Amendment to Employment Agreement
Exhibit 10.33
Amendment
to
This Amendment is made effective as of
July 28, 2009 by and between First Solar, Inc. a Delaware corporation having its
principal office at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000
(hereinafter “Employer”) and Xxxx Xxxxxxxxx (hereinafter
“Employee”)
WITNESSETH:
WHEREAS,
Employer and Employee are party to an Employment Agreement dated as of December
30, 2008 (the “Employment Agreement”);
WHEREAS,
at its meeting on July 28, 2009, the Compensation Committee of the Board of
Directors authorized an amendment to the Employment Agreement to provide for
100% vesting of the unvested portion of Employee’s new hire equity grant in the
event Employee’s employment terminates without “cause” (as defined in the
Employment Agreement);
WHEREAS,
the parties wish to memorialize this action by amending the Employment Agreement
accordingly;
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 that the Employment Agreement is amended as provided herein.
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1.
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Section
1.5(d) of the Employment Agreement is amended to read in its entirety as
follows:
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(d) Equity Award
Vesting.
(i) Vesting of Hiring Grant On
Termination without Cause. If Employee’s employment is
terminated by Employer without Cause, the option to purchase 187,501 shares of
Employer’s common stock granted to Employee by Employer on November 16, 2006
(the “Initial Equity Award”) shall become fully vested as of the effective date
of such termination, to the extent not then vested.
(ii) Other Equity
Awards. In the event of (A) the termination of Employee’s
employment with Employer due to Employee’s death, (B) the termination of
Employee’s employment with Employer due to Disability, or (C) the termination of
Employee’s employment by Employer without Cause, then, except as otherwise
provided in Section 1.5(d)(i) with respect to the Initial Equity Award, Employee
shall on the date of such termination of employment immediately receive an
additional twelve (12) months’ vesting credit with respect to the stock options,
stock appreciation rights, restricted stock and other equity or equity-based
compensation of Employer granted to Employee in the course of his employment
with Employer (such other awards together with the Initial Equity Award,
collectively “Equity Awards”).
(iii) Effect of
Vesting. 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 one (1) year and 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.
(iv) Conflict with Award
Agreement. If the terms of Section 1.5(d) of this Agreement
are more favorable to Employee than 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.
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2.
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Except
as amended above, the Employment Agreement shall remain in full force and
effect.
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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.
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EMPLOYER
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EMPLOYEE
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/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Chief
Executive Officer
Chairman
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/s/ Xxxx
Xxxxxxxxx
Xxxx
Xxxxxxxxx
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Date: 8-25-09
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