Exhibit 10.56


 


GT SOLAR INTERNATIONAL, INC.


 


EMPLOYMENT
AGREEMENT


 


THIS AGREEMENT (this “Agreement”) is made as of
January 19, 2009, between GT Solar International, Inc., a Delaware
corporation (the “Company”), and David Gray (“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, Strategic
Development of the Company and shall have the normal duties, responsibilities,
functions and authority of the Vice President, Strategic Development, subject
to the power and authority of the Company’s board of directors (the “Board”)
to expand or limit such duties, responsibilities, functions and authority and
to overrule actions of officers of the Company.  During the Employment Period, Executive shall
render such administrative, executive and managerial services to the Company
and its Subsidiaries which are consistent with Executive’s position as the
Board or the Company’s President and Chief Executive Officer  may from time to time direct.


 


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


 

















 


or director of or otherwise participate in solely educational, welfare,
social, religious, sporting club and civic organizations so long as such
activities do not interfere with Executive’s employment with the Company and
its Subsidiaries.  Executive shall be
primarily based at the Company’s headquarters in Merrimack, New Hampshire.  Executive understands and agrees that his
employment will require travel from time to time.


 


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


 


3.     Compensation and Benefits.


 


(a) During the Employment Period, Executive’s
base salary shall be at the rate of $285,000 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. 
The Executive’s target bonus for FY 10 shall be 40% of base salary
pro-rated for partial year participation.   
Executive’s “Participation Date” under the EIP shall be July 1,
2009.  As special consideration in
conjunction with Executive’s hire, Executive shall be eligible to receive a
sign-on bonus of $200,000.    This
payment shall be disbursed in three installments, $80,000 on the first payroll
date following the Executive’s start date and $60,000 on the payroll following
the executives six month anniversary and $60,000 on the payroll following the
executive’s one year 


 


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anniversary.    
Installments are contingent upon the Executive being employed with the
Company on the date of payment, provided however that if the Executive’s
employment is terminated by the company without cause within the first year of
employment, any unpaid installments shall accelerate and become payable upon
the date of termination.    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 110,000 restricted stock
units (“RSUs”) in the Company. 
Timing of the grant shall be following announcement of the company’s
financial results for the third quarter of FY 09 and in accordance with the
company’s quarterly window.   First
anniversary vesting shall be adjusted accordingly to coincide with the
anniversary of the executive’s date of hire.  
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 


 


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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 day of termination
and the General Release has become effective, and only so long as Executive has
not revoked or breached the provisions of the General Release or breached the
provisions of paragraphs 5, 6 and 7 hereof. 
Executive shall not be entitled to any other salary, compensation or
benefits after termination of the Employment Period, except as specifically
provided for in the Company’s employee benefit plans or as otherwise expressly
required by applicable law.


 


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


 


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


 


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


 


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aiding or abetting a, a supplier or customer of the Company or any of
its Subsidiaries to the material disadvantage or detriment of the Company and
its Subsidiaries, (v) breach of fiduciary duty, gross negligence or
willful misconduct with respect to the Company or any of its Subsidiaries or (vi) any
other material breach of this Agreement which is not cured to the Company’s
reasonable satisfaction within fifteen (15) days after written notice to
Executive.


 


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


 


(g)   For
purposes of this Agreement, “Good Reason” shall mean if Executive
resigns from employment with the Company and its Subsidiaries prior to the end
of the Employment Period as a result of the occurrence of one or more of the
following events:  (i) the
Company  reduces the amount of the Base
Salary (other than as a result of a general across-the-board salary reduction
applicable to all senior  executives
of the Company)  (x) elects to
eliminate the EIP without permitting Executive to participate in an annual
incentive bonus plan in place of the EIP which offers a potential bonus payment
comparable to that earnable at 100% of plan target by Executive under the EIP
or (y) does not extend to Executive participation in equity plans commensurate
with Executive’s position, to the extent senior executives of the Company
participate in such equity plans, (ii) the Company changes Executive’s
title and reduces his responsibilities or authority in a manner materially
inconsistent with that of the position of 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


 


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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 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


 


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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 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


 


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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.


 


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


 


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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 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:


 


David Gray


8 Clemmons St.


Southborough, MA 01772


 


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


 


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


 


14.   Complete Agreement.  This Agreement, the offer letter dated November 20,
2008, those documents expressly referred to herein and other documents of even
date herewith embody the complete agreement and understanding among the parties
and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement on January 6,
2009, to be held in escrow and automatically released to each of the parties
and become effective as of the date first written above on page 1.


 


	
   

  	
  GT SOLAR INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Brian P. Logue

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
  Vice President Human
  Resources

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/David Gray

  
	
   

  	
  DAVID GRAY

  



 


14

















 


Exhibit A


 


EXECUTIVE
INCENTIVE PROGRAM


 


1

















 


Exhibit B


 


FORM OF  RESTRICTED STOCK UNIT AGREEMENT


 


1














Exhibit C


 


GENERAL
RELEASE


 


VIA HAND DELIVERY


 


[Insert Date]


 


Mr. David
Gray


8 Clemmons St.


Southborough, MA 01772


 


Dear David:


 


Pursuant to paragraph 4(a) of the Employment
Agreement dated as of January 19, 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).


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


5














 


14.   Entire Agreement
- This letter agreement and the paragraphs that survive pursuant to paragraph
11 of the Employment Agreement embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.


 


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


 


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


 


17.   Counterparts
- This letter agreement may be executed in separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


7

















 


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


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  [Insert Name]

  
	
   

  	
   

  	
  [Insert Title]

  



 


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


 


	
   

  	
   

  	
   

  
	
  David Gray

  	
   

  	
  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