Exhibit 10.2
GT SOLAR INTERNATIONAL,
INC.
RESTRICTED STOCK UNIT
AGREEMEN T
THIS RESTRICTED STOCK UNIT AGREEMENT
(this “ Agreement ”) is made as of
October 29, 2009, by and between GT Solar
International, Inc., a Delaware corporation (the “
Company ”), and Thomas Gutierrez (“
Employee ”), in accordance with the 2008 Equity
Incentive Plan of the Company, as the same may be amended from time
to time (the “ Plan ”). Certain
definitions are set forth in Section 7 of this
Agreement.
On October 29, 2009, the
Company granted to Employee 400,000 restricted stock units (the
“ RSUs ”) under the Plan. Each RSU
entitles Employee to receive from the Company one share of the
Company’s common stock, par value $.01 per share (“
Common Stock ”) for each RSU granted hereunder that
becomes vested under the terms described herein and in the
Plan. All of such shares of Common Stock that may hereafter
be delivered to Employee pursuant to this Agreement are referred to
herein as “ Employee Stock .”
The parties hereto agree as
follows:
1.
Incorporation by Reference; Plan Document Receipt .
This Agreement is subject in all respects to the terms and
provisions of the Plan (including, without limitation, any
amendments thereto adopted at any time and from time to time unless
such amendments are expressly intended not to apply to the award
provided hereunder), all of which terms and provisions are made a
part of and incorporated in this Agreement as if they were
expressly set forth herein. Any capitalized term not defined
in this Agreement shall have the same meaning as is ascribed
thereto in the Plan. Employee hereby acknowledges receipt of
a true copy of the Plan and that Employee has read the Plan
carefully and fully understands its content. In the event of
a conflict between the terms of this Agreement and the terms of the
Plan, the terms of the Plan shall control.
2.
Grant of the RSUs .
(a)
The Company granted to Employee, as of October 29, 2009,
400,000 RSUs, subject to the terms and conditions hereunder.
Employee agrees and understands that nothing contained in this
Agreement provides, or is intended to provide, Employee with any
protection against potential future dilution of Employee’s
stockholder interest in the Company for any reason. Employee
shall not have the rights of a stockholder in respect of the shares
of Common Stock underlying these RSUs until such Common Stock is
delivered to the Participant in accordance with
Section 4 .
(b)
The grant of the RSUs by the Company is subject to Employee’s
execution and delivery of the attached Proprietary Rights and
Confidentiality Agreement between Employee and the Company (or, at
the discretion of the Board, a similar agreement containing such
terms as the Board, or a duly designated committee thereof, shall
determine) (the “ Employee Confidentiality Agreement
”), if Employee is not currently subject to such an
agreement. These RSUs and all shares of the Employee Stock
shall be subject to the terms and
conditions of the
Employee Confidentiality Agreement or such similar agreement
(whether executed in connection herewith or prior to the date
hereof).
(c)
In connection with the receipt of the RSUs and the delivery of any
Employee Stock hereunder, Employee represents and warrants to, and
agrees with, the Company that:
(i)
The RSUs and the Employee Stock to be acquired by Employee pursuant
to this Agreement shall be acquired for Employee’s own
account and not with a view to, or intention of, distribution
thereof in violation of the Securities Act, or any applicable state
securities laws, and the RSUs and the Employee Stock shall not be
disposed of in contravention of the Securities Act or any
applicable state securities laws.
(ii)
This Agreement constitutes the legal, valid and binding obligation
of Employee, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Employee
do not and shall not conflict with, violate or cause a breach of
any agreement, contract or instrument to which Employee is a party
or any judgment, order or decree to which Employee is
subject.
(iii)
Employee has not taken any action that constitutes a conflict with,
violation or breach of, and the execution and delivery of this
Agreement and the other agreements contemplated hereby will not
conflict with, violate or cause a breach of, any noncompete,
nonsolicitation or confidentiality agreement to which Employee is a
party or by which Employee is bound. Employee agrees to
notify the Board of any matter (including, but not limited to, any
potential acquisition by the Company) which, to Employee’s
knowledge, might reasonably be expected to violate or cause a
breach of any such agreement.
(iv)
Employee is a resident of the State of Florida.
(v)
Employee has been advised and encouraged in writing (via this
Agreement) to consult with an attorney and a tax advisor prior to
signing this Agreement.
(d)
As an inducement to the Company to issue any RSUs to Employee, and
as a condition thereto, Employee acknowledges and agrees that
neither the issuance of the RSUs or the delivery of any Employee
Stock nor any provision contained herein shall entitle Employee to
employment with the Company or any of the Subsidiaries, or affect
the right of the Company or any of its Subsidiaries to terminate
Employee’s employment at any time, with or without
cause.
(e)
The Company and Employee acknowledge and agree that this Agreement
has been executed and delivered, the RSUs have been granted and any
Employee Stock that may be delivered hereunder will be delivered,
in connection with and as a part of the compensation and incentive
arrangements between the Company (together with its Subsidiaries)
and Employee.
(f) In
connection with the issuance of any Employee Stock hereunder,
Employee hereby agrees and acknowledges that all of the shares of
the Employee Stock are subject in all respects to the terms of this
Agreement.
2
3.
Vesting .
(a)
Except as otherwise provided in this Section 3 , the
RSUs shall become vested in accordance with the following schedule,
if as of each such date Employee has continuously served as an
employee of the Company (or any of its direct or indirect wholly
owned Subsidiaries, as applicable) since the date hereof, such
that, subject to the other terms and conditions of this Agreement,
all of the RSUs shall be vested on October 29,
2013:
|
Date
|
|
Percent of RSUs
Vested
|
|
|
October 29, 2010
|
|
25%
|
|
|
October 29 of each of the three
years thereafter, up to and including October 29,
2013
|
|
Additional 25%
|
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(b)
Except as otherwise provided in this Section 3 , if
Employee’s employment with the Company (or any of its direct
or indirect wholly owned Subsidiaries, as applicable) terminates
for any reason (including upon the death or disability of Employee
prior to the vesting of all or any portion of the RSUs awarded
under this Agreement), such unvested portion of the RSUs shall
immediately be cancelled and Employee (and Employee’s estate,
designated beneficiary or other legal representative) shall forfeit
any rights or interests in and with respect to any such
RSUs.
(c)
In addition to Section 3(a) above, upon a
termination by the Company (or any of its direct or indirect wholly
owned Subsidiaries, as applicable) without Cause or by Employee
with Good Reason of Employee’s employment with the Company
(or any of its direct or indirect wholly owned Subsidiaries, as
applicable) that also constitutes a “separation from
service” within the meaning of Code Section 409A within
twelve months following a Change in Control of the Company (a
“ Change in Control Termination ”), all
remaining unvested RSUs shall vest (for the avoidance of doubt, the
vesting described in this Section 3(c) is in
addition to, and not in lieu of, any vesting described in
Section 3(a) above).
4.
Delivery of Common Stock . Subject to the terms of the
Plan and Section 6 below, if the RSUs awarded by this
Agreement become vested, the Company shall promptly distribute to
Employee the number of shares of Common Stock equal to the number
of the RSUs that so vested; provided that to the extent
required by Code Section 409A, delivery of shares of Common
Stock upon a Participant’s “separation from
service” within the meaning of Code Section 409A shall
be deferred until the six month anniversary of such separation from
service. In connection with the delivery of the shares of
Common Stock pursuant to this Agreement, the Participant agrees to
execute any documents reasonably requested by the Company and
provide therein customary representations and warranties related to
the receipt of such shares of Common Stock.
5.
Certificates . The
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