Exhibit 10.4 AMENDMENT TO NON-COMPETITION AND NON-SOLICITATION AGREEMENT MITIGATION CLAUSE WAIVER

EX-10.4 5 ex104amendmenttonon-compe.htm AMENDMENT TO NON-COMPETITION AGREEMENT BRUCE SOHN WebFilings | EDGAR view

Exhibit 10.4

AMENDMENT TO

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

MITIGATION CLAUSE WAIVER

WHEREAS, Employee and Employer are party to a Non-Competition and Non-Solicitation Agreement effective as of March 12, 2007 (the “NonCompete Agreement”) and an Amended and Restated Employment Agreement dated November 3, 2008 (as amended and in effect on the date hereof (the “Employment Agreement”)

WHEREAS, on April 30, 2011, Employee's employment with Employer will terminate without “cause” (as defined in the Employment Agreement);

WHEREAS, Employee is eligible to receive certain severance payments under the Employment Agreement if the release condition set forth in the Section 1.5(b)(ii) of the Employment Agreement Section is timely satisfied;

WHEREAS, Employee has indicated that he will timely satisfy the release condition;

WHEREAS, Section 1.5(b)(iii) of the Employment Agreement is a mitigation clause that provides for the reduction of Employee's severance payments by the amount of compensation earned by Employee from other employment in the twenty-four month period following the employment termination;

WHEREAS, Employee wishes Employer to waive the mitigation clause of Section 1.5(b)(iii) of the Employment Agreement;

WHEREAS, Employer wishes to extend the “Restricted Period” under the NonCompete Agreement from twenty-four months to thirty-six months after Employee's termination of employment;

NOW, THEREFORE, the parties agree as follows:


1.	Section 1.1 of the NonCompete Agreement is amended to increase the Restricted Period from twenty-four to thirty-six months following Employee's termination of employment.


2.	Employer waives the mitigation clause of Section 1.5(b)(ii) of the Employment Agreement and shall have no further force and effect.


3.	Except as provided above, the NonCompete Agreement and Employment Agreement shall remain in full force and effect.



Signed:	/s/ Bruce Sohn 4/28/11 Bruce Sohn

Agreed to by First Solar, Inc.
	By: /s/ Carol Campbell Carol Campbell Its: Executive Vice President, Human Resources