Exhibit 10.8


 


Execution
Copy


 


GT SOLAR INTERNATIONAL, INC.


 


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT (this “Agreement”) is made
between GT Solar International, Inc., a Delaware corporation (the “Company”),
and Hoil Kim (“Executive”).


 


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


 


1.               Employment.  The Company shall employ Executive, and
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement for the period beginning on the date of
this Agreement and ending as provided in 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 General
Counsel of the Company and shall have the normal duties, responsibilities,
functions and authority of the General Counsel, 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 but will work from time to
time at the Boston offices of WilmerHale (or other appropriate location in
Boston) in accordance with the needs of the Company.  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 $305,000 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 2009 are attached as Exhibit A
hereto (the “EIP”), under which Executive may be eligible to receive a
bonus based upon the achievement of such performance targets and other conditions
as stated in the EIP; provided, however, that Executive must execute a
participant agreement with the Company prior to being deemed a participant in
the EIP.  Executive’s “Participation Date”
under the EIP shall be December 15, 2008.  As special consideration, Executive shall be
eligible to receive a flat payment of $45,000 for the FY 2009 plan year.  This payment shall be disbursed in two
installments, $22,500 on the first payroll date following the Executive’s start
date and $22,500 at the same time that all other executive bonuses are
disbursed.  Both installments are
contingent upon the Executive being employed with the Company on the date of
payment.  This $45,000 payment shall be
fixed and shall not 


 


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fluctuate based on either Company or Executive
performance.  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)                                 Subject
to the approval of the Board, Executive will be eligible to receive 140,000 restricted stock units (“RSUs”) in the Company.  The terms, restrictions, limitations and
termination provisions of the RSUs will be as set-forth in the form of an RSU
agreement attached hereto as Exhibit B 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;


 


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 date of termination and the General


 


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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 amount
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 supplier or
customer of the Company or any of its Subsidiaries to the material disadvantage
or detriment of the Company and its Subsidiaries, (v) breach of fiduciary
duty, gross negligence or willful misconduct with respect to the Company or any
of its Subsidiaries or (vi) any 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.


 


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(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 General Counsel or (iii) the Company changes Executive’s
place of work to a location outside of New Hampshire or Massachusetts; 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 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 


 


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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,
and be required to know and use, 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 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 


 


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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 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.  Nothing herein will restrict
Executive from the right to practice law following the termination of his
employment with the Company.


 


(b)                                 In
addition, during the Noncompete Period, Executive shall not 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 Subsidiaries or affiliates or their respective past and present
investors, officers, directors or employees.


 


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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


 


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


 


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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:


 


Hoil Kim


150 Fairway Road


Chestnut Hill, MA 02467


 


Notices to the Company:


 


GT
Solar International, Inc.

243 Daniel Webster Highway

Merrimack, NH 03054  

Attn: President and Chief Executive
Officer


 


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 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 November 24,
2008, those documents expressly referred to herein and other documents of even
date herewith


 


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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. 
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


 


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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).


 


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 RESPECTIVE PARTY’S 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 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


 


11

















 


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 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 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.


 


12

















 


(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.


 


(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


 


13

















 


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 January 27, 2009.


 


	
   

  	
  GT SOLAR INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas M.
  Zarrella

  
	
   

  	
   

  	
  THOMAS M.
  ZARRELLA

  
	
   

  	
   

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
    /s/
  Hoil Kim

  
	
   

  	
  HOIL KIM

  



 


14

















 


Exhibit A


 


EXECUTIVE
INCENTIVE PROGRAM


 


1














 


GT SOLAR INTERNATIONAL, INC.


 


EXECUTIVE INCENTIVE PROGRAM


 


FY 2009


 


1.             FISCAL YEAR 2009


 


The FY 2009 Executive Incentive Program (the “Program”) of GT
Solar International, Inc. (the “Company”) shall commence on April 1,
2008, and continue through and including March 31, 2009 (“FY 2009”).


 


2.             ADMINISTRATION


 


The Program shall be administered by the Compensation Committee (the “Committee”)
of the Board of Directors of the Company (the “Board”).  Subject to the provisions of the Program, the
Committee may establish from time to time such regulations, provisions,
procedures and conditions of the Program which, in its opinion, may be
advisable in the administration of the Program. 
No member of the Committee shall be liable for any action or
determination made in good faith with respect to the administration of the
Program, eligibility under the Program or the bonuses awarded under the
Program.


 


3.             ELIGIBILITY


 


The Committee shall determine, in its sole
discretion, any and all executives of the Company that will be eligible to
participate in the Program (each, a “Participant”; collectively, the “Participants”).  Participants will be eligible to participate
in the Program only upon execution of a participant agreement with the Company as set forth in Exhibit A hereto
(a “Participant Agreement”).  Each
Participant Agreement shall be subject to the terms and conditions of the
Program and may contain additional terms and conditions (which may vary from
Participant to Participant).  Unless
otherwise specified in such Participant Agreement, the date on which
Participant is deemed to be a participant in the Program (the “Participation
Date”) shall be the date on which the individual started employment with
the Company during FY 2009.


 


As soon as practicable after the Participation Date and from time to
time thereafter, the
Committee, in accordance with Section 5(B)(iv) below, shall
adopt in writing certain goals and objectives to be achieved by Participant
over the course of FY 2009.  Such goals
and objectives may vary among Participants. 
MBO Goals for the Chief Executive Officer shall be developed by
the Committee following consultation with the Chief Executive Officer on
business priorities for the plan year.


 

















 


4.             Operating Income and Bookings


 


A.            Operating Income


 


“Operating Income” for FY 2009 means, on a
consolidated basis, GAAP net income and excluding (adding to or subtracting
from as appropriate)  income taxes, interest expense, interest income and
other income/expense for such period.


 


Operating Income for FY 2009 shall be derived from the
audited consolidated financial statements of the Company and its subsidiaries
covering such period, and shall be subject to the review and approval of the
Committee, whose determination of such Operating Income calculation shall be
final and binding.


 


For FY 2009, the Company’s
target Operating Income (the “Target Operating Income”) shall be set
forth in each Participant’s Participant Agreement.


 


B.            Bookings


 


“Bookings” for any period
means the consolidated gross aggregate
amount of commitments for sales by the Company and its subsidiaries of products
and services during such period pursuant to written agreements (either through
customer contracts or customer purchase orders) with customers of the Company
or any of its subsidiaries.   In
order to qualify as a booked order, the order must be considered a “clean
non-contingent order” with a specified delivery schedule.


 


For FY 2009, the
Company’s target Bookings (the “Target Bookings”) shall be set forth in
each Participant’s Participant Agreement.


 


5.             BONUS PAYMENTS


 


A.            Determination Date


 


The amount, if any, to be paid to each Participant under the Program
(the “Bonus Payment”) shall be determined by the Committee after the
conclusion of FY 2009 following the receipt of the Company’s audited financial
statements by its independent accountants (the “Determination Date”).  Bonus Payments shall be disbursed in the
calendar year in which the FY 2009 ends as soon as administratively practicable
after the Determination Date.  All
amounts earned under the Program reflect gross dollar amounts and are,
therefore, subject to applicable withholding and taxation.


 


B.            Bonus Calculation


 


Each Participant’s Bonus Payment, if any,
shall be determined in the following manner:


 


2

















 


(i)            Target Bonus


 


The Participant Agreement for
each Participant will specify such Participant’s “Target Bonus” (which will be
based upon a percentage of Participant’s base salary).  Adjustments to base salary during the course
of FY 2009, or partial year participation due to a start date during the plan
year, shall result in a corresponding adjustment to target bonus eligibility on
a pro-rated basis.


 


(ii)           Calculation of Bonus Payment


 


Each Participant’s Bonus
Payment shall equal the sum of the “Financial Performance Component” and such
Participant’s “MBO Component.” 
Notwithstanding anything in this Program to the contrary, in no event
shall a Participant’s Bonus Payment exceed the product of two times such
Participant’s Target Bonus.


 


(iii)         Financial Performance Component


 


Each Participant’s Financial Performance Component shall equal the
product of (X) such Participant’s Target Bonus multiplied by (Y) seventy-five
percent (75%) multiplied by (Z) the Bonus Multiplier.


 


The “Bonus Multiplier” for each Participant shall be determined based
on the “Weighted Performance Factor,” as follows:


 


(a)          The
Weighted Performance Factor shall equal the sum of (X) the product of
seventy percent (70%) multiplied by the Operating Income Factor and (Y) the
product of thirty percent (30%) multiplied by the Bookings Factor.


 


(b)         The
Operating Income Factor shall equal the quotient of the Company’s actual
Operating Income for FY 2009 divided by the Target Operating Income.


 


(c)          The
Bookings Factor shall equal the quotient of the Company’s actual Bookings for
FY 2009 divided by the Target Bookings.


 


(d)         If
the Weighted Performance Factor is equal to or less than 75%, the Bonus
Multiplier shall equal 0.  If the
Weighted Performance Factor is equal to 100%, the Bonus Multiplier shall equal
1.  If the Weighted Performance Factor is
less than 100%, the Company shall decrease the Bonus Multiplier for each
Participant by 0.2 for each five percent (5%) by which the Weighted Performance
Factor is below 100% (using linear interpolation to determine the applicable
Bonus Multiplier for any intermediate decrease).  If the Weighted Performance Factor is greater
than 100%, the Company shall increase the Bonus Multiplier for each Participant
by 0.25 for each five percent (5%) by which the Weighted Performance Factor is
greater than 100% (using linear interpolation to determine the applicable Bonus
Multiplier for any intermediate increase).


 


3

















 


(e)          The
maximum Bonus Multiplier available to any Participant shall equal 2.


 


(iv)          MBO Component


 


The MBO Component, if any, for each Participant shall be determined as
follows:


 


(a)          If
the Committee determines that such Participant has not met such Participant’s
MBO Goals for FY 2009, such Participant’s MBO Component shall equal 0, subject
to the conditions reflected in paragraph (d.) below.


 


(b)         If
the Committee determines that such Participant has met such Participant’s MBO
goals for FY 2009, such Participant’s MBO Component shall equal the product of (X) such
Participant’s Target Bonus multiplied by (Y) twenty-five percent (25%)
multiplied by (Z) the Bonus Multiplier.


 


(c)          If
the Committee determines that such Participant has substantially exceeded such
Participant’s MBO goals for FY 2009, such Participant’s MBO Component shall
equal the product of (X) such Participant’s Target Bonus multiplied by (Y) fifty
percent (50%) multiplied by (Z) the Bonus Multiplier, subject to the
conditions reflected in paragraph (d.) below; provided that such Participant’s
MBO Component shall be capped such that in no event shall such Participant’s
Bonus Payment exceed the product of 2 and such Participant’s Target Bonus.


 


(d)         Discretionary
Authority - Each executive’s MBO bonus shall be calculated as reflected
above.  In order to ensure close
alignment with the earned MBO bonus and each participant’s goal attainment, the
Committee, in consultation with the CEO, shall retain discretionary authority
to adjust the MBO bonus up or down based upon an evaluation of each
participant’s performance and contribution during the plan year.


 


The Participant’s MBO Component shall be capped such that in no event
shall such Participant’s Total Bonus Payment exceed the product of 2 (200%)
times such Participant’s Total Target Bonus. The Committee shall determine
whether each Participant has not met, met or substantially exceeded such
Participant’s MBO Goals.  The Committee
shall determine the MBO Goals applicable to each Participant as follows:


 


Such Participant shall submit to the Chief Executive Officer of the
Company an initial proposal for such Participant’s MBO Goals for FY 2009.  The Chief Executive Officer shall review such
proposal, and at the Chief Executive Officer’s sole discretion, discuss such
proposal with such Participant and/or modify such proposal.  The Chief Executive Officer shall then submit
such proposal (after giving effect to any modifications the Chief Executive
Officer may have made in his or her sole discretion) to the Committee.  The Committee shall review such proposal, and
at the Committee’s sole discretion, discuss such proposal with the 


 


4

















 


Chief Executive Officer, consult with the Board on such proposal,
and/or modify such proposal.


 


Although the specific objectives and their
relative weight in determining each Participant’s MBO Goals will be determined
by the Committee and will vary for each Participant, the following is intended
to provide general guidance regarding the competencies that may be considered
in determining a Participant’s MBO Goals:


 


1.                                       Achieving corporate goals and objectives
specified for FY 2009.


 


2.                                       Developing and
executing plans and functional goals that directly and/or indirectly influence
the organization’s ability to achieve its financial goals for FY 2009.


 


3.                                       Delivering
highly effective management of operations through leadership of teams, timely
communication and the deployment of business processes and systems that
anticipate and prepare the organization for growth.


 


4.                                       Contributing to
an organizational culture where people can grow and contribute.  Actively supporting a culture that values
safety, operational excellence, initiative, innovation, teamwork and quality in
everything we do.


 


5.                                       Working
as a productive and vital member of the management team.  Building productive collaborative
relationships with peers to meet organizational challenges together as a
team.  Being responsive to the needs of
other team members and cultivating a service mentality internally within the
line of authority.


 


6.                                       Achievement
of functional financial measurements.


 


The Committee, after consultation with the Chief Executive
Officer and/or the Board at the Committee’s sole discretion, shall
determine such Participant’s MBO Goals at its sole discretion and using such
criteria as it deems reasonable for each Participant with reference to each
Participant’s specific functional objectives.


 


C.            Pro-rata Bonus Payments


 


In the event that the Participation Date of a
Participant occurs after the commencement of FY 2009, such Participant shall be
eligible for a pro-rated Bonus Payment calculated based on the number of days
such Participant was employed by the Company during FY 2009.  Unless otherwise provided in a written
agreement between the Company and Participant, no Participant shall be entitled
to receive a Bonus Payment if, prior to March 31, 2009, such Participant’s
employment with the Company is terminated for any reason.


 


5

















 


6.             AUTHORITY


 


The Committee shall have final authority to make all determinations
specified in or permitted or deemed necessary under the Program.


 


7.             MISCELLANEOUS


 


A.            Assignment and Transfer


 


No Bonus Payment or any rights or interests therein shall be assignable
or transferable by a Participant.


 


B.            No Guarantee of Employment
/ No Equity Rights


 


Nothing contained in the Program shall be
construed to create or imply a guarantee of employment for any period of
time.  Unless otherwise provided in a
written agreement between Participant and the Company, employment with the
Company is considered to be at-will and may be terminated at any time by
Participant or the Company.


 


C.            Withholding


 


The Company shall have the power and the right to deduct or withhold,
or require a Participant to remit to the Company, an amount sufficient to
satisfy any federal, state, local and foreign taxes of any kind (including, but
not limited to, the Participant’s FICA and SDI obligations) which the
Committee, in its sole discretion, deems necessary to be withheld or remitted
to comply with the Internal Revenue Code of 1986, as amended, and/or any other
applicable law, rule or regulation with respect to any Bonus Payment.
Subject to applicable law, each Participant agrees that the Company may satisfy
withholding obligations from any source of funds available to the Company and
otherwise payable to Participant, including salary payments.


 


D.            Governing Law


 


All questions pertaining to the validity, construction and administration of the Program and any
Participant’s Participant Agreement shall be determined in accordance with the
laws of the State of New Hampshire.


 


E.             Amendment and Termination
of Program


 


The Committee shall have the right in its sole discretion to amend the
Program at any time and from time to time; provided that no such
amendment shall materially and adversely affect the rights of any Participant
without the consent of such Participant.


 


F.             Severability


 


The invalidity or unenforceability of any provisions of the Program in
any jurisdiction shall not affect the validity, legality or enforceability of
the remainder of the Program in such jurisdiction or the validity, legality or
enforceability of any provision of the Program 


 


6

















 


in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.


 


*   *  
*   *   *


 


7

















 


EXHIBIT
A


 


PARTICIPANT
AGREEMENT


 


GT SOLAR INTERNATIONAL, INC.


 


PARTICIPANT AGREEMENT TO THE

EXECUTIVE INCENTIVE PROGRAM


 


Participant Agreement
made as of
[                  ]
(this “Agreement”) between GT Solar International, Inc., a Delaware
corporation (the “Company”), and [                  ]
(“Participant”). 
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the FY 2009 Executive Incentive Program (the “Program”).


 


1.             Right to Participate.  The
Company hereby grants to Participant the right to participate in the Program
pursuant to the terms and conditions thereto.


 


2.             Participant Acknowledgment. 
Attached hereto as Exhibit A is a copy of the Program.  Participant hereby acknowledges receipt of a
copy of the Program and agrees to be bound by all terms and provisions thereof.


 


3.             Participation
Date.  Participant’s Participation
Date shall be
[                  ].


 


4.             Target Operating Income and Target Bookings.  For
purposes of the Program,


 


a.               the FY 2009 Target Operating Income is
$[                          ],
and


 


b.              the
FY 2009 Target Bookings shall be
$[                          ],
and the maximum amount of Bookings attributable to the Company’s turnkey
business shall be capped such that bookings credit for non-GT equipment shall
be limited to the first
$[                          ]
in total turnkey bookings inclusive of both GT and non-GT equipment.  In the event the Turnkey business exceeds
$[                          ]
in bookings, only GT equipment shall receive bookings credit beyond the first
$[                          ]
in total turnkey bookings.


 


Please note that the Target Operating Income and
Target Bookings figures are Company Confidential and not to be disclosed
externally.


 


5.             Target
Bonus.  For purposes of the Program,
Participant’s Target Bonus shall equal
$                    
(representing       %) of Participant’s base
salary during FY 2009.


 


The table set forth on Annex
1 attached hereto illustrates the Bonus Payment available to Participant at
various Bonus Multiplier benchmarks for FY 2009.


 


6.             Individual
Goal Achievement.  Participant
acknowledges and agrees that the Bonus Payment, if any, will be subject to
Participant achieving certain individual goals and standards identified by the
Committee.  The criteria used in assessing
individual performance, 


 


A-1

















 


the weight to be assigned such criteria and such Participant’s
Performance Achievement Percentage shall be determined by the Committee in its
sole discretion.  The Bonus Payment, if
any, will be calculated in accordance with the Program.


 


7.             Binding Effect. 
This Agreement shall be binding upon and inure to the benefit of any
successors to the Company and all persons lawfully claiming under Participant.


 


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


 


9.             Future
Incentive Bonus Plans.  The Company
may in the future adopt one or more incentive plans or programs, with regard to
which the Committee shall retain the exclusive right in its sole discretion to
determine the applicable terms and to identify the persons eligible to
participate.  Nothing in this Agreement
shall be understood to grant or guarantee Participant a right to participate in
any such plan or program.


 


*   *   *  
*   *


 


A-2

















 


IN WITNESS WHEREOF, the
Company and Participant have executed this Agreement as of the date first above
written.


 


 


	
   

  	
   

  	
  GT
  SOLAR INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PARTICIPANT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Participant]

  
					



 


 


[Signature Page to Executive
Incentive Program Participant Agreement]


 














 


Exhibit B


 


FORM OF
RESTRICTED STOCK UNIT AGREEMENT


 


1

















 


GT
SOLAR INTERNATIONAL, INC.


 


RESTRICTED STOCK UNIT
AGREEMENT


 


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


 


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


 


The parties hereto agree as follows:


 


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


 


2.     Grant of the RSUs.


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


(iv)          Employee
is a resident of the [State] [Commonwealth] of [                                    ].


 


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


 


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


 


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


 


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


 


2





















 


3.     Vesting.


 


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


 


	
  Date

  	
   

  	
  Percent of RSUs Vested

  	
   

  
	
  [                                    ]

  	
   

  	
  25%

  	
   

  
	
  [                                    ]
  of each of the three years thereafter, up to and including [                                    ]

  	
   

  	
  Additional
  25%

  	
   

  



 


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


 


(c)   In addition to Section 3(a) above,
upon a termination by the Company (or any of its direct or indirect
wholly-owned Subsidiaries, as applicable) without Cause (as defined in the
Employment Agreement) or by Employee with Good Reason (as defined in the
Employment Agreement) of Employee’s employment with the Company (or any of its
direct or indirect wholly-owned Subsidiaries, as applicable) that also
constitutes a “separation from service” within the meaning of Code Section 409A
within twelve months following a Change in Control of the Company (a “Change
in Control Termination”), the RSUs shall vest as follows: (i) if the
Change in Control Termination occurs on or before [FIRST ANNIVERSARY OF GRANT DATE], 1/4th of
the RSUs shall vest on the date of the Change in Control Termination, (ii) if
the Change in Control Termination occurs after [FIRST ANNIVERSARY OF GRANT DATE] and on or before [SECOND ANNIVERSARY OF GRANT DATE], on the
date of the Change in Control Termination a number of unvested RSUs (not to
exceed the number of unvested RSUs as of immediately prior to the Change in
Control Termination) shall vest that is equal to the product of (x) 1/48th
of the RSUs and (y) the number of full months passed between [GRANT DATE] and the date
of the Change in Control Termination, and (iii) if the Change in Control
Termination occurs after [THIRD
ANNIVERSARY OF GRANT DATE], on the date of the Change in Control
Termination all remaining unvested RSUs shall vest (for the avoidance of doubt,
the vesting described in this Section 3(c) is in addition to,
and not in lieu of, any vesting described in Section 3(a) above).


 


4.     Delivery of Common Stock. 
Subject to the terms of the Plan and Section 6 below, if the RSUs
awarded by this Agreement become vested, the Company shall promptly distribute
to Employee the number of shares of Common Stock equal to the number of the
RSUs


 


3

















 


that so vested; provided that to the extent required by Code Section 409A,
delivery of shares of Common Stock upon a Participant’s “separation from
service” within the meaning of Code Section 409A shall be deferred until the six
month anniversary of such separation from service.  In connection with the delivery of the shares
of Common Stock pursuant to this Agreement, the Participant agrees to execute
any documents reasonably requested by the Company and provide therein customary
representations and warranties related to the receipt of such shares of Common
Stock.


 


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


 


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


 


7.     Definitions.


 


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


 


“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).


 


“Employment Agreement” means the Employment
Agreement dated as of [                                    ]
between the Employee and [                              ],
as amended from time to time, including any amendment by which the Company or
any direct or indirect wholly-owned subsidiary of the Company serves as
employer thereunder.


 


4

















 


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


 


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


 


“Third Party” means any person or entity who or
which (i) does not own any of the Company’s securities as of the date of
this Agreement, (ii) is not controlling, controlled by or under common
control with any person or entity that owns any of the Company’s securities as
of the date of this Agreement 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 the date of this Agreement.


 


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


 


To the Company:


 


	
   

  	
  GT Solar International, Inc.

  	
   

  
	
   

  	
  243 Daniel Webster Highway

  	
   

  
	
   

  	
  Merrimack, New Hampshire 03054

  	
   

  
	
   

  	
  Attention: General Counsel

  	
   

  



 


To Employee:


 


	
   

  	
  [                                    ]

  	
   

  
	
   

  	
  [                                    ]

  	
   

  
	
   

  	
  [                                    ]

  	
   

  



 


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


 


9.     General Provisions.


 


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


 


5





















 


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


 


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


 


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


 


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


 


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


 


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


 


6





















 


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


 


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


 


*      *      *     
*


 


7

















 


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


 


	
   

  	
  GT SOLAR INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [                               ]

  
					



 


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


 














 


Exhibit C


 


GENERAL
RELEASE


 


VIA HAND DELIVERY


 


[Insert Date]


 


Mr. Hoil Kim


150 Fairway Road


Chestnut Hill, MA 02467


 


Dear Hoil:


 


Pursuant to paragraph 4(a) of the Employment Agreement dated as of
December     , 2008 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).


 


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.


 


In exchange for the promises made in this letter
agreement, the Company agrees that this letter agreement shall be in complete
and final settlement of any and all causes of action, rights or claims, whether
known or unknown, that it has, had in the past, now have, or might now have as
of the date upon which the parties sign and execute this letter agreement, in
any way related to, connected with or arising out of your employment or its
termination.  The Company hereby releases
and forever discharges you, your heirs, executors, administrators,
beneficiaries, personal representatives and assigns, from any and all such
causes of action, rights or claims whether known or unknown that the Company
has had in the past, now have, or might now have as of the date upon which you
sign and execute this letter agreement, in any way related to, connected with
or arising out of your employment or its termination.


 


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


 


3

















 


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
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 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 to
instruct its officers and Board of Directors not to disparage, criticize,
defame, slander or otherwise make any negative statements or communications
regarding you.


 


8.     Cooperation
- You shall cooperate with the Company and its Subsidiaries in any internal
investigation, any administrative, regulatory or judicial investigation or
proceeding or any dispute with a third party as reasonably requested by the
Company (including, without limitation, 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 


 


4

















 


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 there is an arbitral or judicial determination, as the case may
be, that you have breached 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 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 


 


5

















 


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.


 


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.


 


6

















 


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 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 RESPECTIVE PARTY’S 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 


 


7

















 


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 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.


	
   

  	
   

  	
   

  
	
  Hoil Kim

  	
   

  	
  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