exv10w36





Exhibit 10.36






EMPLOYMENT AGREEMENT


          This Employment Agreement (this “Agreement”) is made this 20th day of
February, 2009, by and between First Solar, Inc., a Delaware corporation having its principal
office at 350 West Washington Street, Suite 600, Tempe, Arizona 85281 (hereinafter,
“Employer”) and Mary Elizabeth Gustafsson (hereinafter, “Employee”).


WITNESSETH:


          WHEREAS, Employer and Employee wish to enter into an agreement relating to the employment of
Employee by Employer.


          NOW, THEREFORE, in consideration of the foregoing premises, and the mutual covenants, terms
and conditions set forth herein, and intending to be legally bound hereby, Employer and Employee
hereby agree as follows:


ARTICLE I. Employment


1.1 Term; At-Will Nature of Employment. Employer shall employ Employee as a full-time,
at-will employee, and Employee shall accept employment with Employer as a full-time, at-will
employee. Employer or Employee may terminate this Agreement at any time and for any reason, with
or without cause and with or without notice, subject to the provisions of this Agreement.



1.2 Position and Duties of Employee. Employer hereby employs Employee in the initial
capacity of General Counsel for Employer and Employee hereby accepts such position. In this
position, Employee shall report to Employer’s Executive Vice President (the “Supervisor”).
Employee agrees to diligently and faithfully perform such duties as may from time to time be
assigned to Employee by the Supervisor or by Employer’s Chief Executive Officer, consistent with
Employee’s position with Employer. Employee recognizes the necessity for established policies and
procedures pertaining to Employer’s business operations, and Employer’s right to change, revoke or
supplement such policies and procedures at any time, in Employer’s sole discretion. Employee
agrees to comply with such policies and procedures, including those contained in any manuals or
handbooks, as may be amended from time to time in the sole discretion of Employer. Employee shall
be based in New York, New York but shall be required to travel to such locations as shall be
required to fulfill the responsibilities of her position.



1.3 No Salary or Benefits Continuation Beyond Termination. Except as may be required by
applicable law or as otherwise specified in this Agreement, or the Change in Control Severance
Agreement between Employer and Employee dated as of the date hereof or as may be amended from time
to time (the “Change in Control Agreement”), Employer shall not be liable to Employee for
any salary or benefits continuation beyond the date of Employee’s cessation of employment with
Employer.




 








 




1.4 Termination of Employment. Employee’s employment with Employer shall terminate upon
the earliest of: (a) Employee’s death; (b) unless waived by Employer, Employee’s
“Disability”, (which for purposes of this Agreement, shall mean either a physical or mental
condition (as determined by a qualified physician mutually agreeable to Employer and Employee)
which renders Employee unable, for a period of at least six (6) months, effectively to perform the
obligations, duties and responsibilities of Employee’s employment with Employer); (c) the
termination of Employee’s employment by Employer for Cause (as hereinafter defined); (d)
Employee’s resignation; and (e) the termination of Employee’s employment by Employer without Cause.
As used herein, “Cause” shall mean Employer’s good faith determination of: (i) Employee’s
dishonest, fraudulent or illegal conduct relating to the business of Employer; (ii) Employee’s
willful breach or habitual neglect of Employee’s duties or obligations in connection with
Employee’s employment; (iii) Employee’s misappropriation of Employer funds; (iv) Employee’s
conviction of a felony or any other criminal offense involving fraud or dishonesty, whether or not
relating to the business of Employer or Employee’s employment with Employer; (v) Employee’s
excessive use of alcohol; (vi) Employee’s unlawful use of controlled substances or other addictive
behavior; (vii) Employee’s unethical business conduct; (viii) Employee’s breach of any statutory
or common law duty of loyalty to Employer; or (ix) Employee’s material breach of this Agreement,
the Non-Competition and Non-Solicitation Agreement between Employer and Employee entered into on
the date hereof or as may be amended from time to time (the “Non-Competition Agreement”),
the Confidentiality and Intellectual Property Agreement between Employer and Employee entered into
on the date hereof or as may be amended from time to time (the “Confidentiality Agreement”)
or the Change in Control Agreement. Upon termination of Employee’s employment with Employer for
any reason, Employee will promptly return to Employer all materials in any form acquired by
Employee as a result of such employment with Employer, and all property of Employer.



1.5 Severance Payments and Vacation Pay.




          (a) Vacation Pay in the Event of a Termination of Employment. In the event of the
termination of Employee’s employment with Employer for any reason, Employee shall be entitled to
receive, in addition to the Severance Payments described in Section 1.5(b) below, if any, the
dollar value of any earned but unused (and unforfeited) vacation. Such dollar value shall be paid
to Employee within fifteen (15) days following the date of termination of employment.




          (b) Severance Payments in the Case of a Termination Without Cause.




               (i) Severance Paymentsb. If Employee’s employment is terminated by Employer without
Cause then, (A) subject to the Change in Control Agreement, (B) Employee’s satisfaction of the
Release Condition described in Section 1.5(b)(ii) below, and (C) Employee’s mitigation obligation
described in Section 1.5(b)(iii) below, Employee shall be entitled to continuation of Employee’s
Base Salary (as defined in Section 2.1) (such salary continuation, the “Severance
Payments”) for a period of 12 months (which period shall commence on the thirty-



 








 




sixth (36th) day following the Termination Date) in accordance with the Company’s
regular payroll practices and procedures.



               (ii) Release Condition. Notwithstanding anything to the contrary herein, no
Severance Payments shall be due or made to Employee hereunder, unless (i) Employee shall have
executed and delivered a general release in favor of Employer and its affiliates, (which release
shall be submitted to Employee for her review by the date of Employee’s termination of employment
(or shortly thereafter), be substantially in the form of the Separation Agreement and Release
attached hereto as Exhibit A) and (ii) the Release Effective Date shall have occurred on or
before the thirty-sixth day following the Termination Date. The “Release Effective Date”
shall be the date the general release becomes effective and irrevocable.



               (iii) Mitigation. Severance Payments shall be reduced by any compensation that
Employee earns from employment or self-employment during the twelve (12) months following such
termination of employment. Employee agrees to notify Employer of the amounts of such compensation
earned.



          (c) Medical Insurance. If Employee’s employment is terminated by Employer without
Cause, Employer will provide or pay the cost of continuing the medical coverage provided by
Employer to Employee and her dependents during her employment at the same or a comparable coverage
level, for a period beginning on the date of termination and ending on the earlier of (i) the date
that is twelve (12) months following such termination and (ii) the date that Employee is covered
under a medical benefits plan of a subsequent employer. Employee agrees to make a timely COBRA
election, to the extent requested by Employer, to facilitate Employer’s provision of continuation
coverage. Except as permitted by Section 409A (as defined below), the continued benefits provided
to Employee pursuant to this Section 1.5(c) during any calendar year will not affect the continued
benefits to be provided to Employee pursuant to this Section 1.5(c) in any other calendar year.




          (d) Equity Award Vesting. In the event of (i) the termination of Employee’s
employment with Employer due to Employee’s death, (ii) the termination of Employee’s employment
with Employer due to Disability, or (iii) the termination of Employee’s employment by Employer
without Cause, Employee shall on the date of such termination of employment be credited immediately
with an additional twelve (12) months’ vesting under the stock options, stock appreciation rights,
restricted stock and other equity or equity-based compensation of the Employer granted to Employee
in the course of his employment with Employer under this Agreement (collectively, “Equity
Awards”). The shares of Employer underlying any restricted stock units that become vested
pursuant to this Section 1.5(d) shall be payable on the vesting date. Any of Employee’s stock
options and stock appreciation rights that become vested pursuant to this Section 1.5(d) shall be
exercisable immediately upon vesting, and any such stock options and stock appreciation rights and
any of Employee’s stock options and stock appreciation rights that are otherwise vested and
exercisable as of Employee’s termination of employment shall remain exercisable for ninety (90)
days following Employee’s termination of employment (or such longer period as shall be provided by
the applicable award agreement),



 








 




provided that, if during such period Employee is under any trading restriction due to a lockup
agreement or closed trading window such period shall be tolled during the period of such trading
restriction, and provided, further, that in no event shall any stock option or stock appreciation
right continue to be exercisable after the original expiration date of such stock option or stock
appreciation right. If the terms of this Agreement are contrary to or conflict with the terms of
any document or agreement addressing or governing the Equity Awards, the terms of this Agreement
shall apply except that no provision in this Agreement shall operate to extend the term of any
stock option or stock appreciation right beyond its original expiration date. Notwithstanding
anything in this Section 1.5(d) to the contrary, if Employee’s employment with the Employer is
terminated without Cause and the Release Effective Date shall not occur, Employee shall forfeit any
Equity Awards which vested in accordance with this Section and Employee shall execute such
documents and take such actions as are necessary to effect this forfeiture. In addition, pending
the Release Effective Date, the Company shall adopt restrictions on the liquidity and
transferability of shares acquired pursuant to Equity Awards which vest under this Section 1.5(d).


ARTICLE II. Compensation


2.1 Base Salary. Employee shall be compensated at an annual base salary of Three Hundred
Twenty-Five Thousand Dollars ($325,000) (the “Base Salary”) while Employee is employed by
Employer under this Agreement, subject to such annual increases that Employer may, in its sole
discretion, determine to be appropriate. Such Base Salary shall be paid in accordance with
Employer’s standard policies and shall be subject to applicable tax withholding requirements.



2.2 Annual Bonus Eligibility. Employee shall be eligible to participate in Employer’s
annual bonus program under which Employee’s target bonus shall equal at least sixty percent (60%)
of Employee’s Base Salary. Payment of any bonus shall depend upon individual and company
performance, all as determined by Employer in its sole discretion. The terms of the annual bonus
program shall be developed by Employer and communicated to Employee as soon as practicable after
the beginning of each year.



2.3 Benefits; Vacation. Employee shall be eligible to receive all benefits as are
available to similarly situated employees of Employer generally, and any other benefits that
Employer may, in its sole discretion, elect to grant to Employee from time to time. In addition,
Employee shall be entitled to four (4) weeks paid vacation per year, which shall be pro-rated for
the first partial year of employment and shall accrue in accordance with Employer’s policies
applicable to similarly situated employees of Employer.



2.4 Reimbursement of Business Expenses. Employee may incur reasonable expenses in the
course of employment hereunder for which Employee shall be eligible for reimbursement or advances
in accordance with Employer’s standard policy therefor.



 








 




2.5 Equity Grants. Subject to approval by the Board, at their next quarterly meeting,
Employer shall grant to Employee under Employer’s 2006 Omnibus Incentive Compensation Plan a
one-time hiring grant of 8,000 restricted stock units, which shall vest, contingent on continued
employment, in accordance with the terms of the restricted stock unit grant. Subject to approval
by the Board, Employee shall be eligible for future equity grants and other long-term incentives.




ARTICLE III. Absence of Restrictions



3.1 Employee hereby represents and warrants to Employer that Employee has full power, authority and
legal right to enter into this Agreement and to carry out all obligations and duties hereunder and
that the execution, delivery and performance by Employee of this Agreement will not violate or
conflict with, or constitute a default under, any agreements or other understandings to which
Employee is a party or by which Employee may be bound or affected, including any order, judgment or
decree of any court or governmental agency. Employee further represents and warrants to Employer
that Employee is free to accept employment with Employer as contemplated herein and that Employee
has no prior or other obligations or commitments of any kind to any person, firm, partnership,
association, corporation, entity or business organization that would in any way hinder or interfere
with Employee’s acceptance of, or the full performance of, Employee’s duties hereunder.




ARTICLE IV. Miscellaneous



4.1 Withholding. Any payments made under this Agreement shall be subject to applicable
federal, state and local tax reporting and withholding requirements.



4.2 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without reference to the principles of conflicts
of laws. Any judicial action commenced relating in any way to this Agreement including the
enforcement, interpretation or performance of this Agreement, shall be commenced and maintained in
a court of competent jurisdiction located in Maricopa County, Arizona. In any action to enforce
this Agreement, the prevailing party shall be entitled to recover its litigation costs, including
its attorneys’ fees. The parties hereby waive and relinquish any right to a jury trial and agree
that any dispute shall be heard and resolved by a court and without a jury. The parties further
agree that the dispute resolution, including any discovery, shall be accelerated and expedited to
the extent possible. Each party’s agreements in this Section 4.2 are made in consideration of the
other party’s agreements in this Section 4.2, as well as in other portions of this Agreement.



4.3 No Waiver. The failure of Employer or Employee to insist in any one or more instances
upon performance of any terms, covenants and conditions of this Agreement shall not be construed as
a waiver or relinquishment of any rights granted hereunder or of the future performance of any such
terms, covenants or conditions.



 








 




4.4 Notices. All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered, delivered by facsimile
transmission or by courier or mailed, registered or certified mail, postage prepaid as follows:




	 	 	 
	If to Employer:
	 	First Solar, Inc.
	 
	 	350 West Washington Street
	 
	 	Suite 600
	 
	 	Tempe, Arizona 85281
	 
	 	Attention: Corporate Secretary
	 
	 	 
	If to Employee:
	 	To Employee’s then current
address on file with Employer





Or at such other address or addresses as any such party may have furnished to the other party in
writing in a manner provided in this Section 4.4.



4.5 Assignability and Binding Effect. This Agreement is for personal services and is
therefore not assignable by Employee. This Agreement may be assigned by Employer only to any
successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of Employer. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors, assigns, heirs, executors and legal
representatives. If there shall be a successor to Employer or Employer shall assign this
Agreement, then as used in this Agreement, (a) the term “Employer” shall mean Employer as
hereinbefore defined and any successor or any permitted assignee, as applicable, to which this
Agreement is assigned and (b) the term “Board” shall mean the Board as hereinbefore defined and the
board of directors or equivalent governing body of any successor or any permitted assignee, as
applicable, to which this Agreement is assigned.



4.6 Entire Agreement. This Agreement, the Change in Control Agreement, the Non-Competition
Agreement and the Confidentiality Agreement set forth the entire agreement between Employer and
Employee regarding the terms of Employee’s employment and supersede all prior agreements between
Employer and Employee covering the terms of Employee’s employment. This Agreement may not be
amended or modified except in a written instrument signed by Employer and Employee identifying this
Agreement and stating the intention to amend or modify it.



4.7 Severability. If it is determined by a court of competent jurisdiction that any of the
restrictions or language in this Agreement are for any reason invalid or unenforceable, the parties
desire and agree that the court revise any such restrictions or language, including reducing any
time or geographic area, so as to render them valid and enforceable to the fullest extent allowed
by law. If any restriction or language in this Agreement is for any reason invalid or
unenforceable and cannot by law be revised so as to render it valid and enforceable, then the



 








 






parties desire and agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by law. Employer and Employee
agree that the invalidity or unenforceability of any provision of this Agreement shall not affect
the remainder of this Agreement.



4.8 Construction. As used in this Agreement, words such as “herein,” “hereinafter,”
“hereby” and “hereunder,” and the words of like import refer to this Agreement, unless the context
requires otherwise. The words “include,” “includes” and “including” shall be deemed to be followed
by the phrase “without limitation”.



4.9 Survival. The rights and obligations of the parties under the provisions of this
Agreement, including Sections 1.5, this Article IV and Article V, shall survive and remain binding
and enforceable, notwithstanding the termination of Employee’s employment for any reason, to the
extent necessary to preserve the intended benefits of such provisions.




ARTICLE V. Section 409A



5.1 In General. It is intended that the provisions of this Agreement comply with Section
409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder as in effect
from time to time (collectively, “Section 409A”), and all provisions of this Agreement
shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes
or penalties under Section 409A.



5.2 No Alienation, Set-offs, Etc. Neither Employee nor any creditor or beneficiary of
Employee shall have the right to subject any deferred compensation (within the meaning of Section
409A) payable under this Agreement or under any other plan, policy, arrangement or agreement of or
with Employer or any of its affiliates (this Agreement and such other plans, policies, arrangements
and agreements, the “Employer Plans”) to any anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section
409A, any deferred compensation (within the meaning of Section 409A) payable to or for the benefit
of Employee under any Employer Plan may not be reduced by, or offset against, any amount owing by
Employee to Employer or any of its affiliates.



5.3 Possible Six-month Delay. If, at the time of Employee’s separation from service
(within the meaning of Section 409A), (a) Employee shall be a specified employee (within the
meaning of Section 409A and using the identification methodology selected by Employer from time to
time) and (b) Employer shall make a good faith determination that an amount payable under an
Employer Plan constitutes deferred compensation (within the meaning of Section 409A) the payment of
which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in
order to avoid taxes or penalties under Section 409A, then Employer (or an affiliate thereof, as
applicable) shall not pay such amount on the otherwise scheduled payment date but shall instead
accumulate such amount and pay it, without interest, on the first day of the seventh month
following such separation from service.



 








 







5.4 Treatment of Installments. For purposes of Section 409A, each of the installments of
continued Base Salary referred to in Section 1.5(b) shall be deemed to be a separate payment as
permitted under Treas. Reg. Sec. 1.409A-2(b)(2)(iii).



IN WITNESS WHEREOF, Employer has caused this Agreement to be executed by one of its duly authorized
officers and Employee has individually executed this Agreement, each intending to be legally bound,
as of the date first above written.




	 	 	 	 	 	 	 
	 	 	EMPLOYEE:	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Mary Elizabeth Gustafsson	 	 
	 	 	 	 	 
	 	 	Mary Elizabeth Gustafsson	 	 
	 
	 	 	 	 	 	 
	 	 	EMPLOYER:	 	 
	 	 	First Solar, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carol Campbell	 	 
	 

	 	 	 	 	 	 
	 	 	Name Printed: Carol Campbell	 	 
	 	 	Title: Vice President, HR	 	 





 








 




Exhibit A


SEPARATION AGREEMENT AND RELEASE


I. Release. For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned, with the intention of binding himself/herself, his/her heirs,
executors, administrators and assigns, does hereby release and forever discharge First Solar, Inc.,
a Delaware corporation (the “Company”), and its present and former officers, directors,
executives, agents, employees, affiliated companies, subsidiaries, successors, predecessors and
assigns (collectively, the “Released Parties”), from any and all claims, actions, causes of
action, demands, rights, damages, debts, accounts, suits, expenses, attorneys’ fees and liabilities
of whatever kind or nature in law, equity, or otherwise, whether now known or unknown
(collectively, the “Claims”), which the undersigned now has, owns or holds, or has at any
time heretofore had, owned or held against any Released Party, arising out of or in any way
connected with the undersigned’s employment relationship with the Company, its subsidiaries,
predecessors or affiliated entities, or the termination thereof, under any Federal, state or local
statute, rule, or regulation, or principle of common, tort or contract law, including but not
limited to, the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et seq., the Family
and Medical Leave Act of 1993, as amended (the “FMLA”), 29 U.S.C. §§ 2601 et seq., Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq., the Americans with Disabilities
Act of 1990, as amended, 42 U.S.C. §§ 12101 et seq., the Worker Adjustment and Retraining
Notification Act of 1988, as amended, 29 U.S.C. §§ 2101 et seq., the Employee Retirement Income
Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq., and any other equivalent or similar
Federal, state, or local statute; provided, however, that nothing herein shall release the Company
(a) of its obligations under that certain Employment Agreement and Change in Control Agreement to
which the undersigned is a party and pursuant to which this Separation Agreement and Release is
being executed and delivered, (b) from any claims by the undersigned arising out of any director
and officer indemnification or insurance obligations in favor of the undersigned (c) from any
director and officer indemnification obligations under the Company’s by-laws, and (d) from any
claim for benefits under the First Solar, Inc. 401(k) Plan. The undersigned understands that, as a
result of executing this Separation Agreement and Release, he/she will not have the right to assert
that the Company or any other Released Party unlawfully terminated his/her employment or violated
any of his/her rights in connection with his/her employment or otherwise.



The undersigned affirms that he/she has not filed or caused to be filed, and presently is not a
party to, any Claim, complaint or action against any Released Party in any forum or form and that
he/she knows of no facts which may lead to any Claim, complaint or action being filed against any
Released Party in any forum by the undersigned or by any agency, group, or class persons. The
undersigned further affirms that he/she has been paid and/or has received all leave (paid or
unpaid), compensation, wages, bonuses, commissions, and/or benefits to which he/she may be entitled
and that no other leave (paid or unpaid), compensation, wages, bonuses, commissions and/or benefits
are due to him/her from the Company and its subsidiaries, except as specifically provided in this
Separation Agreement and Release. The undersigned furthermore affirms that he/she has no known
workplace injuries or occupational diseases and has been provided and/or has not been denied any
leave requested under the FMLA. If any agency or



 








 






court assumes jurisdiction of any such Claim, complaint or action against any Released Party on
behalf of the undersigned, the undersigned will request such agency or court to withdraw the
matter.



The undersigned further declares and represents that he/she has carefully read and fully
understands the terms of this Separation Agreement and Release and that he/she has been advised and
had the opportunity to seek the advice and assistance of counsel with regard to this Separation
Agreement and Release, that he/she may take up to and including 21 days from receipt of this
Separation Agreement and Release, to consider whether to sign this Separation Agreement and
Release, that he/she may revoke this Separation Agreement and Release within seven calendar days
after signing it by delivering to the Company written notification of revocation, and that he/she
knowingly and voluntarily, of his/her own free will, without any duress, being fully informed and
after due deliberate action, accepts the terms of and signs the same as his/her own free act.



II. Protected Rights. The Company and the undersigned agree that nothing in this
Separation Agreement and Release is intended to or shall be construed to affect, limit or otherwise
interfere with any non-waivable right of the undersigned under any Federal, state or local law,
including the right to file a charge or participate in an investigation or proceeding conducted by
the Equal Employment Opportunity Commission (“EEOC”) or to exercise any other right that
cannot be waived under applicable law. The undersigned is releasing, however, his/her right to any
monetary recovery or relief should the EEOC or any other agency pursue Claims on his/her behalf.
Further, should the EEOC or any other agency obtain monetary relief on his/her behalf, the
undersigned assigns to the Company all rights to such relief.



III. Equitable Remedies. The undersigned acknowledges that a violation by the undersigned
of any of the covenants contained in this Agreement would cause irreparable damage to the Company
and its subsidiaries in an amount that would be material but not readily ascertainable, and that
any remedy at law (including the payment of damages) would be inadequate. Accordingly, the
undersigned agrees that, notwithstanding any provision of this Separation Agreement and Release to
the contrary, the Company shall be entitled (without the necessity of showing economic loss or
other actual damage) to injunctive relief (including temporary restraining orders, preliminary
injunctions and/or permanent injunctions) in any court of competent jurisdiction for any actual or
threatened breach of any of the covenants set forth in this Agreement in addition to any other
legal or equitable remedies it may have.



IV. Return of Property. The undersigned shall return to the Company on or before [10 DAYS
AFTER TERMINATION DATE], all property of the Company in the undersigned’s possession or subject to
the undersigned’s control, including without limitation any laptop computers, keys, credit cards,
cellular telephones and files. The undersigned shall not alter any of the Company’s records or
computer files in any way after [TERMINATION DATE].



V. Severability. If any term or provision of this Separation Agreement and Release is
invalid, illegal or incapable of being enforced by any applicable law or public policy, all other
conditions and provisions of this Separation Agreement and Release shall nonetheless remain in full
force and effect so long as the economic and legal substance of the transactions contemplated by
this Separation Agreement and Release is not affected in any manner materially adverse to any
party.




2









 







VI. GOVERNING LAW. THIS SEPARATION AGREEMENT AND RELEASE SHALL BE DEEMED TO BE MADE IN
THE STATE OF DELAWARE, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT IN ALL RESPECTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
ITS PRINCIPLES OF CONFLICTS OF LAW.



Effective on the eighth calendar day following the date set forth below.




	 	 	 	 	 
	FIRST SOLAR, INC.	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	     Name:	 	 
	 

	 	     Title:	 	 
	 
	 	 	 	 
	EMPLOYEE:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	     Mary Elizabeth Gustsafsson	 	 
	 

	 	     Date	 	 
	 

	 	     Signed:
                                        	 	 





3








 













NON-COMPETITION AND NON-SOLICITATION AGREEMENT




     In consideration of Employee’s (as defined below) entering into at-will employment with
Employer (as defined below) or one of its subsidiary companies, the compensation and benefits
provided to me including those set forth in a separate Employment Agreement, Change in Control
Agreement and Confidentiality and Intellectual Property Agreement (the “Confidentiality
Agreement”) and Employer’s agreement to provide Employee with access to Employer’s confidential
information, intellectual property and trade secrets, access to its customers and other promises
made below, Employee enters into the following non-competition and non-solicitation agreement:



     This Non-Competition and Non-Solicitation Agreement (“Agreement”) is effective by and
between Mary Elizabeth Gustafsson (“Employee”) and First Solar, Inc. (“Employer”)
as of October 6, 2008.



     WHEREAS, Employee desires to be employed by Employer and Employer has agreed to employ
Employee in the current position of Employee with Employer;



     WHEREAS, because of the nature of Employee’s duties, in the performance of such duties,
Employee will have access to and will necessarily utilize sensitive, secret and proprietary data
and information, the value of which derives from its secrecy from Employer’s competitors, which,
like Employer, sell products and services throughout the world;



     WHEREAS, Employee and Employer acknowledge and agree that Employee’s conduct in the manner
prohibited by this Agreement during, or for the period specified in this Agreement following the
termination of, Employee’s employment with Employer, would jeopardize Employer’s Confidential
Information (as defined in the Confidentiality Agreement) and the goodwill Employer has developed
and generated over a period of years, and would cause Employer to experience unfair competition and
immediate, irreparable harm; and



     WHEREAS, in consideration of Employer’s hiring Employee, Employee therefore has agreed to the
terms of this Agreement, the Employment Agreement and the Confidentiality Agreement, and
specifically to the restrictions contained herein.



     Therefore, Employee and Employer hereby agree as follows:



     THE FOLLOWING ARE IMPORTANT RESTRICTIONS ON EMPLOYEE IMPOSED BY EMPLOYER AS A CONDITION OF
EMPLOYMENT. ONCE EMPLOYEE SIGNS THIS AGREEMENT, IT IS BINDING ON EMPLOYEE. EMPLOYEE’S SIGNATURE
ON THIS AGREEMENT SIGNIFIES THAT EMPLOYEE (I) READ THESE RESTRICTIONS CAREFULLY BEFORE SIGNING THIS
AGREEMENT, (II) UNDERSTANDS THE AGREEMENT’S TERMS, AND (III) ASSENTS TO ABIDE BY THESE
RESTRICTIONS.



 









 





     1. Nature and Period of Restriction. At all times during Employee’s employment and
for a period of twelve months after the termination of employment (for any reason, including
discharge or resignation) with Employer (the “Restricted Period”), Employee agrees as
follows:



     1.1. Employee agrees not to engage or assist, in any way or in any capacity, anywhere in the
Territory (as defined below), either directly or indirectly, (a) in the business of the
development, sale, marketing, manufacture or installation that would be in direct competition with
of any type of product sold, developed, marketed, manufactured or installed by Employer during
Employee’s employment with Employer, including photovoltaic modules, or (b) in any other activity
in direct competition or that would be in direct competition with the business of Employer as that
business exists and is conducted (or with any business planned or seriously considered, of which
Employee has knowledge) during Employee’s employment with Employer. In addition and in particular,
Employee agrees not to sell, market, provide or distribute, or endeavor to sell, market, provide or
distribute, in any way, directly or indirectly, on behalf of Employee or any other person or
entity, any products or services competitive with those of Employer to any person or entity which
is or was an actual or prospective customer of Employer at any time during Employee’s employment by
Employer.



     1.2. “Territory” for purposes of this Agreement means North America, South America,
Australia, Europe and Asia.



     1.3. Employee agrees not to solicit, recruit, hire, employ or attempt to hire or employ, or
assist any other person or entity in the recruitment or hiring of, any person who is (or was) an
employee of Employer, and agrees not to otherwise urge, induce or seek to induce any person to
terminate his or her employment with Employer.



     1.4. The parties understand and agree that the restrictions set forth in the paragraphs in
this Section 1 also extend to Employee’s recommending or directing any such actual or prospective
customers to any other competitive concerns, or assisting in any way any competitive concerns in
soliciting or providing products or services to such customers, whether or not Employee personally
provides any products or services directly to such customers. For purposes of this Agreement, a
prospective customer is one that Employer solicited or with which Employer otherwise sought to
engage in a business transaction during the time that Employee is or was employed by Employer.



     1.5. Employee and Employer acknowledge and agree that Employer has expended substantial
amounts of time, money and effort to develop business strategies, customer relationships, employee
relationships, trade secrets and goodwill and to build an effective organization and that Employer
has a legitimate business interest and right in protecting those assets as well as any similar
assets that Employer may develop or obtain. Employee and Employer acknowledge that Employer is
entitled to protect and preserve the going concern value of Employer and its business and trade
secrets to the extent permitted by law. Employee acknowledges and agrees the restrictions imposed
upon Employee under this Agreement are reasonable and necessary for the protection of Employer’s
legitimate interests, including



2









 







Employer’s Confidential Information, intellectual property, trade secrets and goodwill.
Employee and Employer acknowledge that Employer is engaged in a highly competitive business, that
Employee is expected to serve a key role with Employer, that Employee will have access to
Employer’s Confidential Information, that Employer’s business and customers and prospective
customers are located around the world, and that Employee could compete with Employer from
virtually any location in the world. Employee acknowledges and agrees that the restrictions set
forth in this Agreement do not impose any substantial hardship on Employee and that Employee will
reasonably be able to earn a livelihood without violating any provision of this Agreement.
Employee acknowledges and agrees that, in addition to Employer’s agreement to hire her, part of the
consideration for the restrictions in this Section 1 consists of Employer’s agreement to make
severance payments as set forth in the separate Employment Agreement between Employer and Employee.



     1.6. Employee agrees to comply with each of the restrictive covenants contained in this
Agreement in accordance with its terms, and Employee shall not, and hereby agrees to waive and
release any right or claim to, challenge the reasonableness, validity or enforceability of any of
the restrictive covenants contained in this Agreement.



     2. Notice by Employee to Employer. Prior to engaging in any employment or business
during the Restricted Period, Employee agrees to provide prior written notice (by certified mail)
to Employer in accordance with Section 6, stating the description of the activities or position
sought to be undertaken by Employee, and to provide such further information as Employer may
reasonably request in connection therewith (including the location where the services would be
performed and the present or former customers or employees of Employer anticipated to receive such
products or services). Employer shall be free to object or not to object in its unfettered
discretion, and the parties agree that any actions taken or not taken by Employer with respect to
any other employees or former employees shall have no bearing whatsoever on Employer’s decision or
on any questions regarding the enforceability of any of these restraints with respect to Employee.



     3. Notice to Subsequent Employer. Prior to engaging in any employment with any other
person or entity during the Restricted Period, Employee shall provide such prospective employer
with written notice of the provisions of this Agreement, with a copy of such notice delivered
promptly to Employer in accordance with Section 6.



     4. Extension of Non-Competition Period in the Event of Breach. It is agreed that the
Restricted Period shall be extended by an amount of time equal to the amount of time during which
Employee is in breach of any of the restrictive covenants set forth above.



     5. Judicial Reformation to Render Agreement Enforceable. If it is determined by a
court of competent jurisdiction that any of the restrictions or language in this Agreement are for
any reason invalid or unenforceable, the parties desire and agree that the court revise any such
restrictions or language, including reducing any time or geographic area, so as to render them
valid and enforceable to the fullest extent allowed by law. If any restriction or language in this
Agreement is for any reason invalid or unenforceable and cannot by law be revised so as to render
it valid and enforceable, then the parties desire and agree that the court strike only the



3









 




invalid and unenforceable language and enforce the balance of this Agreement to the fullest
extent allowed by law. Employer and Employee agree that the invalidity or unenforceability of any
provision of this Agreement shall not affect the remainder of this Agreement.



     6. Notice. All documents, notices or other communications that are required or
permitted to be delivered or given under this Agreement shall be in writing and shall be deemed to
be duly delivered or given when received.




	 	 	 
	If to Employer:

	 	First Solar, Inc.
	 

	 	350 West Washington Street
	 

	 	Suite 600
	 

	 	Tempe, AZ 85281
	 

	 	Attention: Corporate Secretary
	 
	 	 
	If to Employee:

	 	To Employee’s then current address on file with Employer






     7. Enforcement. Except as expressly stated herein, the covenants contained in this
Agreement shall be construed as independent of any other provision or covenants of any other
agreement between Employer and Employee, and the existence of any claim or cause of action of
Employee against Employer, whether predicated on this Agreement or otherwise, or the actions of
Employer with respect to enforcement of similar restrictions as to other employees, shall not
constitute a defense to the enforcement by Employer of such covenants. Employee acknowledges and
agrees that Employer has invested great time, effort and expense in its business and reputation,
that the products and information of Employer are unique and valuable, and that the services
performed by Employee are unique and extraordinary, and Employee agrees that Employer will suffer
immediate, irreparable harm and shall be entitled, upon a breach or a threatened breach of this
Agreement, to emergency, preliminary, and permanent injunctive relief against such activities,
without having to post any bond or other security, and in addition to any other remedies available
to Employer at law or equity. Any specific right or remedy set forth in this Agreement, legal,
equitable or otherwise, shall not be exclusive but shall be cumulative upon all other rights and
remedies allowed or by law, including the recovery of money damages. The failure of Employer to
enforce any of the provisions of this Agreement, or the provisions of any agreement with any other
Employee, shall not constitute a waiver or limit any of Employer’s rights.



     8. At-Will Employment; Termination. This Agreement does not alter the at-will nature
of Employee’s employment by Employer, and Employee’s employment may be terminated by either party,
with or without notice and with or without cause, at any time. In addition to the foregoing
provisions of this Agreement, upon Employee’s termination, Employee shall cease all identification
of Employee with Employer and/or the business, products or services of Employer, and the use of
Employer’s name, trademarks, trade name or fictitious name. All provisions, obligations, and
restrictions in this Agreement shall survive termination of Employee’s employment with Employer.



     9. Choice of Law, Choice of Forum. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, without reference



4








 







to the principles of conflicts of laws. Any judicial action commenced relating in any way to
this Agreement including the enforcement, interpretation, or performance of this Agreement, shall
be commenced and maintained in a court of competent jurisdiction located in Maricopa County,
Arizona. In any action to enforce this Agreement, the prevailing party shall be entitled to
recover its litigation costs, including its attorneys’ fees. The parties hereby waive and
relinquish any right to a jury trial and agree that any dispute shall be heard and resolved by a
court and without a jury. The parties further agree that the dispute resolution, including any
discovery, shall be accelerated and expedited to the extent possible. Each party’s agreements in
this Section 9 are made in consideration of the other party’s agreements in this Section 9, as well
as in other portions of this Agreement.



     10. Entire Agreement, Modification and Assignment.



     10.1. This Agreement, the Employment Agreement the Confidentiality Agreement and the Change in
Control Agreement comprise the entire agreement relating to the subject matter hereof between the
parties and supersede, cancel, and annul any and all prior agreements or understandings between the
parties concerning the subject matter of the Agreement.



     10.2. This Agreement may not be modified orally but may only be modified in a writing executed
by both Employer and Employee.



     10.3. This Agreement shall inure to the benefit of Employer, its successors and assigns, and
may be assigned by Employer. Employee’s rights and obligations under this Agreement may not be
assigned by Employee.



     11. Construction. As used in this Agreement, words such as “herein,”
“hereinafter,”
“hereby” and “hereunder,” and the words of like import refer to this Agreement, unless the context
requires otherwise. The words “include,” “includes” and “including” shall be deemed to be followed
by the phrase “without limitation”.



     IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the day and year
first written above.



	 	 	 	 	 	 	 	 	 
	EMPLOYER:	 	 	 	EMPLOYEE:	 	 
	 
	 	 	 	 	 	 	 	 
	First Solar, Inc.	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Carol Campbell
	 	 	 	/s/ Mary Elizabeth Gustafsson	 	 
	 
	 	 	 	 	 	 	 	 
	Its: Vice President, HR	 	 	 	Printed Name: Mary Elizabeth Gustafsson	 	 
	Printed Name: Carol Campbell	 	 	 	 	 	 





5








 













First Solar, Inc.

Confidentiality and Intellectual Property Agreement




	 	 	 	 	 
	Employee:

	 	Mary Elizabeth Gustafsson
	 	 
	 
	 	 	 	 
	Place of Signing:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Date: October 6, 2008	 	 





In consideration of my ongoing at-will employment with First Solar, Inc. or one of its subsidiary
companies (collectively, the “Company”), for the compensation and benefits provided to me,
and for the Company’s agreement to provide me with access to experience, knowledge, and
Confidential Information (as defined below) in the course of such employment relating to the
methods, plans, and operations of the Company and its suppliers, clients, and customers I enter
into the following Confidentiality and Intellectual Property Agreement (the “Agreement”)
and agree as follows:




     1. Except for any items I have identified and described in a writing given to the Company and
acknowledged in writing by an officer of the Company on or before the date of this Agreement, which
items are specifically excluded from the operation of the applicable provisions hereof, I do not
own, nor have any interest in, any patents, patent applications, inventions, improvements, methods,
discoveries, designs, trade secrets, copyrights, and/or other patentable or proprietary rights.



     2. I will promptly and fully disclose to the Company all developments, inventions, ideas,
methods, discoveries, designs, and innovations (collectively referred to herein as “Developments”),
whether patentable or not, relating wholly or in part to my work for the Company or resulting
wholly or in part from my use of the Company’s materials or facilities, which I may make or
conceive, whether or not during working hours, whether or not using the Company’s materials,
whether or not on the Company facilities, alone or with others, at any time during my employment or
within ninety (90) days after termination thereof, and I agree that all such Developments shall be
the exclusive property of the Company, and that I shall have no proprietary, moral or shop rights
in connection therewith.



     3. I will assign, and do hereby assign, to the Company or the Company’s designee, my entire
right, title and interest in and to all such Developments including all trademarks, copyrights,
moral rights and mask work rights in or relating to such Developments, and any patent applications
filed and patents granted thereon including those in foreign countries; and I agree, both during my
employment by the Company and thereafter, to execute any patent or



 









 







other papers deemed necessary or
appropriate by the Company for filing with the United States or any other country covering such
Developments as well as any papers that the Company may
consider necessary or helpful in obtaining or maintaining such patents during the prosecution of
patent applications thereon or during the conduct of any interference, litigation, or any other
matter in connection therewith, and to transfer to the Company any such patents that may be issued
in my name. If, for some reason, I am unable to execute such patent or other papers, I hereby
irrevocably designate and appoint the Company and its designees and their duly authorized officers
and agents, as the case may be, as my agent and attorney in fact to act for and in my behalf and
stead to execute any documents and to do all other lawfully permitted acts in connection with the
foregoing. I agree to cooperate with and assist the Company as requested by the Company to provide
documentation reflecting the Company’s sole and complete ownership of the Developments. All
expenses incident to the filing of such applications, the prosecution thereof and the conduct of
any such interference, litigation, or other matter will be borne by the Company. This Section 3
shall survive the termination of this Agreement.



     4. Subject to Section 5 below, I will not, either during my employment with the Company or at
any time thereafter, use, disclose or authorize, or assist anyone else to disclose or use or make
known for anyone’s benefit, any information, knowledge or data of the Company or any supplier,
client, or customer of the Company in any way acquired by me during or as a result of my employment
with the Company, whether before or after the date of this Agreement (hereinafter the “Confidential
Information”), publicly or outside the Company, its subsidiaries, agents, employees, officers and
directors. Such Confidential Information shall include the following:




     (a) Information of a business nature including financial information and
information about sales, marketing, purchasing, prices, costs, suppliers and
customers;




     (b) Information pertaining to future developments including research and
development, new product ideas and developments, strategic plans, and future
marketing and merchandising plans and ideas;




     (c) Information and material that relate to the Company’s manufacturing
methods, machines, articles of manufacture, compositions, inventions, engineering
services, technological developments, “know-how”, purchasing, accounting,
merchandising and licensing;




     (d) Trade secrets of the Company, including information and material with
respect to the design, construction, capacity or method of operation of the
Company’s equipment or products and information regarding the Company’s customers
and sales or marketing efforts and strategies;




     (e) Software in various stages of development (source code, object code,
documentation, diagrams, flow charts), designs, drawings, specifications, models,
data and customer information; and



2








 






     (f) Any information of the type described above that the Company obtained from
another party and that the Company treats as proprietary or designates as
confidential, whether or not owned or developed by the Company.



     5. It is understood and agreed that the term “Confidential Information” shall not
include information that is generally available to the public, other than through any act or
omission on my part in breach of this Agreement.



     6. I acknowledge that: (a) such Confidential Information derives its value to the Company from
the fact that it is maintained as confidential and secret and is not readily available to the
general public or the Company’s competitors; (b) the Company undertakes great effort and sufficient
measures to maintain the confidentiality and secrecy of such information; and (c) such Confidential
Information is protected and covered by this Agreement regardless of whether or not such
Confidential Information is a “trade secret” under applicable law. I further acknowledge
and agree that the obligations and restrictions herein are reasonable and necessary to protect the
Company’s legitimate business interests, and that this Agreement does not impose an unreasonable or
undue burden on me and will not prevent me from earning a livelihood subsequent to the termination
of my employment with the Company. I agree to comply with each of the restrictive covenants
contained in this Agreement in accordance with its terms, and will not, and I hereby agree to waive
and release any right or claim to, challenge the reasonableness, validity or enforceability of any
of the restrictive covenants contained in this Agreement.



     7. I will deliver to the Company promptly upon request, and, in any event, on the date of
termination of my employment, all documents, copies thereof and other materials in my possession,
including any notes or memoranda prepared by me, pertaining to the business of the Company, whether
or not including any Confidential Information, and thereafter will promptly deliver to the Company
any documents and copies thereof pertaining to the business of the Company that come into my
possession.



     8. I represent that I have no agreements with or obligations to others with respect to any
innovations, developments, or information that could conflict with any of the foregoing.



     9. If this Agreement is subject to any applicable local laws, and to the extent of
inconsistency with such applicable laws, this Agreement will be construed, to the extent possible,
in a manner that is consistent with such applicable laws. The invalidity or unenforceability of
any provision of this Agreement, whether in whole or in part, shall not in any way affect the
validity and/or enforceability of any of the other provisions of this Agreement. Any invalid or
unenforceable provision or portion thereof shall be deemed severable to the extent of any such
invalidity or unenforceability. The restrictions contained in this Agreement are reasonable for
the purpose of preserving for the Company and its affiliates the proprietary rights, intangible
business value and Confidential Information of the Company and its affiliates. If it is determined
by a court of competent jurisdiction that any of the restrictions or language in this Agreement is
for any reason invalid or unenforceable, the parties desire and agree that the court revise any
such restrictions or language so as to render it valid and enforceable to the fullest extent
allowed by law. If any restriction or language in this Agreement is for any reason invalid or



3








 







unenforceable and cannot by law be revised so as to render it valid and enforceable, then the
parties desire and agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by law.



     10. I agree that any breach or threatened breach by me of any of the provisions in this
Agreement cannot be remedied solely by the recovery of damages. I expressly agree that upon a
threatened breach or violation of any of such provisions, the Company, in addition to all other
remedies, shall be entitled as a matter of right, and without posting a bond or other security, to
emergency, preliminary, and permanent injunctive relief in any court of competent jurisdiction.
Nothing herein, however, shall be construed as prohibiting the Company from pursuing, in concert
with an injunction or otherwise, any other remedies available at law or in equity for such breach
or threatened breach, including the recovery of damages.



     11. This Agreement is made in consideration of my employment with the Company.



     12. Upon termination of my employment with the Company, I shall, if requested by the Company,
reaffirm my recognition of the importance of maintaining the confidentiality of the Company’s
Confidential Information and reaffirm all of my obligations set forth herein. The provisions,
obligations, and restrictions in this Agreement shall survive the termination of my employment, and
will be binding on me whether or not the Company requests a re-affirmation.



     13. This Agreement, my Employment Agreement with the Company (the “Employment
Agreement”), the Non-Competition Agreement (as defined in the Employment Agreement) and the
Change in Control Agreement (as defined in the Employment Agreement) represent the full and
complete understanding between me and the Company with respect to the subject matter hereof and
supersede all prior representations and understandings, whether oral or written regarding such
subject matter. This Agreement may not be changed, modified, released, discharged, abandoned or
otherwise terminated, in whole or in part, except by an instrument in writing signed by both the
Company and me. My obligations under this Agreement shall be binding upon my heirs, executors,
administrators, or other legal representatives or assigns, and this Agreement shall inure to the
benefit of the Company, its successors, and assigns.



     14. This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware without reference to principles of conflict of laws. Any judicial action
commenced relating in any way to this Agreement including the enforcement, interpretation, or
performance of this Agreement, shall be commenced and maintained in a court of competent
jurisdiction located in Maricopa County, Arizona. In any action to enforce this Agreement, the
prevailing party shall be entitled to recover its litigation costs, including its attorneys’ fees.
The parties hereby waive and relinquish any right to a jury trial and agree that any dispute shall
be heard and resolved by a court and without a jury. The parties further agree that the dispute
resolution, including any discovery, shall be accelerated and expedited to the extent possible.
Each party’s agreements in this Section 14 are made in consideration of the other party’s
agreements in this Section 14, as well as in other portions of this Agreement.



     15. As used in this Agreement, words such as “herein,” “hereinafter,” “hereby” and
“hereunder,” and the words of like import refer to this Agreement, unless the context requires



4








 




otherwise. The words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”.



	 	 	 	 	 	 	 
	Signed:	 	/s/ Mary Elizabeth Gustafsson	 	 
	 	 	 	 	 
	 	 	Employee	 	 
	 	 	Print Name: Mary Elizabeth Gustafsson	 	 
	 
	 	 	 	 	 	 
	Agreed to by First Solar, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Carol Campbell	 	 
	 

	 	 	 	 	 	 
	 
	 	Its:	 	Vice President, HR	 	 





5








 













CHANGE IN CONTROL SEVERANCE AGREEMENT




          This CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), dated this
20th day of February 2009, between First Solar, Inc., a Delaware corporation (the
“Company”), and Mary Elizabeth Gustafsson (the “Executive”).




RECITALS:




          WHEREAS the Executive is a skilled and dedicated employee of the Company who has important
management responsibilities and talents that benefit the Company;




          WHEREAS the Board of Directors of the Company (the “Board”) considers it essential to
the best interests of the Company and its stockholders to assure that the Company and its
Subsidiaries (as defined below) will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change in Control (as defined below);
and




          WHEREAS the Board believes that it is imperative to diminish the distraction of the Executive
inherently present by the uncertainties and risks created by the circumstances surrounding a Change
in Control, and to ensure the Executive’s full attention to the Company and its Subsidiaries during
any such period of uncertainty.




          AGREEMENT:




          NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, and intending to be legally bound hereby, the parties hereto agree as follows:




          SECTION 1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:




          (a) “280G Gross-Up Payment” shall have the meaning set forth in Section 5(a).




          (b) “Accounting Firm” shall have the meaning set forth in Section 5(b).




          (c) “Accrued Rights” shall have the meaning set forth in Section 4(a)(iv).




          (d) “Affiliate(s)” means, with respect to any specified Person, any other Person
that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with, such specified Person.




          (e) “Annual Base Salary” shall mean the greater of the Executive’s annual rate of
base salary in effect (i) immediately prior to the Change in Control Date and (ii) immediately
prior to the Termination Date.




          (f) “Annual Bonus” shall mean the target annual cash bonus the Executive is eligible
to earn (assuming one hundred percent (100%) fulfillment of all elements of the formula
under which such bonus would have been calculated) for the year in which the Termination Date
occurs.




 









 




          (g) “Bonus Amount” means, as of the Termination Date, the greater of (i) the Annual
Bonus and (ii) the average of the annual cash bonuses payable to the Executive in respect of the
three (3) calendar years immediately preceding the calendar year that includes the Termination Date
or, if the Executive has not been employed for three (3) full calendar years preceding the calendar
year that includes the Termination Date, the average of the annual cash bonuses payable to the
Executive for the number of full calendar years prior to the Termination Date that she has been
employed.




          (h) “Cause” means the occurrence of any one of the following: (i) the Executive is
convicted of, or pleads guilty or nolo contendere to, (A) a misdemeanor involving moral turpitude
or misappropriation of the assets of the Company or a Subsidiary or (B) any felony (or the
equivalent of such a misdemeanor or felony in a jurisdiction outside of the United States); (ii)
the Executive commits one or more acts or omissions constituting gross negligence, fraud or other
gross misconduct that the Company reasonably and in good faith determines has a materially
detrimental effect on the Company; (iii) the Executive continually and willfully fails, for at
least fourteen (14) days following written notice from the Company, to perform substantially the
Executive’s employment duties (other than as a result of incapacity due to physical or mental
illness or after delivery by the Executive of a Notice of Termination for Good Reason); or (iv) the
Executive commits a gross violation of any of the Company’s material policies (including the
Company’s Code of Business Conduct and Ethics, as in effect from time to time) that the Company
reasonably and in good faith determines is materially detrimental to the best interests of the
Company. The termination of employment of the Executive for Cause shall not be effective unless
and until there has been delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the Board (excluding the
Executive) at a meeting of the Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that in the good faith opinion of the Board, the Executive is
guilty of the conduct described in clause (i), (ii), (iii) or (iv) above and specifying the
particulars thereof in detail.




          (i) “Change in Control” means the occurrence of any of the following:




               (i) individuals who, as of the Effective Date, were members of the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a member of the Board subsequent to the Effective Date whose
appointment or election, or nomination for election, by the Company’s stockholders was approved by
a vote of at least a majority of the Incumbent Directors shall be considered as though such
individual were an Incumbent Director, but excluding, for purposes of this proviso, any such
individual whose assumption of office after the Effective Date occurs as a result of an actual or
threatened proxy contest with respect to election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of any “person” (as
such term is used in Section 13(d) of the Exchange Act) (each, a “Person”) other than
the Board or any Specified Shareholder;



 








 




               (ii) the consummation of (A) a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving (1) the Company or (2) any of its Subsidiaries, but in the
case of this clause (2) only if Company Voting Securities (as defined below) are issued or issuable
in connection with such transaction or (B) a sale or other disposition of all or substantially all
the assets of the Company (each of the events referred to in clause (A) or (B) being hereinafter
referred to as a “Reorganization”), unless, immediately following such Reorganization, (x)
all or substantially all the individuals and entities who were the “beneficial owners” (as such
term is defined in Rule 13d-3 under the Exchange Act) of shares of the Company’s common stock or
other securities eligible to vote for the election of the Board outstanding immediately prior to
the consummation of such Reorganization (such securities, the “Company Voting Securities”)
beneficially own, directly or indirectly, more than 50% of the combined voting power of the then
outstanding voting securities of the corporation or other entity resulting from such Reorganization
(including a corporation or other entity that, as a result of such transaction, owns the Company or
all or substantially all the Company’s assets either directly or through one or more subsidiaries)
(the “Continuing Entity”) in substantially the same proportions as their ownership,
immediately prior to the consummation of such Reorganization, of the outstanding Company Voting
Securities (excluding any outstanding voting securities of the Continuing Entity that such
beneficial owners hold immediately following the consummation of such Reorganization as a result of
their ownership prior to such consummation of voting securities of any corporation or other entity
involved in or forming part of such Reorganization other than the Company or a Subsidiary), (y) no
Person (excluding (i) any employee benefit plan (or related trust) sponsored or maintained by the
Continuing Entity or any corporation or other entity controlled by the Continuing Entity and (ii)
any Specified Shareholder) beneficially owns, directly or indirectly, twenty percent (20%) or more
of the combined voting power of the then outstanding voting securities of the Continuing Entity and
(z) at least a majority of the members of the board of directors or other governing body of the
Continuing Entity were Incumbent Directors at the time of the execution of the definitive agreement
providing for such Reorganization or, in the absence of such an agreement, at the time at which
approval of the Board was obtained for such Reorganization;



               (iii) the stockholders of the Company approve a plan of complete liquidation or dissolution
of the Company, unless such liquidation or dissolution is part of a transaction or series of
transactions described in Section 1(i)(ii) that does not otherwise constitute a Change in Control;
or



               (iv) any Person, corporation or other entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act) other than any Specified Shareholder becomes the beneficial owner,
directly or indirectly, of securities of the Company representing a percentage of the combined
voting power of the Company Voting Securities that is equal to or greater than the greater of (A)
twenty percent (20%) and (B) the percentage of the combined voting power of the Company Voting
Securities beneficially owned directly or indirectly by all the Specified Shareholders at such
time; provided, however, that for purposes of this Section


 








 




1(i)(iv) only (and not for purposes of Sections 1(i)(i) through (iii)), the following
acquisitions shall not constitute a Change in Control: (1) any acquisition by the Company or any
Subsidiary, (2) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Subsidiary, (3) any acquisition by an underwriter temporarily
holding such Company Voting Securities pursuant to an offering of such securities and (4) any
acquisition pursuant to a Reorganization that does not constitute a Change in Control for purposes
of Section 1(i)(ii).



          (j) “Change in Control Date” means the date on which a Change in Control occurs.




          (k) “COBRA” shall have the meaning set forth in Section 4(a)(iii).




          (l) “Code” means the Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto, and the regulations promulgated thereunder as in effect from time to
time.




          (m) “Company Voting Securities” shall have the meaning set forth in Section 1(i)(ii).




          (n) “Continuing Entity” shall have the meaning set forth in Section 1(i)(ii).




          (o) “Disability” shall have the meaning set forth in Section 4(b)(ii).




          (p) “Effective Date” shall have the meaning set forth in Section 2.




          (q) “Executive Tax Year” shall have the meaning set forth in Section 4(a)(iii).




          (r) “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor statute thereto, and the regulations promulgated thereunder as in effect
from time to time.




          (s) “Excise Tax” means the excise tax imposed by Section 4999 of the Code, together
with any interest or penalties imposed with respect to such tax.




          (t) “Good Reason” means, without the Executive’s express written consent, the
occurrence of any one or more of the following:




               (i) any material reduction in the authority, duties or responsibilities held by the Executive
immediately prior to the Change in Control Date;



               (ii) any material reduction in the annual base salary or annual incentive opportunity of the
Executive as in effect immediately prior to the Change in Control Date;



               (iii) any change of the Executive’s principal place of employment to a location more than
fifty (50) miles from the Executive’s principal place of employment immediately prior to the Change
in Control Date;


 








 




               (iv) any failure of the Company to pay the Executive any compensation when due;



               (v) delivery by the Company or any Subsidiary of a written notice to the Executive of the
intent to terminate the Executive’s employment for any reason, other than Cause, death or
Disability, in each case in accordance with this Agreement, regardless of whether such termination
is intended to become effective during or after the Protection Period; or



               (vi) any failure by the Company to comply with and satisfy the requirements of Section 10(c).



          The Executive’s right to terminate employment for Good Reason shall not be affected by the
Executive’s incapacity due to physical or mental illness. A termination of employment by the
Executive for Good Reason for purposes of this Agreement shall be effectuated by giving the Company
written notice (“Notice of Termination for Good Reason”) of the termination setting forth
in reasonable detail the specific conduct of the Company that constitutes Good Reason and the
specific provisions of this Agreement on which the Executive relied, provided that such notice must
be delivered to the Company no later than ninety (90) days after the occurrence of the event or
events constituting Good Reason and the Company must be provided with at least thirty (30) days
following the delivery of such Notice of Termination for Good Reason to cure such event or events.
If such event or events are cured during such period, then the Executive will not be permitted to
terminate employment for Good Reason as the result of such event or events. If the Company does
not cure such event or events in such period, the termination of employment by the Executive for
Good Reason shall be effective on the thirtieth (30th) day following the date when the
Notice of Termination for Good Reason is given, unless the Company elects to treat such termination
as effective as of an earlier date; provided, however, that so long as an event that constitutes
Good Reason occurs during the Protection Period and the Executive delivers the Notice of
Termination for Good Reason within ninety (90) days following the occurrence of such event, the
Company is provided with at least thirty (30) days following the delivery of such Notice of
Termination for Good Reason to cure such event, and the Executive terminates her employment as of
the thirtieth (30th) day following the date when the Notice of Termination for Good
Reason is given (or as of an earlier date chosen by the Company), then for purposes of the
payments, benefits and other entitlements set forth herein, the termination of the Executive’s
employment pursuant thereto shall be deemed to occur during the Protection Period.




          (u) “Incumbent Directors” shall have the meaning set forth in Section 1(i)(i).




          (v) “Notice of Termination for Good Reason” shall have the meaning set forth in
Section 1(t).




          (w) “Payment” means any payment, benefit or distribution (or combination thereof) by
the Company, any of its Affiliates or any trust established by the Company or its Affiliates, to or
for the benefit of the Executive, whether paid, payable, distributed, distributable or provided
pursuant to this Agreement or otherwise, including any payment, benefit or other right that
constitutes a “parachute payment” within the meaning of Section 280G of the Code.


 








 




          (x) “Person” shall have the meaning set forth in Section 1(i)(i).


          (y) “Protection Period” means the period commencing on the Change in Control Date and
ending on the second anniversary thereof.


          (z) “Qualifying Termination” means any termination of the Executive’s employment (i)
by the Company, other than for Cause, death or Disability, that is effective (or with respect to
which the Executive is given written notice) during the Protection Period, (ii) by the Executive
for Good Reason during the Protection Period or (iii) by the Company that is effective prior to the
Change in Control Date, other than for Cause, death or Disability, at the request or direction of a
third party who took action that caused, or is involved in or a party to, a Change in Control.


          (aa) “Release” shall have the meaning set forth in Section 4(a)(vi).


          (bb) “Release Effective Date” shall mean the date the Release becomes effective and
irrevocable.


          (cc) “Reorganization” shall have the meaning set forth in Section 1(i)(ii).


          (dd) “Safe Harbor Amount” shall have the meaning set forth in Section 5(a).


          (ee) “Specified Shareholder” shall mean any of (i) the Estate of John T. Walton and
its beneficiaries, (ii) JCL Holdings, LLC and its beneficiaries, (iii) Michael J. Ahearn and any of
his immediate family, (iv) any Person directly or indirectly controlled by any of the foregoing and
(v) any trust for the direct or indirect benefit of any of the foregoing.


          (ff) “Subsidiary” means any entity in which the Company, directly or indirectly,
possesses 50% or more of the total combined voting power of all classes of stock.


          (gg) “Successor” shall have the meaning set forth in Section 10(c).


          (hh) “Termination Date” means the date on which the termination of the Executive’s
employment, in accordance with the terms of this Agreement, is effective, provided that in the
event of a Qualifying Termination described in clause (iii) of the definition thereof, the
Termination Date shall be deemed to be the Change in Control Date.


          (ii) “Underpayment” shall have the meaning set forth in Section 5(b).


          SECTION 2. Effectiveness and Term. This Agreement shall become effective as of the
date hereof (the “Effective Date”) and shall remain in effect until the third
(3rd) anniversary of the Effective Date, except that, beginning on the second
anniversary of the Effective Date and on each anniversary thereafter, the term of this Agreement
shall be automatically extended for an additional one-year period, unless the Company or the
Executive provides the other party with sixty (60) days’ prior written notice before the applicable
anniversary that the term of this Agreement shall not be so extended. Notwithstanding the


 








 




foregoing, in the event of a Change in Control during the term of this Agreement (whether the
original term or the term as extended), this Agreement shall not thereafter terminate, and the term
hereof shall be extended, until the Company and its Subsidiaries have performed all their
obligations hereunder with no future performance being possible; provided, however, that this
Agreement shall only be effective with respect to the first Change in Control that occurs during
the term of this Agreement.




          SECTION 3. Impact of a Change in Control on Equity Compensation Awards. Effective as
of the Change in Control Date, notwithstanding any provision to the contrary, other than any such
provision that expressly provides that this Section 3 of this Agreement does not apply (which
provision shall be given full force and effect), in any of the Company’s equity-based,
equity-related or other long-term incentive compensation plans, practices, policies and programs
(including the Company’s 2003 Unit Option Plan and the Company’s 2006 Omnibus Incentive
Compensation Plan) or any award agreements thereunder, (a) all outstanding stock options, stock
appreciation rights and similar rights and awards then held by the Executive that are unexercisable
or otherwise unvested shall automatically become fully vested and immediately exercisable, as the
case may be, (b) all outstanding equity-based, equity-related and other long-term incentive awards
then held by the Executive that are subject to performance-based vesting criteria shall
automatically become fully vested and earned at a deemed performance level equal to the maximum
performance level with respect to such awards and (c) all other outstanding equity-based,
equity-related and long-term incentive awards, to the extent not covered by the foregoing clause
(a) or (b), then held by the Executive that are unvested or subject to restrictions or forfeiture
shall automatically become fully vested and all restrictions and forfeiture provisions related
thereto shall lapse.




          SECTION 4. Termination of Employment.




          (a) Qualifying Termination. In the event of a Qualifying Termination, the Executive
shall be entitled, subject to Section 4(a)(vi), to the following payments and benefits:




               (i) Severance Pay. The Company shall pay the Executive, in a lump-sum cash payment
on the tenth (10th) business day after the Release Effective Date.described in Section
4(a)(vi) becomes effective and irrevocable (the “Release Effective Date”), an amount equal
to two (2) times the sum of (A) the Executive’s Annual Base Salary (which, as defined, is
determined without regard to any reduction giving rise to Good Reason) and (B) the Bonus Amount;
provided, however, that such amount shall be paid in lieu of, and the Executive hereby waives the
right to receive, any other cash severance payment the Executive is otherwise eligible to receive
upon termination of employment under any severance plan, practice, policy or program of the Company
or any Subsidiary or under any agreement between the Company and the Executive and, in the event of
a Qualifying Termination described in clause (iii) of the definition thereof, the severance payment
payable pursuant to this Section 4(a)(i) shall be reduced by the amount of any other such severance
payments previously paid to the Executive.



               (ii) Prorated Annual Bonus. The Company shall pay the Executive, in a lump-sum cash
payment on the tenth (10th) business day after Release Effective Date, an amount



 








 




equal to the product of (A) the Executive’s Annual Bonus and (B) a fraction, the numerator of
which is the number of days in the Company’s fiscal year containing the Termination Date that the
Executive was employed by the Company or any Affiliate, and the denominator of which is three
hundred sixty-five (365).



               (iii) Continued Welfare Benefits. The Company shall, at its option, either (A)
continue to provide the medical, life insurance, accident insurance and disability benefits to the
Executive and the Executive’s spouse and dependents at least equal to the benefits provided by the
Company and its Subsidiaries generally to other active peer executives of the Company and its
Subsidiaries, or (B) pay Executive the cost of obtaining equivalent coverage, in the case of each
of clauses (A) and (B), for a period of time commencing on the Termination Date and ending on the
date that is eighteen (18) months after the Termination Date; provided, however, that if the
Executive becomes reemployed with another employer and is eligible to receive medical or other
welfare benefits under another employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan during such applicable
period of eligibility. Any provision of benefits pursuant to this Section 4(a)(iii) in one (1) tax
year of the Executive (the “Executive Tax Year”) shall not affect the amount of such benefits to be
provided in any other Executive Tax Year. The right to such benefits shall not be subject to
liquidation or exchange for any other benefit. Executive agrees to make (and to cause his
dependents to make) a timely election under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended (“COBRA”) to the extent requested by Employer, to facilitate Employer’s
provision of continuation coverage.



               (iv) Accrued Rights. The Executive shall be entitled to (A) payments of any unpaid
salary, bonuses or other amount earned or accrued through the Termination Date and reimbursement of
any unreimbursed business expenses incurred through the Termination Date (B) any payments
explicitly set forth in any other benefit plans, practices, policies and programs in which the
Executive participates and (C) any payments the Company is or becomes obligated to make pursuant to
Sections 5, 7 and 12 (the rights to such payments, the “Accrued Rights”). The Accrued
Rights payable pursuant to Section 4(a)(iv)(A) and Section 4(a)(iv)(B) shall be payable on their
respective otherwise scheduled payment dates, provided that any amounts payable in respect
of accrued but unused vacation shall be paid in a lump sum within 15 days following the Termination
Date. The Accrued Rights payable pursuant to Section 4(a)(iv)(C) shall be payable at the times set
forth in the applicable Section hereof.



               (v) Outplacement. The Company shall reimburse the Executive for individual
outplacement services to be provided by a firm of the Executive’s choice or, at the Executive’s
election, provide the Executive with the use of office space, office supplies and secretarial
assistance satisfactory to the Executive. The aggregate expenditures of the Company pursuant to
this paragraph shall not exceed Twenty Thousand Dollars ($20,000). Notwithstanding anything to the
contrary in this Agreement, the outplacement benefits under this Section 4(a)(v) shall be provided
to the Executive for no longer than the one-year period following the Termination Date, and the
amount of any outplacement benefits or office space, office supplies and secretarial assistance
provided to the Executive in any Executive Tax Year
shall not affect the amount of any such outplacement benefits or office space, office supplies
and secretarial assistance provided to the Executive in any other Executive Tax Year.



 








 





               (vi) Release of Claims. Notwithstanding any provision of this Agreement to the
contrary, unless on or prior to the tenth (10th) business day prior to March 15 of the
year following the year in which the Termination Date occurs, the Executive has executed and
delivered a Separation Agreement and Release (the “Release”) substantially in the form of
Exhibit A to the employment agreement between the Executive and the Company and the Release
Effective Date shall have occurred, (A) no payments shall be paid or made available to the
Executive under Section 4(a)(i) or 4(a)(ii), (B) the Company shall be relieved of all obligations
to provide or make available any further benefits to the Executive pursuant to Section 4(a)(iii)
and 4(a)(v) and (C) the Executive shall be required to repay the Company, in cash, within five
business days after written demand is made therefor by the Company, an amount equal to the value of
any benefits received by the Executive pursuant to Section 4(a)(iii) and 4(a)(v) prior to such
date.



          (b) Termination on Account of Death or Disability; Non-Qualifying Termination.




               (i) In the event of any termination of Executive’s employment other than a Qualifying
Termination (including on account of her death or on or following a determination that Executive
has a Disability), the Executive shall not be entitled to any additional payments or benefits from
the Company under this Agreement, other than payments or benefits with respect to the Accrued
Rights.



               (ii) For purposes of this Agreement, the Executive shall be deemed to have a
“Disability” in the event of the Executive’s absence for a period of 180 consecutive
business days as a result of incapacity due to a physical or mental condition, illness or injury
that is determined to be total and permanent by a physician mutually acceptable to the Company and
the Executive or the Executive’s legal representative (such acceptance not to be unreasonably
withheld) after such physician has completed an examination of the Executive. The Executive agrees
to make herself available for such examination upon the reasonable request of the Company, and the
Company shall be responsible for the cost of such examination.



          SECTION 5. Certain Additional Payments by the Company.




          (a) Notwithstanding anything in this Agreement to the contrary and except as set forth below,
in the event it shall be determined that any Payment that is paid or payable during the term of
this Agreement would be subject to the Excise Tax, the Executive shall be entitled to receive an
additional payment (a “280G Gross-Up Payment”) in an amount such that, after payment by the
Executive of all taxes (and any interest or penalties imposed with respect to such taxes),
including any income and employment taxes and Excise Taxes imposed upon the 280G Gross-Up Payment,
the Executive retains an amount of the 280G Gross-Up Payment equal to the Excise Tax imposed upon
such Payments. The Company’s obligation to make 280G Gross-Up Payments under this Section 5 shall
not be conditioned upon the Executive’s termination of employment and shall survive and apply after
the Executive’s termination of employment. Notwithstanding the foregoing provisions of this
Section 5(a), if it shall be determined that the




 








 







Executive is entitled to a 280G Gross-Up Payment, but that the Payments do not exceed one
hundred ten percent (110%) of the greatest amount that could be paid to the Executive without
giving rise to any Excise Tax (the “Safe Harbor Amount”), then no 280G Gross-Up Payment
shall be made to the Executive and the amounts payable under this Agreement shall be reduced so
that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. If such a reduction is
necessary, the Payments shall be reduced in the following order: (i) the Payments payable under
Section 4(a)(i) (severance), (ii) the Payments payable under Section 4(a)(ii) (pro-rated annual
bonus), (iii) any other cash Payments, (iv) the Payments payable under Section 4(a)(iii) and (v)
the accelerated vesting under Section 3.




          (b) Subject to the provisions of Section 5(c), all determinations required to be made under
this Section 5, including whether and when a 280G Gross-Up Payment is required, the amount of such
280G Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall
be made in accordance with the terms of this Section 5 by a nationally recognized certified public
accounting firm that shall be designated by the Executive (the “Accounting Firm”). The
Accounting Firm shall provide detailed supporting calculations both to the Company and the
Executive within fifteen (15) business days of the receipt of notice from the Executive that there
has been a Payment or such earlier time as is requested by the Company. For purposes of
determining the amount of any 280G Gross-Up Payment, the Executive shall be deemed to pay Federal
income tax at the highest marginal rate applicable to individuals in the calendar year in which any
such 280G Gross-Up Payment is to be made and deemed to pay state and local income taxes at the
highest marginal rates applicable to individuals in the state or locality of the Executive’s
residence or place of employment in the calendar year in which any such 280G Gross-Up Payment is to
be made, net of the maximum reduction in Federal income taxes that can be obtained from deduction
of state and local taxes, taking into account limitations applicable to individuals subject to
Federal income tax at the highest marginal rate. All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any 280G Gross-Up Payment, as determined pursuant to this
Section 5, shall be paid by the Company to the Executive within five (5) business days of the
receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise
Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any
determination by the Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code, at the time of the
initial determination by the Accounting Firm hereunder, it is possible that 280G Gross-Up Payments
that will not have been made by the Company should have been made (an “Underpayment”),
consistent with the calculations required to be made hereunder. In the event the Company exhausts
its remedies pursuant to Section 5(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be paid by the Company to the Executive within five (5)
business days of the receipt of the Accounting Firm’s determination.




          (c) The Executive shall notify the Company in writing of any written claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of a 280G Gross-Up
Payment. Such notification shall be given as soon as practicable, but no later than ten (10)
business days after the Executive is informed in writing of such claim. Failure to



 








 







give timely notice shall not prejudice the Executive’s right to 280G Gross-Up Payments and
rights of indemnity under this Section 5. The Executive shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. The Executive shall not pay
such claim prior to the expiration of the thirty (30) day period following the date on which the
Executive gives such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that the Company desires to contest such claim, the
Executive shall: (i) give the Company any information reasonably requested by the Company
relating to such claim, (ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including accepting legal
representation with respect to such claim by an attorney reasonably selected by the Company, (iii)
cooperate with the Company in good faith in order effectively to contest such claim and (iv) permit
the Company to participate in any proceedings relating to such claim; provided, however, that the
Company shall bear and pay directly all costs and expenses (including additional income taxes,
interest and penalties) incurred in connection with such contest, and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest or
penalties) imposed as a result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 5(c), the Company shall control all
proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo
any and all administrative appeals, proceedings, hearings and conferences with the applicable
taxing authority in respect of such claim and may, at its sole discretion, either pay the tax claim
on behalf of the Executive and direct the Executive to sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one (1) or more
appellate courts, as the Company shall determine; provided, however, that (A) if the Company pays
the tax claim on behalf of the Executive and directs the Executive to sue for a refund, the Company
shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties) imposed with respect to such payment and (B) if such
contest results in any extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which such contested amount is claimed to be due,
such extension must be limited solely to such contested amount. Furthermore, the Company’s control
of the contest shall be limited to issues with respect to which the 280G Gross-Up Payment would be
payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue Service or any other taxing authority.




          (d) If, after the payment by the Company of any tax claim pursuant to Section 5(c), the
Executive becomes entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company’s complying with the requirements of Section 5(c)) promptly pay to the
Company the amount of such refund received (together with any interest paid or credited thereon
after taxes applicable thereto). If, after the payment by the Company of any tax claim pursuant to
Section 5(c), a determination is made that the Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify the Executive in writing of its intent to
contest such denial of refund prior to the expiration of the thirty (30)
day period after such determination, then the amount the Company paid in respect of such claim
shall offset, to the extent thereof, the amount of 280G Gross-Up Payment required to be paid.



 








 








          (e) Notwithstanding anything to the contrary in this Agreement, (i) in no event shall any tax
280G Gross-up Payments be made by the Company to the Executive under this Section 5 after the end
of the Executive Tax Year following the Executive Tax Year in which the Executive remits the taxes
for which such tax 280G Gross-up Payment is required to be made under this Section 5, and (ii) no
other payments will be made by the Company to the Executive under this Section 5 with respect to
any audit or litigation relating to any 280G Gross-Up Payment or Excise Tax or other taxes after
the Executive Tax Year following the Executive Tax Year in which the taxes that are the subject of
the audit or litigation referred to in this Section 5 are remitted to the taxing authority, or
where, as a result of such audit or litigation, no taxes are remitted, the end of the Executive Tax
Year following the Executive Tax Year in which the audit is completed or there is a final and
nonappealable settlement or other resolution of the litigation.




          SECTION 6. Section 409A.




          (a) It is intended that the provisions of this Agreement comply with Section 409A of the Code,
and the regulations thereunder as in effect from time to time (collectively, “Section
409A”), and all provisions of this Agreement shall be construed and interpreted to either (i)
exempt any compensation from the application from Section 409A, or (ii) comply with the
requirements for avoiding taxes or penalties under Section 409A.




          (b) Neither the Executive nor any creditor or beneficiary of the Executive shall have the
right to subject any deferred compensation (within the meaning of Section 409A) payable under this
Agreement or under any other plan, policy, arrangement or agreement of or with the Company or any
of its Affiliates (this Agreement and such other plans, policies, arrangements and agreements, the
“Company Plans”) to any anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment. Except as permitted under Section 409A, any deferred
compensation (within the meaning of Section 409A) payable to or for the benefit of the Executive
under any Company Plan may not be reduced by, or offset against, any amount owing by the Executive
to the Company or any of its Affiliates.




          (c) If, at the time of the Executive’s separation from service (within the meaning of Section
409A), (i) the Executive shall be a specified employee (within the meaning of Section 409A and
using the identification methodology selected by the Company from time to time) and (ii) the
Company shall make a good faith determination that an amount payable under a Company Plan
constitutes deferred compensation (within the meaning of Section 409A) the payment of which is
required to be delayed pursuant to the six-month delay rule set forth in Section 409A of the Code
to avoid taxes or penalties under Section 409A, then the Company (or an Affiliate thereof, as
applicable) shall not pay such amount on the otherwise scheduled payment date but shall instead
accumulate such amount and pay it, without interest, on the first day of the seventh month
following such separation from service.



 








 




          SECTION 7. No Mitigation or Offset; Enforcement of this Agreement.


          (a) The Company’s obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action that the Company may have against the Executive
or others. In no event shall the Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive under any of the provisions of
this Agreement and, except as otherwise expressly provided for in this Agreement, such amounts
shall not be reduced whether or not the Executive obtains other employment.




          (b) The Company shall reimburse, upon the Executive’s demand, any and all reasonable legal
fees and expenses that the Executive may incur in good faith prior to the second anniversary of the
expiration of the term of this Agreement as a result of any contest, dispute or proceeding
(regardless of whether formal legal proceedings are ever commenced and regardless of the outcome
thereof and including all stages of any contest, dispute or proceeding) by the Company, the
Executive or any other Person with respect to the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof (including as a
result of any contest by the Executive regarding the amount of any payment owed pursuant to this
Agreement), and shall indemnify and hold the Executive harmless, on an after-tax basis, for any tax
(including Excise Tax) imposed on the Executive as a result of payment by the Company of such legal
fees and expenses. Notwithstanding anything to the contrary in this Agreement, (i) any
reimbursement for any fees and expenses under this Section 7 shall be made promptly and no later
than the end of the Executive Tax Year following the Executive Tax Year in which the fees or
expenses are incurred, (ii) the amount of fees and expenses eligible for reimbursement under this
Section 7 during any Executive Tax Year shall not affect the fees and expenses eligible for
reimbursement in another Executive Tax Year, (iii) no right to reimbursement under this Section 7
shall be subject to liquidation or exchange for any other payment or benefit, and (iv) no tax gross
up payments shall be made by the Company under this Section 7 after the end of the Executive Tax
Year following the Executive Tax Year in which the related taxes are remitted.




          SECTION 8. Non-Exclusivity of Rights. Except as specifically provided in Section
4(a)(i), nothing in this Agreement shall prevent or limit the Executive’s continuing or future
participation in any plan, practice, policy or program provided by the Company or a Subsidiary for
which the Executive may qualify, nor shall anything in this Agreement limit or otherwise affect any
rights the Executive may have under any contract or agreement with the Company or a Subsidiary.
Vested benefits and other amounts that the Executive is otherwise entitled to receive under any
incentive compensation (including any equity award agreement), deferred compensation, retirement,
pension or other plan, practice, policy or program of, or any contract or agreement with, the
Company or a Subsidiary shall be payable in accordance with the terms of each such plan, practice,
policy, program, contract or agreement, as the case may be, except as explicitly modified by this
Agreement.




          SECTION 9. Withholding. The Company may deduct and withhold from any amounts payable
under this Agreement such Federal, state, local, foreign or other taxes as are required to be
withheld pursuant to any applicable law or regulation.



 








 








          SECTION 10. Assignment.




          (a) This Agreement is personal to the Executive and, without the prior written consent of the
Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and
distribution, and any assignment in violation of this Agreement shall be void.




          (b) Notwithstanding the foregoing Section 10(a), this Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and be enforceable by, the Executive’s personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts would still be payable to her hereunder if
she had continued to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive’s devisee, legatee or other designee
or, should there be no such designee, to the Executive’s estate.




          (c) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or assets of the Company (a
“Successor”) to assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would have been required to perform it if no such succession had taken
place. If there shall be a Successor, (i) the term “Company” shall mean the Company as
hereinbefore defined and any Successor and any permitted assignee to which this Agreement is
assigned and (ii) the term “Board” shall mean the Board as hereinbefore defined and the board of
directors or equivalent governing body of any Successor and any permitted assignee to which this
Agreement is assigned.




          SECTION 11. Dispute Resolution.




          (a) Except as otherwise specifically provided herein, the Executive and the Company each
hereby irrevocably submit to the exclusive jurisdiction of the United States District Court of
Delaware (or, if subject matter jurisdiction in that court is not available, in any state court
located within the city of Wilmington, Delaware) over any dispute arising out of or relating to
this Agreement. Except as otherwise specifically provided in this Agreement, the parties undertake
not to commence any suit, action or proceeding arising out of or relating to this Agreement in a
forum other than a forum described in this Section 11(a); provided, however, that nothing herein
shall preclude the Company or the Executive from bringing any suit, action or proceeding in any
other court for the purposes of enforcing the provisions of this Section 11 or enforcing any
judgment obtained by the Company or the Executive.




          (b) The agreement of the parties to the forum described in Section 11(a) is independent of
the law that may be applied in any suit, action or proceeding and the parties agree to such forum
even if such forum may under applicable law choose to apply non-forum law. The parties hereby
waive, to the fullest extent permitted by applicable law, any objection that they now or hereafter
have to personal jurisdiction or to the laying of venue of any such suit, action or proceeding
brought in an applicable court described in Section 11(a), and the parties agree that they shall
not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from
any such court. The parties agree that, to the fullest extent permitted by applicable



 








 




law, a final and non-appealable judgment in any suit, action or proceeding brought in any
applicable court described in Section 11(a) shall be conclusive and binding upon the parties and
may be enforced in any other jurisdiction.




          (c) The parties hereto irrevocably consent to the service of any and all process in any suit,
action or proceeding arising out of or relating to this Agreement by the mailing of copies of such
process to such party at such party’s address specified in Section 18.




          (d) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any suit, action or proceeding arising out of or
relating to this Agreement. Each party hereto (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such party would not, in
the event of any suit, action or proceeding, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waiver and certifications in this Section 11(d).




          SECTION 12. Default in Payment. Any payment not made within ten (10) business days
after it is due in accordance with this Agreement shall thereafter bear interest, compounded
annually, at the prime rate in effect from time to time at Citibank, N.A., or any successor
thereto. Such interest shall be payable at the same time as the corresponding payment is payable.




          SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN THE STATE OF
DELAWARE, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT IN ALL
RESPECTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS PRINCIPLES OF
CONFLICTS OF LAW.




          SECTION 14. Amendment; No Waiver. No provision of this Agreement may be amended,
modified, waived or discharged except by a written document signed by the Executive and a duly
authorized officer of the Company. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or
deprive such party of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. Except as provided in Section 1(t), no failure or delay by either
party in exercising any right or power hereunder will operate as a waiver thereof, nor will any
single or partial exercise of any such right or power, or any abandonment of any steps to enforce
such right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. No agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party that are not set forth
expressly in this Agreement.




          SECTION 15. Severability. If any term or provision of this Agreement is invalid,
illegal or incapable of being enforced by any applicable law or public policy, all other conditions
and provisions of this Agreement shall nonetheless remain in full force and effect so long as the
economic and legal substance of the transactions contemplated by this Agreement is



 








 







not affected in any manner materially adverse to any party. Upon any such determination that
any term or provision is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in a mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.




          SECTION 16. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative of any party hereto, and any
prior agreement of the parties hereto in respect of the subject matter contained herein is hereby
terminated and canceled. None of the parties shall be liable or bound to any other party in any
manner by any representations and warranties or covenants relating to such subject matter except as
specifically set forth herein.




          SECTION 17. Survival. The rights and obligations of the parties under the provisions
of this Agreement, including Sections 5, 7, 11, 12 and 13, shall survive and remain binding and
enforceable, notwithstanding the expiration of the Protection Period or the term of this Agreement,
the termination of the Executive’s employment with the Company for any reason or any settlement of
the financial rights and obligations arising from the Executive’s employment, to the extent
necessary to preserve the intended benefits of such provisions.




          SECTION 18. Notices. All notices or other communications required or permitted by
this Agreement will be made in writing and all such notices or communications will be deemed to
have been duly given when delivered or (unless otherwise specified) mailed by United States
certified or registered mail, return receipt requested, postage prepaid, addressed as follows:




	 	 	 
	If to the Company:
	 	First Solar, Inc.
	 

	 	350 West Washington Street
	 

	 	Suite 600
	 

	 	Tempe, AZ 85281
	 

	 	Attention: Corporate Secretary
	 
	 	 
	If to the Executive:

	 	To the Executive’s then current address on file with the Company





or to such other address as any party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.




          SECTION 19. Headings and References. The headings of this Agreement are inserted for
convenience only and neither constitute a part of this Agreement nor affect in any way the meaning
or interpretation of this Agreement. When a reference in this Agreement is made to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.



 








 








          SECTION 20. Counterparts. This Agreement may be executed in one or more counterparts
(including via facsimile), each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.




          SECTION 21. Interpretation. For purposes of this Agreement, the words “include” and
“including”, and variations thereof, shall not be deemed to be terms of limitation but rather shall
be deemed to be followed by the words “without limitation”. The term “or” is not exclusive. The
word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing
extends, and such phrase shall not mean simply “if”.




          SECTION 22. Time of the Essence. The parties hereto acknowledge and agree that time
is of the essence in the performance of the obligations of this Agreement and that the parties
shall strictly adhere to any timelines herein.



 








 




          IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date first
written above.



	 	 	 	 	 
	FIRST SOLAR, INC.,	 	 
	 
	 	 	 	 
	By:

	 	     /s/ Michael J. Ahearn	 	 
	 

	 	 	 	 
	 

	 	     Name: Michael J. Ahearn	 	 
	 

	 	     Title: Chief Executive
               Officer and Chairman	 	 
	EXECUTIVE:	 	 
	 

	 	     /s/ Mary Elizabeth Gustafsson	 	 
	 

	 	 	 	 
	 

	 	     Mary Elizabeth Gustaffson