Retirement Agreement - GT Solar Inc. and Kedar P. Gupta
November 21, 2006
Dear Dr. Gupta:
This letter sets forth the agreement between you and GT Solar Incorporated, a Delaware corporation (the "Company," and together with GT Solar International, Inc., a Delaware corporation, GT Solar Holdings, LLC, a Delaware limited liability company, and each of the Company's subsidiaries, the "Group," and each individually a "Group Company"). By signing and delivering to the Company as provided below this letter agreement (this "Agreement"), you and the Company hereby agree as follows:
1. Retirement from the Company.
The termination of your employment and the termination of your board membership with each Group Company (as applicable) will be effective on December 31, 2006 (the "Retirement Date"). As of the Retirement Date, you will automatically (i) no longer be an employee or a director of any Group Company and (ii) cease to be required to fulfill any of the duties and responsibilities associated with any of the aforementioned positions with any Group Company. In addition, the Employment Agreement by and between you and the Company, dated as of December 30, 2005 (the "Employment Agreement") will terminate and be of no further force or effect as of the Retirement Date.
2. Severance Benefits.
In exchange for your execution and delivery to the Company of this Agreement and the General Release in the form attached as Exhibit A hereto (the "Release"), and only for so long as you comply with the Confidentiality and Non-Competition Agreement (as defined below) and only for so long as you do not revoke, or attempt to revoke, the Release or otherwise assert in writing that the Release is unenforceable, the Company agrees to provide you for a twenty-four (24) month period from and after the Retirement Date with all of the "Severance Benefits" (as defined in the Employment Agreement) to which you would have been entitled pursuant to Section 3.7.1 of the Employment Agreement had you been terminated by the Company without "Cause" (as defined in the Employment Agreement). Such Severance Benefits shall not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or any Group Company, but shall be subject to all required and customary withholding by the Company or any Group Company. You understand that the Severance Benefits to you represent consideration for signing the Release and are not salary, wages or benefits to which you were already entitled. You also acknowledge and represent that you have already received everything to which you were entitled by virtue of your employment relationship and/or director relationship with the Company or any other Group Company.
3. Confidentiality and Non-Competition Agreement.
(a) Notwithstanding the termination of your employment and directorships with the Group as set forth in this Agreement, you shall continue to be bound by the restrictions set forth in that certain Confidentiality and Non-Competition Agreement by and between you and the Company, dated as of December 30, 2005 (the "Confidentiality and Non-Competition Agreement"), on the terms set forth therein. The Company understands that you may have an interest in certain projects related to the solar power industry, including, specifically, projects related to reflectometers, non-aqueous wafer cleaning systems, and single crystal technologies. Upon your request on a case-by-case basis, the Company will consider waiving specific aspects of the Confidentiality and Non-Competition Agreement and, potentially, licensing certain technologies to you on terms the Company considers commercially reasonable. However, any waiver or license by the Company would be in the Company's sole discretion and would be subject to mutually agreeable terms.
(b) As you are aware, the Company is party to a license agreement (the "NREL Agreement") with the National Renewable Energy Laboratory ("NREL") under which it has licensed certain technology from NREL. Notwithstanding subsection (a) above, at your request the Company will, on reasonable commercial terms to be negotiated in good faith, (i) sublicense to you, for your use in connection with projects related to reflectometers, certain of the technology it has licensed from NREL (provided that such sublicense is permitted under the terms of the NREL Agreement) and (ii) waive provisions of the Confidentiality and Non-Competition Agreement to the extent necessary to permit you to pursue such projects based on such sublicense.
4. Additional Agreements.
(a) You agree to reasonably cooperate with each Group Company in any internal investigation, administrative, regulatory, or judicial proceeding or dispute with a third party. You understand and agree that your cooperation may include, but not be limited to, making yourself available to the Group or any Group Company upon reasonable notice for interviews and factual investigations; appearing at the request of the Group or any Group Company to give testimony without requiring service of a subpoena or other legal process; volunteering to the Group pertinent information; and turning over to the Group all relevant documents which are or may come into your possession all at times and on schedules that are reasonably consistent with your other permitted activities and commitments. You understand that in the event the Company asks for your cooperation in accordance with this provision, the Company will reimburse you solely for reasonable travel expenses (including lodging and meals) upon your submission of receipts.
(b) You agree not to disparage any Group Company, or any of such Group Company's past or present investors, officers, directors, members or affiliates or any of such members or affiliates' officers, directors or employees. The Company agrees to cause each of its executive officers and directors not to disparage you. You further agree that as of the Retirement Date, you will return to the Group any and all property, tangible or intangible, relating to its business, which you possessed or had control over at any time (including, but not limited to, company-provided credit cards, building or office access cards, keys, computer equipment, manuals, files, documents, records, software, customer data base and other data) and that you shall not retain any copies, compilations, extracts, excerpts, summaries or other notes of any such manuals, files, documents, records, software, customer data base or other data.
5. Confidentiality of this Agreement.
The contents of this Agreement (including the Release), including but not limited to its financial terms, are strictly confidential. By signing this agreement you agree and represent that you will maintain the confidential nature of the Agreement (including the Release), except (a) to legal counsel, tax and financial planners, and immediate family who agree to keep it confidential; (b) as otherwise required by law, in which case you shall notify the Company in writing in advance of disclosure; and (c) as necessary to enforce this Agreement.
The Company agrees that it will keep the contents of this Agreement confidential, except (a) to its executive staff and governing bodies, as necessary or appropriate, and to its outside counsel and auditors; (b) as otherwise required by law; and (c) as necessary to enforce this Agreement.
6. No Transfer or Assignment.
You and the Company agree that no interest or right you have or any of your beneficiaries has to receive payment or to receive benefits under this Agreement shall be subject in any manner to sale, transfer, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind, except as required by law. Nor may such interest or right to receive payment or distribution be taken, voluntarily or involuntarily, for the satisfaction of the obligations or debts of, or other claims against you or your beneficiary, including for alimony, except to the extent required by law.
7. No Admissions.
This Agreement shall not be construed as an admission of any wrongdoing either by you or by the Company, its affiliates, or its and their directors, officers, agents and employees.
8. No Other Agreement.
This Agreement contains the entire agreement between you and the Company. No part of this Agreement may be changed except in writing, executed by both you and the Company.
9. Third Party Beneficiaries.
The Company's rights under this Agreement shall inure to the benefit of each other Group Company and to the officers, directors, employees, stockholders, members and affiliates of each Group Company and its affiliates, and your rights to Severance Benefits under this Agreement shall inure to the benefit of you and your successors and permitted assigns. Except as set forth in the preceding sentence, the parties hereto intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person other than the parties hereto. The Company shall require any successor to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such purchase had taken place, unless the Company at the time of such sale enters into other reasonable arrangements to protect your rights to receive Severance Benefits. As used in this Agreement, "Company" shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement, by operation of law or otherwise.
10. Governing Law.
This Agreement shall be interpreted in accordance with the laws of the State of New Hampshire. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision shall be held to be prohibited or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting the remainder of such provision or any of the remaining provisions of this Agreement.
This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same Agreement. This Agreement and any amendments hereto, to the extent signed and delivered by means of digital imaging and electronic mail or a facsimile machine, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.
* * * * * *
Please indicate your agreement by signing this letter and returning it to us on or before 11/21, 2006.
|Very truly yours,|
GT SOLAR INCORPORATED
/s/ THOMAS M. ZARRELLA
Name: Thomas M. Zarrella
AGREED TO AND ACCEPTED BY:
/s/ KEDAR P. GUPTA
Kedar P. Gupta
Dated: 11/21, 2006
I, Kedar P. Gupta, in consideration of and subject to the performance by GT Solar Incorporated, a Delaware corporation (together with GT Solar International, Inc., a Delaware corporation, GT Solar Holdings, LLC, a Delaware limited liability company, and each of the Company's subsidiaries, the "Company"), of its obligations under the Employment Agreement. dated as of December 30. 2005 (the "Employment Agreement") and the Retirement Agreement, dated as of the date hereof (the "Retirement Agreement"), do hereby release and forever discharge as of the date hereof the Company and its affiliates and all present and former directors, officers, agents, representatives, employees, successors and assigns of the Company and its affiliates and the Company's stockholder and the affiliates, officers, manager, members and indirect owners thereof (collectively, the "Released Parties") to the extent provided below.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
|DATE: 11/21, 2006||
/s/ KEDAR P. GUPTA
Kedar P. Gupta