-to-day basis in his job with the Company.  Accordingly, Executive acknowledges and
agrees that, should a competitor to the Company gain access to the information
Executive will use on a day-to-day basis while employed at the Company, the
Company would lose a significant competitive advantage in the marketplace.


 


6.     Intellectual Property, Inventions and
Patents.  Executive acknowledges that all discoveries,
concepts, ideas, inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports, patent applications, copyrightable work
and mask work (whether or not including any confidential information) and all
registrations or applications related thereto, all other proprietary
information and all similar or related information (whether or not patentable)
which relate to the Company’s or any of its Subsidiaries’ actual or anticipated
business, research and development or existing or future products or services
and which are conceived, developed or made by Executive (whether alone or
jointly with others) while employed by the Company and its Subsidiaries,
whether before or after the date of this


 


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Agreement (“Work Product”), belong to the
Company or such Subsidiary.  Executive
shall promptly disclose such Work Product to the Board and, at the Company’s
expense, perform all actions reasonably requested by the Board (whether during
or after the Employment Period) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).


 


7.     Non-Compete, Non-Solicitation.


 


(a)           Executive acknowledges and agrees that
should Executive depart the Company and become engaged by a competitor within a
one (1) year period following his departure, Executive would by necessity
utilize and rely upon the extensive proprietary information, Confidential
Information and trade secrets, related to the business, that Executive was
required to know, and use, on a day-to-day basis while employed by the
Company.  Executive also acknowledges
that during the course of his employment with the Company and its Subsidiaries
he shall become intimately familiar with the Company’s trade secrets and with
other Confidential Information concerning the Company and its Subsidiaries and
that his services shall be of special, unique and extraordinary value to the
Company and its Subsidiaries.  Therefore,
Executive agrees that, during the Employment Period and for one (1) year
thereafter (the “Noncompete Period”), he shall not, other than with the
prior written consent of the Company, directly or indirectly own any interest
in, or, in a business capacity, manage, control, participate in, consult with,
render services for, be employed by, or in any manner engage in, any business
or entity competing with the businesses of the Company or its Subsidiaries as
such businesses exist or are in process during the Employment Period or on the
date of the termination of the Employment Period, within any geographical area
in which the Company or its Subsidiaries engage in such business or actively
plan to engage in such businesses at the time of Executive’s departure from the
Company.  Nothing herein shall prohibit
Executive from being a passive owner of not more than 2% of the outstanding
stock of any class of a corporation which is publicly traded, so long as
Executive has no active participation in the business of such corporation.  For purposes of this Agreement, competitors
of the Company shall include, but not be limited to, the companies listed in Exhibit D
hereto.


 


(b)           In addition, during the Noncompete
Period, Executive shall not, other than with the prior written consent of the
Company, directly or indirectly through another person or entity (i) induce
or attempt to induce any employee of the Company or any Subsidiary to leave the
employ of the Company or such Subsidiary, or in any way interfere with the
relationship between the Company or any Subsidiary and any employee thereof, (ii) hire
any person who was an employee of the Company or any Subsidiary during the
6-month period prior to the date of Executive’s employment termination or (iii) induce
or attempt to induce any customer, supplier, licensee, licensor, franchisee or
other business relation of the Company or any Subsidiary with whom Executive
had any material contact while employed by the Company to cease doing business
with the Company or such Subsidiary, or in any way interfere with the
relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary. 
During and after the Employment Period, Executive shall not directly or
indirectly through another person or entity disparage, criticize, defame,
slander or otherwise make any negative statements or communications regarding
the Company or its 


 


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Subsidiaries or affiliates or their respective past and present
investors, officers, directors or employees.


 


8.     Enforcement. 
If, at the time of enforcement of paragraphs 5, 6 or 7 of this
Agreement, a court holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law. 
Because Executive’s services are unique and because Executive has access
to Confidential Information and Work Product, the parties hereto agree
that the restrictions contained in paragraphs 5, 6 and 7 are necessary for the
protection of the business and goodwill of the Company and the Company and its
Subsidiaries would suffer irreparable harm from a breach of paragraphs 5, 6 or
7 by Executive and that money damages would not be an adequate remedy for any
such breach of this Agreement. 
Therefore, in the event a breach or threatened breach of this Agreement,
the Company and its Subsidiaries and their successors or assigns, in addition
to other rights and remedies existing in their favor, shall be entitled to
specific performance and/or injunctive or other equitable relief from a court
of competent jurisdiction in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security).  In addition, in the event of a breach or
violation by Executive of paragraph 7, the Noncompete Period shall be
automatically extended by the amount of time between the initial occurrence of
the breach or violation and when such breach or violation has been duly
cured.  Executive acknowledges that the
restrictions contained in paragraph 7 are reasonable and that he has reviewed
the provisions of this Agreement with his legal counsel.


 


9.     Additional Acknowledgments. 
In addition, Executive acknowledges that the provisions of paragraphs 5,
6 and 7 are in consideration of employment with the Company and additional good
and valuable consideration as set forth in this Agreement.  Executive also acknowledges that (i) the
restrictions contained in paragraphs 5, 6 and 7 do not preclude Executive from
earning a livelihood, nor do they unreasonably impose limitations on Executive’s
ability to earn a living, (ii) the business of the Company and its
Subsidiaries is international in scope and without geographical limitation and (iii) notwithstanding
the state of formation or principal office of the Company or residence of any
of its executives or employees (including Executive), the Company and its
Subsidiaries have business activities and have valuable business relationships
within its industry throughout the world. 
Executive agrees and acknowledges that the potential harm to the Company
and its Subsidiaries of the non-enforcement of paragraphs 5, 6 and 7 outweighs
any potential harm to Executive of its enforcement by injunction or
otherwise.  Executive acknowledges that
he has carefully read this Agreement and has given careful consideration to the
restraints imposed upon Executive by this Agreement and is in full accord as to
their necessity for the reasonable and proper protection of confidential and
proprietary information of the Company and its Subsidiaries now existing or to
be developed in the future and the Company’s good will and that each and every
restraint imposed by this Agreement is reasonable with respect to subject
matter, time period and geographical area. 
If any restriction set forth in
this Section 7 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of activities
or geographic area as to which it may be enforceable


 


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10.   Executive’s Representations. 
Executive hereby represents and warrants to the Company that (i) the
execution, delivery and performance of this Agreement by Executive do not and
shall not conflict with, breach, violate or cause a default under any contract,
agreement, instrument, order, judgment or decree to which Executive is a party
or by which he is bound, (ii) Executive is not a party to or bound by any
employment agreement, noncompete agreement, confidentiality agreement or other
restriction with any other person or entity, which would be breached by
entering into this Agreement and (iii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its terms.  Executive hereby acknowledges and represents
that he has consulted with independent legal counsel regarding his rights and
obligations under this Agreement and that he fully understands the terms and
conditions contained herein.


 


11.   Survival.  Paragraphs 5
through 9, and 27 shall survive and continue in full force in accordance with
their terms notwithstanding the termination of the Employment Period.


 


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


 


Notices to Executive:


 


Richard Gaynor


1⁄2 Split Rock Road


Exeter, NH 03833


 


Notices to the Company:


 


GT
Solar International, Inc.

243
Daniel Webster Highway

Merrimack, NH 03054  

Attn:
General Counsel


 


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, sent or mailed.


 


13.   Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement or any action in any other jurisdiction, but this


 


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Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.


 


14.   Complete Agreement. 
This Agreement, the offer letter dated January 27, 2010, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof
in any way.


 


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


 


16.   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.


 


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


 


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


 


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


 


20.   Insurance.  The Company
may, at its discretion, apply for and procure in its own name and for its own
benefit life and/or disability insurance on Executive in any amount or amounts
considered advisable.  Executive agrees
to cooperate in any medical or other examination, supply any information and
execute and deliver any applications or other instruments in writing as may be
reasonably necessary to obtain and constitute such insurance.


 


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Executive hereby represents that he has no reason to
believe that his life is not insurable at rates now prevailing for healthy men
of his age.


 


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


 


22.   Arbitration.  The Company and Executive mutually agree that
any claim or controversy arising out of or relating to this Agreement or
any breach thereof, or otherwise arising out of or relating to Executive’s employment,
compensation and benefits with the Company or the termination thereof,
including any claim for discrimination under any local, state or federal
employment discrimination law shall be settled by arbitration under
the American Arbitration Association (“AAA”) Employment Arbitration
and Mediation Procedures.  Any claim or
controversy not submitted to arbitration in accordance with this paragraph
shall be waived, and thereafter no arbitration panel or tribunal or court shall
have the power to rule or make any award on any such claim or
controversy.  The award rendered in any
arbitration proceeding held under this paragraph shall be final and binding,
and judgment upon the award may be entered in any court having
jurisdiction thereof.  Claims for workers’
compensation or unemployment compensation benefits are not covered by this
paragraph.  Also not covered by this
paragraph are claims by the Company or by Executive for temporary restraining
orders, preliminary injunctions or permanent injunctions (“equitable relief”)
in cases in which such equitable relief would be otherwise authorized by law or
pursuant to paragraph 8 herein.  The
Company shall be responsible for paying any filing fee of the sponsoring
organization and the fees and costs of the arbitrator; provided, however,
that if Executive is the party initiating the claim, he will contribute an
amount equal to the filing fee to initiate a claim in the court of general
jurisdiction in the state in which Executive is (or was last) employed by the
Company.  Each party shall pay for its
own costs and attorneys’ fees, if any.


 


23.   Consent to Jurisdiction.  EACH OF THE PARTIES IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW HAMPSHIRE AND ANY COURT OF THE STATE OF NEW HAMPSHIRE, FOR PURPOSES OF
ANY DISPUTES AND CLAIMS UNDER PARAGRAPHS 5, 6 AND 7 AND FOR THE ENFORCEMENT OF
ANY FINAL DETERMINATION.  EACH OF THE
PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR
DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE ADDRESS SET FORTH
ABOVE SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR PROCEEDING
IN NEW HAMPSHIRE WITH RESPECT TO ANY MATTERS TO WHICH IT HAS
SUBMITTED TO JURISDICTION IN THIS PARAGRAPH 23. 
EACH OF THE 


 


11

















 


PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY OBJECTION TO THE LAYING OF VENUE OF ANY DISPUTES AND CLAIMS UNDER
PARAGRAPHS 5, 6 AND 7 AND FOR THE ENFORCEMENT OF ANY FINAL DETERMINATION AND
THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
AND ANY COURT OF THE STATE OF NEW HAMPSHIRE, AND HEREBY AND THEREBY FURTHER
IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


24.   Waiver of Jury Trial.  AS A SPECIFICALLY BARGAINED FOR INDUCEMENT
FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE
OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE
RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN
ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.


 


25.   Corporate Opportunity.  Executive shall submit to the Board all
business, commercial and investment opportunities, or offers presented to
Executive or of which Executive becomes aware at any time during the Employment
Period which relate to the business of the Company  (“Corporate Opportunities”).  Unless approved by the Board, Executive shall
not accept or pursue, directly or indirectly, any Corporate Opportunities on
Executive’s own behalf.


 


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


 


27.   Payments Subject to Section 409A.  Subject to the
provisions in this Section 27, any severance payments or benefits under
this Agreement shall begin only upon the date of Executive’s “separation from
service” (determined as set forth below) which occurs on or after the date of
termination of Executive’s employment. 
The following rules shall apply with respect to distribution of the
payments and benefits, if any, to be provided to Executive under this
Agreement:


 


(a)   It is
intended that each installment of the severance payments and benefits provided
under this Agreement shall be treated as a separate “payment” for purposes of Section 409A
of the Code and the guidance issued thereunder (“Section 409A”).  Neither the Company 


 


12

















 


nor Executive shall have the right to accelerate or defer the delivery
of any such payments or benefits except to the extent specifically permitted or
required by Section 409A.


 


(b)   If, as of
the date of Executive’s “separation from service” from the Company, Executive
is not a “specified employee” (within the meaning of Section 409A), then
each installment of the severance payments and benefits shall be made on the
dates and terms set forth in this Agreement.


 


(c)   If, as of the date of Executive’s “separation
from service” from the Company, Executive is a “specified employee” (within the
meaning of Section 409A), then:


 


(i)            Each
installment of the severance payments and benefits due under this Agreement
that, in accordance with
the dates and terms set forth herein, will in all circumstances, regardless of
when the separation from service occurs, be paid within the
Short-Term Deferral Period (as hereinafter defined), shall be treated as a
short-term deferral within the meaning of Treasury Regulation § 1.409A-1(b)(4) to
the maximum extent permissible under Section 409A.  For purposes of this Agreement, the “Short-Term
Deferral Period” means the period ending on the later of the fifteenth day of
the third month following the end of Executive’s tax year in which the separation
from service occurs and the fifteenth day of the third month following the end
of the Company’s tax year in which the separation from service occurs; and


 


(ii)           Each
installment of the severance payments and benefits due under this Agreement
that is not described in paragraph c(i) above and that would, absent this
subsection, be paid within the six-month period following Executive’s “separation
from service” from the Company shall not be paid until the date that is six
months and one day after such separation from service (or, if earlier,
Executive’s death), with any such installments that are required to be delayed
being accumulated during the six-month period and paid in a lump sum on the
date that is six months and one day following Executive’s separation from
service and any subsequent installments, if any, being paid in accordance with
the dates and terms set forth herein; provided, however, that the
preceding provisions of this sentence shall not apply to any installment of
severance payments and benefits if and to the maximum extent that that such
installment is deemed to be paid under a separation pay plan that does not
provide for a deferral of compensation by reason of the application of Treasury
Regulation § 1.409A-1(b)(9)(iii) (relating to separation pay upon an
involuntary separation from service). 
Any installments that qualify for the exception under Treasury
Regulation § 1.409A-1(b)(9)(iii) must be paid no later than the last
day of Executive’s second taxable year following the taxable year in which the
separation from service occurs.


 


(d)   The
determination of whether and when Executive’s separation from service from the Company has
occurred shall be made and in a manner consistent with, and based on the
presumptions set forth in, Treasury Regulation § 1.409A-1(h).  Solely for purposes of this paragraph d, “Company” shall include
all persons with whom the Company would be considered a single employer under Section 414(b) and
414(c) of the Code.


 


13

















 


(e)   All
reimbursements and in-kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of Section 409A to the
extent that such reimbursements or in-kind benefits are subject to Section 409A,
including, where applicable, the requirements that (i) any reimbursement
is for expenses incurred during Executive’s lifetime (or during a shorter
period of time specified in this Agreement), (ii) the amount of expenses
eligible for reimbursement during a calendar year may not affect the expenses
eligible for reimbursement in any other calendar year, (iii) the
reimbursement of an eligible expense will be made on or before the last day of
the calendar year following the year in which the expense is incurred and (iv) the
right to reimbursement is not subject to set off or liquidation or exchange for
any other benefit.


 


(f)    This
Agreement is intended to comply with the provisions of Section 409A and
the Agreement shall, to the extent practicable, be construed in accordance
therewith.  The Company makes no
representation or warranty and shall have no liability to Executive or any
other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A and do not satisfy an exemption
from, or the conditions of, Section 409A.


 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement on February 23,
2010.


 


	
   

  	
  GT SOLAR INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Gutierrez

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Richard Gaynor

  
	
   

  	
  RICHARD GAYNOR

  



 


14

















 


Exhibit A


 


EXECUTIVE
INCENTIVE PROGRAM


 


1

















 


Exhibit B


 


FORM OF  RESTRICTED STOCK UNIT AGREEMENT


 


1

















 


Exhibit C


 


FORM OF STOCK
OPTION AGREEMENT


 


2

















 


Exhibit D


 


GENERAL
RELEASE


 


VIA HAND DELIVERY


 


[Insert
Date]


 


Mr. Richard
Gaynor


1⁄2
Splir Rock Road


Exeter,
NH 03833


 


Dear Richard:


 


Pursuant to paragraph 4(a) of the Employment Agreement dated as
of  February XX, 2010 between GT
Solar International, Inc. (the “Company”) and you (the “Employment
Agreement”), the Company is hereby providing you with thirty (30) days prior
notice that it is terminating your employment with the Company without Cause [modify as applicable if Executive resigns with Good Reason (as defined
in the Employment Agreement)]. 
Your employment with the Company, therefore, will terminate on [Insert date 30 days out] (the “Termination Date”).  You are eligible to receive the severance
benefits described in paragraph 2 below if you sign and return this letter
agreement to [Insert Name and Address] no
earlier than the Termination Date and no later than [Insert
Date] and it becomes binding between the Company and you; provided,
however, that you may not sign this letter agreement prior to the close
of business on your Termination Date.  By
timely signing and returning this letter agreement and not revoking your
acceptance, you will be agreeing to the terms and conditions set forth in the
numbered paragraphs below, including the release of claims set forth in
paragraph 3.  Therefore, you are advised
to consult with an attorney before signing this letter agreement and you have at
least 21 days to do so.  If you sign this
letter agreement, you may change your mind and revoke your agreement during the
seven-day period after you have signed it by notifying me in writing.  If you do
not so revoke, this letter agreement will become a binding agreement between
the Company and you upon the expiration of the seven-day revocation period.


 


If you choose not to sign and return this letter agreement by [Insert Date], or if you timely revoke your acceptance in
writing, you shall not receive any severance benefits from the Company.  You will, however, receive payment on your Termination Date, as defined below, for
your final wages and any unused vacation time accrued  through
the Termination Date.  Also, regardless
of signing this letter agreement, you may elect to continue receiving group
medical insurance pursuant to the federal “COBRA” law, 29 U.S.C. § 1161 et
seq.  All premium costs for “COBRA”
shall be paid by you on a monthly basis for as long as, and to the extent that,
you remain eligible for COBRA continuation. 
You should consult the COBRA materials to be provided by the Company for
details regarding these benefits.  All
other benefits will cease upon your Termination Date in accordance with the
plan documents.


 


The following numbered paragraphs set forth the terms and conditions
that will apply if you timely sign and return this letter agreement and do not
revoke it in writing within the seven (7) day revocation period.


 


1

















 


1.     Termination Date
- Your effective date of termination from the Company is [Insert Date] (the “Termination Date”).


 


2.     Description of Severance Benefits - If you timely sign and return this
letter agreement and do not revoke your acceptance, the Company shall provide you
with the following severance benefits pursuant to paragraph 4(b) of the
Employment Agreement:


 


(a)   The Company
will pay you severance pay at your current base salary rate for 12 months following the Termination Date
(the “Severance Pay Period”).  This severance
pay will be paid in equal installments in accordance with the Company’s normal
payroll procedures but in no event will commence earlier than the eighth (8th)
day after execution of this letter agreement.


 


(b)   Effective
as of the Termination Date, you shall be considered to have elected to continue
receiving group medical and dental insurance pursuant to the federal “COBRA”
law, 29 U.S.C. § 1161 et  seq. 
During the Severance Pay Period, the Company shall continue to pay the
share of the premium for such coverage that is paid by the Company for active
and similarly-situated employees who receive the same type of coverage.  The remaining balance of any premium costs,
and all premium costs after the Severance Pay Period, shall be paid by you on a
monthly basis for as long as, and to the extent that, you remain eligible for
COBRA continuation.  You should consult
the COBRA materials to be provided by the Company for details regarding these
benefits.


 


3.         Release - In consideration of the payment of the severance
benefits, which you acknowledge you would not otherwise be entitled to receive,
you hereby release and forever discharge as of the date hereof (on behalf of
yourself, and your heirs, executors, administrators and assigns) the Company
and its affiliates and all present and former directors, officers, agents,
representatives, employees, employee benefit plans and plan fiduciaries,
successors and assigns of the Company and its affiliates, and the Company’s
direct or indirect owners (collectively, the “Released Parties”) from
any and all claims, suits, controversies, actions, causes of action,
cross-claims, counter-claims, demands, debts, compensatory damages, liquidated
damages, punitive or exemplary damages, other damages, claims for costs and
attorneys’ fees, or liabilities of any nature whatsoever in law and in equity,
both past and present (through the date this letter agreement becomes effective
and enforceable) and whether known or unknown, suspected, or claimed against
the Company or any of the Released Parties which you, your spouse, or any of
your heirs, executors, administrators or assigns, may have, including, but not
limited to, any and all claims that arise out of or are connected with your
employment with, or your separation or termination from, the Company
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans With
Disabilities Act of 1990, 42 U.S.C. § 12101 et  seq., the Equal
Pay Act of 1963, 29 U.S.C. § 206(d), the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et  seq., the Family and Medical Leave
Act, 29 U.S.C. § 2601 et  seq., the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. § 2101 et  seq., Section 806
of the Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C.
1514(A), the Fair Credit Reporting Act, 15 U.S.C. § 1681 et  seq.,
Executive Order 11246, Executive Order 11141, the Rehabilitation Act of 1973,
29 U.S.C. § 701, et  seq., the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 


 


2

















 


U.S.C. § 1001 et  seq., the New
Hampshire Law Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:1
et  seq., N.H. Rev. Stat. Ann. § 275:36 et  seq.
(New Hampshire equal
pay law), and the New Hampshire Whistleblowers’ Protection Act, N.H. Rev. Stat.
Ann. § 275-E:1 et  seq., all as amended; or under any
other federal, state or local civil or human rights law, or under any other
local, state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any policies,
practices or procedures of the Company; or any claim for wrongful discharge,
breach of contract, infliction of emotional distress, defamation; or any claim
for costs, fees, or other expenses, including attorneys’ fees incurred in these
matters or any claim or damage arising out of your employment with and/or
separation from the Company (including a claim for retaliation)) (all of the
foregoing collectively referred to herein as the “Claims”); provided,
however, that nothing in this letter agreement prevents you from filing
a charge with, cooperating with or participating in any proceeding before the
Equal Employment Opportunity Commission or a state fair employment practices
agency (except that you acknowledge that you may not be able to recover any
monetary benefits in connection with any such claim, charge or proceeding).


 


3.     Notwithstanding the foregoing, this release does not include and
will not preclude a claim for or with respect to (a) salary payable
through the Termination Date, or accrued, unused vacation time as recorded on
the Company’s books as of the Termination Date; (b) vested benefits under
any welfare, retirement, deferred compensation plan and/or other employee
benefit plan (c) your COBRA rights; (d) payments under this letter
agreement; (e) claims for unemployment compensation; (f) rights to
defense and indemnification, if any, from the Company under its Directors and
Officers policy or otherwise for actions taken by you in the course and scope
of your employment with the Company and its subsidiaries and affiliates; (g) claims,
actions or rights arising under or to enforce the terms of this letter
agreement and (h) claims that cannot be released by law.


 


4.     Recovery, Representations
and Agreements - In signing this letter agreement, you
acknowledge and intend that it shall be effective as a bar to each and every
one of the Claims hereinabove mentioned or implied, except as otherwise
provided in paragraph 3 above.  You
expressly consent that this letter agreement shall be given full force and
effect according to each and all of its express terms and provisions, including
those relating to unknown and unsuspected Claims (notwithstanding any state
statute that expressly limits the effectiveness of a letter agreement of
unknown, unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied.  You acknowledge and agree that this waiver is
an essential and material term of this letter agreement and that without such
waiver the Company would not have agreed to the terms of the Employment
Agreement or this letter agreement.  You
further agree that in the event you should bring a Claim seeking damages
against the Company, or in the event you should seek to recover against the
Company in any Claim brought by a governmental agency on your behalf, this
letter agreement shall serve as a complete defense to any monetary relief related
to any such Claims.  You further agree
that you are not aware of any pending claim of the type described in paragraph
3 as of the execution of this letter agreement. 
You represent that you have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by paragraph 3
above.  You agree that this letter
agreement does not waive or release any rights or claims that you may have
under the Age Discrimination in Employment Act of 1967 which arise after the
date you execute this letter


 


3






 












 


agreement.  You
acknowledge and agree that your separation from employment with the Company
shall not serve as the basis for any claim or action (including, without
limitation, any claim under the Age Discrimination in Employment Act of 1967).


 


5.     Non-Disclosure,
Non-Competition, Non-Solicitation and Inventions Obligations  -  You
acknowledge and reaffirm your obligations under paragraphs 5, 6 and 7 of the
Employment Agreement, including, but not limited to, your obligation to keep
confidential and not to disclose any and all non-public information concerning
the Company that you acquired during the course of your employment with the
Company, as well as your non-competition, non-solicitation and inventions
obligations.


 


6.     Return of Company Property
— You agree that as of the date hereof, you have returned to the Company any
and all property, tangible or intangible, relating to its business, which you
possessed or had control over at any time (including, but not limited to,
company-provided credit cards, building or office access cards, keys, computer
equipment, manuals, files, documents, records, software, customer data base and
other data) and that you shall not retain any copies, compilations, extracts,
excerpts, summaries or other notes of any such manuals, files, documents,
records, software, customer data base or other data.


 


7.     Non-Disparagement
- You agree that you will not, directly or indirectly through another person or
entity, disparage, criticize, defame, slander or otherwise make any negative
statements or communications regarding the Company or its affiliates or their
respective past and present investors, officers, directors or employees.  The Company agrees that its officers and
Board of Directors will not, directly or indirectly through another person or
entity, disparage, criticize, defame, slander or otherwise make any negative
statements or communications regarding you.


 


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


 


9.     Breach - You
agree that, if you breach this letter agreement, you will (i) return to
the Company any amount paid by the Company in connection with your separation
or termination from the Company and pursuant to the Employment Agreement and
this letter agreement and (ii) forfeit all remaining amounts payable by
the Company pursuant to the Employment Agreement and this letter
agreement.  Notwithstanding anything in
this letter agreement to the contrary, this letter agreement shall not
relinquish, diminish, or in any way 


 


4

















 


affect any rights or claims arising out of any breach
by the Company or by any Released Party of the Employment Agreement after the
date hereof.


 


10.   Validity - Whenever possible, each provision of this
letter agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this letter 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 or any other
jurisdiction, but this letter agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


11.   Nature of Agreement  - You agree that neither this letter agreement, nor
the furnishing of the consideration for this letter agreement, shall be deemed
or construed at any time to be an admission by the Company, any Released Party
or yourself of any improper or unlawful conduct.


 


12.   Understandings — You understand that any payments or
benefits paid or granted to you under paragraph
4(b) of the Employment Agreement represent, in part, consideration for
signing this letter agreement and are not salary, wages or benefits to which
you were already entitled.  You
understand and agree that you will not receive the payments and benefits
specified in paragraph 2 herein unless you execute this letter agreement and do
not revoke this letter agreement within the time period permitted hereafter or
breach this letter agreement.  Such
payments and benefits will not be considered compensation for purposes of any
employee benefit plan, program, policy or arrangement maintained or hereafter
established by the Company or its affiliates. 
You also acknowledge and represent that you have received all payments
and benefits that you are entitled to receive (as of the date hereof) by virtue
of any employment by the Company.


 


13.   Acknowledgments
- By signing this letter agreement, you represent and agree that: (i) you
have read it carefully; (ii) you understand all of its terms and know that
you are giving up important rights, including but not limited to, rights under
the Age Discrimination in Employment Act of 1967, as amended; Title VII of the
Civil Rights Act of 1964, as amended; the Equal Pay Act of 1963; the Americans with
Disabilities Act of 1990; and the Employee Retirement Income Security Act of
1974, as amended; (iii) you voluntarily consent to everything in it; (iv) you
have been advised to consult with an attorney before executing it; (v) you
have been given all time periods required by law to consider this letter
agreement, including the 21-day period required by the Age Discrimination in
Employment Act; (vi) you understand that you have seven days after the
execution of this letter agreement to revoke it, and such revocation must be in
writing and delivered to [Insert Name]
before the expiration of the revocation period, and that this letter agreement
shall not become effective or enforceable until the revocation period has
expired; (vii) you have signed this letter agreement knowingly and
voluntarily and with the advice of any counsel retained to advise you with
respect to it; and (viii) you agree that the provisions of this letter
agreement may not be amended, waived, changed or modified except by an
instrument in writing signed by an authorized representative of the Company and
you.


 


5

















 


14.   Entire Agreement
- This letter agreement and the paragraphs that survive pursuant to paragraph
11 of the Employment Agreement 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.


 


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


 


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


 


17.   Counterparts
- This letter 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.


 


18.   Successors and Assigns
- This letter agreement is intended to bind and inure to the benefit of and be
enforceable by you, the Company and their respective heirs, successors and
assigns, except that you may not assign your rights or delegate your duties or
obligations hereunder without the prior written consent of the Company.


 


19.   Choice of Law
- All issues and questions concerning the construction, validity, enforcement
and interpretation of this letter 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
(whether of the State of New Hampshire or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
New Hampshire.  In furtherance of the
foregoing, the internal law of the State of New Hampshire shall control the
interpretation and construction of this letter agreement (and all schedules and
exhibits hereto), even though under that jurisdiction’s choice of law or
conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.


 


20.   Amendment and Waiver
- The provisions of this letter agreement may be amended or waived only with
the prior written consent of the Company and you, and no course of conduct or
course of dealing or failure or delay by any party hereto in enforcing or
exercising any of the provisions of this letter agreement shall affect the
validity, binding effect or enforceability of this letter agreement or be
deemed to be an implied waiver of any provision of this letter agreement.


 


21.   Indemnification and
Reimbursement of Payments on Behalf of You -   The Company and its Subsidiaries shall be
entitled to deduct or withhold from any amounts 


 


6

















 


owing from the Company or any of its Subsidiaries to
you any federal, state, local or foreign withholding taxes, excise tax or
employment taxes (“Taxes”) imposed with respect to the severance benefits
described herein.


 


22.   Arbitration - The Company
and you mutually agree that any claim or controversy arising out
of or relating to this letter agreement or any breach thereof, or otherwise
arising out of or relating to your employment, compensation and benefits with
the Company or the termination thereof, including any claim for discrimination
under any local, state or federal employment discrimination
law shall be settled by arbitration under the American
Arbitration Association (“AAA”) Employment Arbitration and Mediation
Procedures.  Any claim or controversy not
submitted to arbitration in accordance with this paragraph shall be waived, and
thereafter no arbitration panel or tribunal or court shall have the power to rule or
make any award on any such claim or controversy.  The award rendered in any arbitration
proceeding held under this paragraph shall be final and binding, and judgment
upon the award may be entered in any court having jurisdiction thereof.  Claims for workers’ compensation or
unemployment compensation benefits are not covered by this paragraph.  Also not covered by this paragraph are claims
by the Company or by you for temporary restraining orders, preliminary
injunctions or permanent injunctions (“equitable relief”) in cases in which
such equitable relief would be otherwise authorized by law or pursuant to
paragraph 8 of the Employment Agreement. 
The Company shall be responsible for paying any filing fee of the
sponsoring organization and the fees and costs of the arbitrator; provided,
however, that if you are the party initiating the claim, you will
contribute an amount equal to the filing fee to initiate a claim in the court
of general jurisdiction in the state in which you are (or were last) employed
by the Company.  Each party shall pay for
its own costs and attorneys’ fees, if any.


 


23.   Consent to Jurisdiction
- EACH OF THE PARTIES IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE AND ANY COURT OF THE STATE OF NEW HAMPSHIRE, FOR PURPOSES OF ANY
DISPUTES AND CLAIMS UNDER PARAGRAPHS 5, 6 AND 7 OF THE EMPLOYMENT AGREEMENT AND
FOR THE ENFORCEMENT OF ANY FINAL DETERMINATION. 
EACH OF THE PARTIES HERETO FURTHER AGREES THAT SERVICE OF ANY PROCESS,
SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO SUCH PARTY’S RESPECTIVE
ADDRESS SET FORTH IN THE EMPLOYMENT AGREEMENT SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY ACTION, SUIT OR PROCEEDING IN NEW HAMPSHIRE WITH RESPECT TO ANY
MATTERS TO WHICH IT HAS SUBMITTED TO JURISDICTION IN THIS PARAGRAPH 24.  EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY DISPUTES AND
CLAIMS UNDER PARAGRAPHS 5, 6 AND 7 AND FOR THE ENFORCEMENT OF ANY FINAL
DETERMINATION AND THEREBY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW HAMPSHIRE AND ANY COURT OF THE STATE OF NEW HAMPSHIRE, AND HEREBY AND
THEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


7

















 


24.   Waiver of Jury Trial
- AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO
ENTER INTO THIS LETTER AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH
COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS LETTER
AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.


 


If you have any questions about the matters covered in this letter
agreement, please call me at [insert phone number].


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [Insert Name]

  
	
   

  	
   

  	
  [Insert Title]

  



 


 


I hereby agree to the terms and conditions set forth above.  I have been given at least 21 days to
consider this letter agreement and I have chosen to execute this on the date
below.  I intend that this letter
agreement will become a binding agreement between the Company and me if I do
not revoke my acceptance in writing in seven days.


 


	
   

  	
   

  	
   

  
	
  Richard Gaynor

  	
   

  	
  Date

  



 


To be returned  by [Insert Date].


 


8

















Exhibit D


 


COMPETITIVE COMPANIES


 


	
  1.

  	
   

  	
  Spire

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  ALD / AMG

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  PVA / Tepla / CGS

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Centrotherm / S: Q

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  JFE

  
	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Dai-Ichi Kiden

  
	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Rena

  
	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Solmic

  
	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  SIC

  
	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Applied Materials / HCT / Baccini

  
	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Manz

  
	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Stangl

  
	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Schmid

  
	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  OTB

  
	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  NPC

  
	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Komax

  
	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Eco Progetti

  
	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Nishimbo

  
	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  PEnergy

  
	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Somont

  
	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  T-Technik

  
	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  MSA

  
	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  JYT

  
	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Ferrotec

  
	
   

  	
   

  	
   

  
	
  25.

  	
   

  	
  Kayex

  
	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  Roth & Rau

  
	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  Logomatic (KR Solar)

  
	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Cyberstar

  
	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Glosil

  
	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  Jinggong

  
	
   

  	
   

  	
   

  
	
  31.

  	
   

  	
  Concard