employment with the Company and its Subsidiaries.  Executive shall be primarily based at the Company’s headquarters in Merrimack, New Hampshire but will work from time to time at the Boston offices of WilmerHale (or other appropriate location in Boston) in accordance with the needs of the Company.  Executive understands and agrees that his employment will require travel from time to time.

 

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

 

3.                Compensation and Benefits .

 

(a)                                   During the Employment Period, Executive’s base salary shall be at the rate of $ 305,000 per annum or such higher rate as the Compensation Committee of the Board (the “ Compensation Committee ”) may determine from time to time (as adjusted from time to time, the “ Base Salary ”), which salary shall be payable by the Company in proportionate, bi-weekly installments and in accordance with the Company’s general payroll practices in effect from time to time.  In addition, during the Employment Period, Executive shall be eligible to participate in all of the Company’s employee benefit programs (other than bonuses and other incentive programs, except as otherwise (i) provided herein or (ii) determined by the Board) for which senior executive employees of the Company and its Subsidiaries are generally eligible, and Executive shall be eligible to earn three (3) weeks of paid vacation and six (6) days of paid leave for illness each calendar year in accordance with the Company’s policies.  Executive’s participation in the Company’s benefit plans will be subject to the terms of applicable plan documents and the Company’s generally applicable policies, and the Company in its sole discretion may from time to time adopt, modify, interpret or discontinue such plans or policies.

 

(b)                                  During the Employment Period, the Company shall reimburse Executive for all reasonable business expenses incurred by him in the course of performing his duties and responsibilities under this Agreement in accordance with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the Company’s requirements with respect to reporting and documentation of such expenses.

 

(c)                                   In addition to the Base Salary, during the Employment Period, Executive shall be eligible to participate in the Executive Incentive Program of the Company, the terms of which for fiscal year 2009 are attached as Exhibit A hereto (the “ EIP ”), under which Executive may be eligible to receive a bonus based upon the achievement of such performance targets and other conditions as stated in the EIP; provided , however, that Executive must execute a participant agreement with the Company prior to being deemed a participant in the EIP.  Executive’s “Participation Date” under the EIP shall be December 15, 2008 .  As special consideration, Executive shall be eligible to receive a flat payment of $45,000 for the FY 2009 plan year.  This payment shall be disbursed in two installments, $22,500 on the first payroll date following the Executive’s start date and $22,500 at the same time that all other executive bonuses are disbursed.  Both installments are contingent upon the Executive being employed with the Company on the date of payment.  This $45,000 payment shall be fixed and shall not

 

2

 

fluctuate based on either Company or Executive performance.  The EIP, if any, for future years shall be determined by the Compensation Committee of the Board of Directors.  While the Company does not guarantee the existence or the terms and conditions of any incentive plan in future years, participation in such plans (including equity plans), if any, shall be extended to Executive to an extent commensurate with Executive’s position.

 

(d)                                  Subject to the approval of the Board, Executive will be eligible to receive 140,000 restricted stock units (“RSUs”) in the Company.  The terms, restrictions, limitations and termination provisions of the RSUs will be as set-forth in the form of an RSU agreement attached hereto as Exhibit B and will be subject to the Company’s 2008 Equity Incentive Plan.

 

(e)                                   All amounts payable to Executive as compensation hereunder shall be subject to all required and customary withholding by the Company and its Subsidiaries.

 

4.                Termination .

 

(a)                                   The Employment Period shall begin on the date of this Agreement and continue until the Employment Period is terminated by (i) Executive’s resignation (with or without Good Reason, as defined below) or death or Disability (as defined below) as determined by the Board in its good faith judgment or (ii) the Company at any time prior to such date with or without Cause (as defined below).  Except as otherwise provided herein, any termination of the Employment Period by the Company shall be effective as specified in a written notice from the Company to Executive; provided that, the Company shall provide at least thirty (30) days advance notice to Executive in the event the Company terminates Executive’s employment without Cause.  Executive shall provide at least thirty (30) days advance written notice of Executive’s resignation of employment, with or without Good Reason (as defined below), to the Board.

 

(b)                                  If the Employment Period is terminated by the Company without Cause, or as a result of Executive’s resignation with Good Reason, Executive shall be entitled to:

 

(i)                                      continue to receive his Base Salary, subject to applicable withholding, (paid in accordance with the Company’s general payroll practices in effect on the termination date) as special severance payments from the date of termination for a period of twelve (12) months thereafter (the “ Severance Period ”);

 

(ii)                                   to the extent permitted by the applicable benefit plans, continued participation during the Severance Period in medical and dental insurance plans sponsored by the Company on terms and conditions in effect at the time of such termination (including cost sharing, if applicable) substantially similar to those applicable to employees of the Company generally;

 

provided , however, Executive shall be entitled to the payments and benefits described in clauses (b)(i) and (b)(ii) of this paragraph if and only if Executive has executed and delivered to the Company the General Release substantially in form and substance as set forth in Exhibit C attached hereto within twenty-two (22) days following the date of termination and the General

 

3

 

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

 

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

 

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

 

(e)                                   For purposes of this Agreement, “ Cause ” shall mean with respect to Executive, one or more of the following:  (i) the commission of a felony or other crime involving moral turpitude or the commission of any other act or omission involving dishonesty, disloyalty or fraud with respect to the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) repeatedly reporting to work under the influence of alcohol or illegal drugs, the use of illegal drugs in the workplace or other repeated conduct causing the Company or any of its Subsidiaries substantial public disgrace or disrepute or substantial economic harm, (iii) substantial and repeated failure to perform duties as reasonably directed by the Board or the Company’s President and Chief Executive Officer, (iv) any act or omission aiding or abetting a supplier or customer of the Company or any of its Subsidiaries to the material disadvantage or detriment of the Company and its Subsidiaries, (v) breach of fiduciary duty, gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries or (vi) any other material breach of this Agreement which is not cured to the Company’s reasonable satisfaction within fifteen (15) days after written notice to Executive.

 

4

 

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

 

(g)                                  For purposes of this Agreement, “ Good Reason ” shall mean if Executive resigns from employment with the Company and its Subsidiaries prior to the end of the Employment Period as a result of the occurrence of one or more of the following events:  (i) the Company reduces the amount of the Base Salary (other than as a result of a general across-the-board salary reduction applicable to all senior executives of the Company)  (x) elects to eliminate the EIP without permitting Executive to participate in an annual incentive bonus plan in place of the EIP which offers a potential bonus payment comparable to that earnable at 100% of plan target by Executive under the EIP or (y) does not extend to Executive participation in equity plans commensurate with Executive’s position, to the extent senior executives of the Company participate in such equity plans, (ii) the Company changes Executive’s title and reduces his responsibilities or authority in a manner materially inconsistent with that of the position of General Counsel or (iii) the Company changes Executive’s place of work to a location outside of New Hampshire or Massachusetts; provided that in order for Executive’s resignation for Good Reason to be effective hereunder, Executive must provide written notice to the Company stating Executive’s intent to resign for Good Reason and the grounds therefor within thirty (30) days after such grounds exist and grant the Company thirty (30) days from receipt of such notice to remedy or otherwise remove the grounds supporting Executive’s resignation for Good Reason.

 

5.                Confidential Information .

 

(a)                                   Executive acknowledges that the information, observations and data (including trade secrets) obtained by him while employed by the Company and its Subsidiaries concerning the business or affairs of the Company, or any of its Subsidiaries, (“ Confidential Information ”) are the property of the Company or such Subsidiary.  Therefore, Executive agrees that he shall not disclose to any person or entity or use for his own purposes any Confidential Information or any confidential or proprietary information of other persons or entities in the possession of the Company and its Subsidiaries (“ Third Party Information ”) (other than in the ordinary course of performing his duties for the Company), without the prior written consent of the Board, either during or after his employment with the Company, unless and to the extent that the Confidential Information or Third Party Information becomes generally known to and available for use by the public other than as a result of Executive’s acts or omissions.  Executive shall deliver to the Company at the termination of the Employment Period, or at any other time

 

5

 

the Company may request, all memoranda, notes, plans, records, reports, computer files, disks and tapes, printouts and software and other documents and data (and copies thereof) embodying or relating to Third Party Information, Confidential Information, Work Product (as defined below) or the business of the Company, or any of its Subsidiaries, which he may then possess or have under his control.

 

(b)                                  Executive shall be prohibited from using or disclosing any confidential information or trade secrets that Executive may have learned through any prior employment.  If at any time during the Employment Period, Executive believes he is being asked to engage in work that will, or will be likely to, jeopardize any confidentiality or other obligations Executive may have to former employers, Executive shall immediately advise the Company’s President and Chief Executive Officer so that Executive’s duties can be modified appropriately.  Executive represents and warrants to the Company that Executive took nothing with him which belonged to any former employer when Executive left his prior employment positions and that Executive has nothing that contains any information which belongs to any former employer.  If at any time Executive discovers this is incorrect, Executive shall promptly return any such materials to Executive’s former employer and notify the Company’s President and Chief Executive Officer.  The Company does not want any such materials, and Executive shall not be permitted to use or refer to any such materials in the performance of Executive’s duties hereunder.

 

(c)                                   Executive acknowledges and agrees that the Company’s business depends on the extensive use of highly proprietary trade secrets related to the business, including (among other things) extremely complex subject matters, in particular, photovoltaic fabrications lines and photovoltaic manufacturing equipment (collectively, “ PV ”).  Executive acknowledges and agrees that the Company’s trade secrets and Confidential Information related to its business in general, and PV in particular, are unique in the solar power marketplace and that Executive will have access to, and be required to know and use, the Company’s highly proprietary information on a day-to-day basis in his job with the Company.  Accordingly, Executive acknowledges and agrees that, should a competitor to the Company gain access to the information Executive will use on a day-to-day basis while employed at the Company, the Company would lose a significant competitive advantage in the marketplace.

 

6.                Intellectual Property, Inventions and Patents .  Executive acknowledges that all discoveries, concepts, ideas, inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, patent applications, copyrightable work and mask work (whether or not including any confidential information) and all registrations or applications related thereto, all other proprietary information and all similar or related information (whether or not patentable) which relate to the Company’s or any of its Subsidiaries’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by Executive (whether alone or jointly with others) while employed by the Company and its Subsidiaries, whether before or after the date of this Agreement (“ Work Product ”), belong to the Company or such Subsidiary.  Executive shall promptly disclose such Work Product to the Board and, at the Company’s expense, perform all actions reasonably requested by the Board (whether during or after the Employment Period) to

 

6

 

establish and confirm such ownership (including, without limitation, assignments, consents, powers of attorney and other instruments).

 

7.                Non-Compete, Non-Solicitation .

 

(a)                                   Executive acknowledges and agrees that should Executive depart the Company and become engaged by a competitor within a one (1) year period following his departure, Executive would by necessity utilize and rely upon the extensive proprietary information, Confidential Information and trade secrets, related to the business, that Executive was required to know, and use, on a day-to-day basis while employed by the Company.  Executive also acknowledges that, during the course of his employment with the Company and its Subsidiaries, he shall become intimately familiar with the Company’s trade secrets and with other Confidential Information concerning the Company and its Subsidiaries and that his services shall be of special, unique and extraordinary value to the Company and its Subsidiaries.  Therefore, Executive agrees that, during the Employment Period and for one (1) year thereafter (the “ Noncompete Period ”), he shall not directly or indirectly own any interest in, or, in a business capacity, manage, control, participate in, consult with, render services for, be employed by, or in any manner engage in, any business or entity competing with the businesses of the Company or its Subsidiaries as such businesses exist or are in process during the Employment Period or on the date of the termination of the Employment Period, within any geographical area in which the Company or its Subsidiaries engage in such business, or actively plan to engage in such businesses, at the time of Executive’s departure from the Company.  Nothing herein shall prohibit Executive from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded, so long as Executive has no active participation in the business of such corporation.  For purposes of this Agreement, competitors of the Company shall include, but not be limited to, the companies listed in Exhibit D hereto.  Nothing herein will restrict Executive from the right to practice law following the termination of his employment with the Company.

 

(b)                                  In addition, during the Noncompete Period, Executive shall not directly, or indirectly through another person or entity, (i) induce or attempt to induce any employee of the Company or any Subsidiary to leave the employ of the Company or such Subsidiary, or in any way interfere with the relationship between the Company or any Subsidiary and any employee thereof, (ii) hire any person who was an employee of the Company or any Subsidiary during the 6-month period prior to the date of Executive’s employment termination or (iii) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of the Company or any Subsidiary with whom Executive had any material contact while employed by the Company to cease doing business with the Company or such Subsidiary, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any Subsidiary.  During and after the Employment Period, Executive shall not directly or indirectly through another person or entity disparage, criticize, defame, slander or otherwise make any negative statements or communications regarding the Company or its Subsidiaries or affiliates or their respective past and present investors, officers, directors or employees.

 

7

 

and shall not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which Executive is a party or by which he is bound, (ii) Executive is not a party to or bound by any employment agreement, noncompete agreement, confidentiality agreement or other restriction with any other person or entity, which would be breached by entering into this Agreement and (iii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive, enforceable in accordance with its terms.  Executive hereby acknowledges and represents that he has consulted with independent legal counsel regarding his rights and obligations under this Agreement and that he fully understands the terms and conditions contained herein.

 

11.          Survival .  Paragraphs 5 through 9, and 27 shall survive and continue in full force in accordance with their terms notwithstanding the termination of the Employment Period.

 

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

 

Notices to Executive:

 

Hoil Kim

150 Fairway Road

Chestnut Hill, MA 02467

 

Notices to the Company:

 

GT Solar International, Inc.
243 Daniel Webster Highway
Merrimack, NH 03054
Attn: President and Chief Executive Officer

 

or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.  Any notice under this Agreement shall be deemed to have been given when so delivered, sent or mailed.

 

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

 

14.          Complete Agreement .  This Agreement, the offer letter dated November 24, 2008, those documents expressly referred to herein and other documents of even date herewith

 

9

 

embody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

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

 

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

 

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

 

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

 

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

 

20.          Insurance .  The Company may, at its discretion, apply for and procure in its own name and for its own benefit life and/or disability insurance on Executive in any amount or amounts considered advisable.  Executive agrees to cooperate in any medical or other examination, supply any information and execute and deliver any applications or other instruments in writing as may be reasonably necessary to obtain and constitute such insurance.  Executive hereby represents that he has no reason to believe that his life is not insurable at rates now prevailing for healthy men of his age.

 

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

 

10

 

owing from the Company or any of its Subsidiaries to Executive any federal, state, local or foreign withholding taxes, excise tax or employment taxes (“Taxes”) imposed with respect to Executive’s compensation or other payments from the Company or any of its Subsidiaries or Executive’s ownership interest in the Company (including, without limitation, wages, bonuses, dividends, the receipt or exercise of equity options and/or the receipt or vesting of restricted equity).

 

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

 

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

 

11

 

SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

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

 

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

 

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

 

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

 

(a)                    It is intended that each installment of the severance payments and benefits provided under this Agreement shall be treated as a separate “payment” for purposes of Section 409A of the Code and the guidance issued thereunder (“Section 409A”).  Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.

 

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

 

12

 

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

 

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

 

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

 

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

 

(e)                    All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such r