Exhibit 10.52


 


GT Solar Incorporated


243 Daniel Webster Highway


Merrimack, New Hampshire 03054


 


EMPLOYMENT AGREEMENT AMENDMENT FOR CODE SECTION 409A


 


December 31, 2008


 


David
W. Keck


191
Kelsey Lane


Butte,
MT 59701


 


Dear
Mr. Keck,


 


This letter agreement (the “Amendment”) shall
amend the Employment Agreement, dated as of April 12, 2006, as amended by
that letter agreement dated January 16, 2007 (as so amended, the “Employment
Agreement”), between you (the “Executive”) and GT Equipment
Technologies, Inc. (now known as GT Solar Incorporated, the “Company”).  All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Employment
Agreement.  Except as modified by this
Amendment, the Employment Agreement shall remain in full force and effect, and
this Amendment shall not serve in any manner as a waiver or a novation of the
Executive’s duties or obligations under the Employment Agreement; provided,
that in the event that any provision in this Amendment conflicts with the
Employment Agreement or any other agreement, policy, plan or arrangement
between the Executive and the Company, the terms of this Amendment shall
govern.


 


You agree and acknowledge that notwithstanding any
other provision of the Employment Agreement to the contrary, the Employment
Agreement is hereby amended as follows:


 


1.                                       Section 3(b) of
the Employment Agreement is amended and restated in its entirety as follows:


 


“(b)                           Bonus.  The Executive shall be eligible during each
twelve (12) months of the Term (“Bonus Period”) to receive a cash bonus
(“Bonus”) calculated as Eight Thousand Dollars ($8,000.00) for each One
Million Dollars ($1,000,000) in confirmed bookings by the Company from the sale
of silicon production equipment and related engineering services (“Bonus Sales”)
during a given twelve month Bonus Period for which a Bonus is calculated,
provided that the combined amount payable for Base Salary and Bonus during any
twelve month Bonus Period shall not exceed One Million Five Hundred Thousand
Dollars ($1,500,000).  Bonuses will be
payable as follows for sales for which a Bonus is payable:  (i) fifteen percent (15%) upon the
Company’s receipt of the customer deposit for such sale, (ii) forty-five
percent (45%) upon shipment of the equipment that is the subject of such sale,
and (iii) forty percent (40%) upon final payment by the customer of the
remainder of the purchase price for such sale. 
Any payments payable to Executive 


 

















 


pursuant
to this Section 3(b) shall be paid to Executive (X) only
if Executive is employed by the Company on the last day of the Company’s
calendar quarter during which the triggering event described in clauses (i),
(ii), (iii) or (iv) of the preceding sentence occurred, and (Y) in
the calendar quarter immediately following the calendar quarter in which such
triggering event occurred.”


 


2.                                       Section 3(b) of
the Employment Agreement is amended and restated in its entirety as follows:


 


“(c) Long-Term
Incentive. The Executive shall be considered for equity awards by GT Solar
International, Inc., the Company or such other company established by the
Company as the operating entity for the development and sale of silicon
production equipment and related engineering services, subject to approval of
the Board.”


 


3.                                       Section 4(d) of
the Employment Agreement is amended by inserting the following new paragraph
immediately preceding the second to last paragraph of such Section:


 


“Any
payment or benefit contemplated under Section 4(d)(i) or (ii) shall
be subject to the Release delivered pursuant thereto having been executed and
no longer subject to revocation, in each case within 60 days of the Termination
Date.”


 


4.                                       Clause (iii) of
Section 4(d)(i) of the Employment Agreement is amended and restated
in its entirety as follows:


 


“cash
severance payments equal in the aggregate to the Executive’s annual Base Salary
at the time of termination, payable in twelve (12) equal monthly installments
beginning as provided in Section 4(f) below and delayed as
required in Section 5 below; and”


 


5.                                       Clause (iv) of
Section 4(d)(ii) of the Employment Agreement is amended and restated
in its entirety as follows:


 


“cash
severance payments equal in the aggregate to six (6) months of the
Executive’s Base Salary at the time of termination, payable in six (6) equal
monthly installments beginning as provided in Section 4(f) below
and delayed as required in Section 5 below; and”


 


6.                                       A new Section 4(f) is
added to the Employment Agreement as follows:


 


“Once the Release described in Section 4(d)(i) or
(ii) is executed and no longer subject to revocation then the
following shall apply:


 


(i)                                     To the extent any cash
payment or continuing benefit to be provided under Section 4(d)(i) or
(ii) is not “deferred compensation” for purposes of Internal Revenue Code Section 409A
and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”),
then such payment or benefit shall commence upon the first scheduled payment
date immediately after the date the Release is executed and no longer subject
to 


 


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revocation
(the “Release Effective Date”). 
The first such cash payment shall include payment of all amounts that
otherwise would have been due prior to the Release Effective Date under the
terms of this Agreement applied as though such payments commenced immediately
upon the Termination Date, and any payments made thereafter shall continue as
provided herein.  The delayed benefits
shall in any event expire at the time such benefits would have expired had such
benefits commenced immediately following the Termination Date.


 


(ii)                                  To the extent any cash
payment or continuing benefit to be provided under Section 4(d)(i) or
(ii) is “deferred compensation” for purposes of Code Section 409A,
then such payments or benefits shall be made or commence upon the sixtieth (60)
day following the Termination Date.  The
first such cash payment shall include payment of all amounts that otherwise
would have been due prior thereto under the terms of this Agreement had such
payments commenced immediately upon the Executive’s termination of employment,
and any payments made thereafter shall continue as provided herein.”


 


7.                                       A new Section 5
is added to the Employment Agreement as follows:


 


“Section 5.  Section 409A Compliance.


 


(a)                                  The intent of
the parties is that payments and benefits under this Agreement comply with Code
Section 409A, and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be in compliance therewith.  In no event whatsoever shall the Company be
liable for any additional tax, interest or penalty that may be imposed on the
Executive by Code Section 409A or damages for failing to comply with Code Section 409A.


 


(b)                                 A termination
of employment shall not be deemed to have occurred for purposes of any
provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “separation from service” within the meaning of Code Section 409A
and, for purposes of any such provision of this Agreement, references to a “termination,”
“termination of employment” or like terms shall mean “separation from service.”


 


(c)                                  Notwithstanding
any other payment schedule provided herein to the contrary, if the Executive is
deemed on the date of termination to be a “specified employee” within the
meaning of that term under Code Section 409A(a)(2)(B), then each of the
following shall apply:


 


(i)                                     With regard to
any payment that is considered deferred compensation under Code Section 409A
payable on account of a “separation from service,” such payment shall be made
on the date which is the earlier of (A) the expiration of the six
(6)-month period measured from the date of such “separation from service” of
the Executive, and (B) the date of the Executive’s death (the “Delay
Period”) to the extent required under Code Section 409A.  Upon the expiration of the Delay 


 


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Period, all payments delayed
pursuant to this Section (whether they would have otherwise been payable
in a single sum or in installments in the absence of such delay) shall be paid
to the Executive in a lump sum, and all remaining payments due under this
Agreement shall be paid or provided in accordance with the normal payment dates
specified for them herein; and


 


(ii)                                  To the extent
that any benefits to be provided during the Delay Period is considered deferred
compensation under Code Section 409A provided on account of a “separation
from service,” and such benefits are not otherwise exempt from Code Section 409A,
the Executive shall pay the cost of such benefits during the Delay Period, and
the Company shall reimburse the Executive, to the extent that such costs would
otherwise have been paid by the Company or to the extent that such benefits
would otherwise have been provided by the Company at no cost to the Executive,
the Company’s share of the cost of such benefits upon expiration of the Delay
Period, and any remaining benefits shall be reimbursed or provided by the
Company in accordance with the procedures specified herein.


 


(d)                                 To the extent
that any agreement provides for the reimbursement of expenses or the provision
of in-kind benefits that constitute “non-qualified deferred compensation” under
Code Section 409A, the following shall apply: (i) all expenses or
other reimbursements under an agreement shall be made on or prior to the last
day of the taxable year following the taxable year in which such expenses were
incurred by the Executive; (2) any right to reimbursement or in kind
benefits is not subject to liquidation or exchange for another benefit; and (3) no
such reimbursement, expenses eligible for reimbursement, or in-kind benefits
provided in any taxable year shall in any way affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other taxable year.


 


(e)                                  For purposes of
Code Section 409A, the Executive’s right to receive any installment
payment pursuant to this Agreement shall be treated as a right to receive a
series of separate and distinct payments.


 


(f)                                    Notwithstanding
any other provision of this Agreement to the contrary, in no event shall any
payment under this Agreement that constitutes “deferred compensation” for
purposes of Code Section 409A be subject to offset by any other amount
unless otherwise permitted by Code Section 409A.”


 


[Signature page follows]


 


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  Sincerely,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GT SOLAR INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/Brian P. Logue

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Brian P. Logue

  
	
   

  	
   

  	
  Its: Vice President-Human Resources

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACCEPTED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ David W. Keck

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  David W. Keck

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: December 31, 2008

  	
   

  	
   

  



 


[Signature Page to 409A
Amendment]