exv10w3






Exhibit 10.3



EVERGREEN SOLAR, INC.




First Amendment to Amended and Restated

2000 Stock Option and Incentive Plan




     The Evergreen Solar, Inc. Amended and Restated 2000 Stock Option and Incentive Plan (the
“Plan”) is hereby amended as follows, effective January 1, 2009, pursuant to a resolution adopted
by the Board of Directors at its meeting held December 16, 2008:




	 	1.	 	The final sentence of Section 7(f) is amended to read as follows:






After the grant of a Performance Unit or Performance Share, the Board, in
its sole discretion, may reduce or waive any performance objective or other
vesting provisions for such Performance Unit or Performance Share in the
event of a Participant’s death or disability, or upon the occurrence of an
Acquisition (as defined in Section 9(e)).




	 	2.	 	The following new section 10(g) is added to the Plan:






(g) SECTION 409A REQUIREMENTS. Notwithstanding anything to the contrary in
this Plan or any Award agreement, the following provisions shall apply to
any payments and benefits otherwise payable to or provided to a Participant
under this Plan and any Award:




     (i) For purposes of Section 409A of the Code, each “payment” (as
defined by Section 409A of the Code) made under this Plan or an Award shall
be considered a “separate payment.” In addition, for purposes of Section
409A of the Code, payments shall be deemed exempt from the definition of
deferred compensation under Section 409A of the Code to the fullest extent
possible under (x) the “short-term deferral” exemption of Treasury
Regulation § 1.409A-1(b)(4), and (y) (with respect to amounts paid as
separation pay no later than the second calendar year following the calendar
year containing the Participant’s “separation from service” (as defined for
purposes of Section 409A of the Code)) the “two years/two-times” separation
pay exemption of Treasury Regulation § 1.409A-1(b)(9)(iii), which are hereby
incorporated by reference.




     (ii) If the Participant is a “specified employee” as defined in Section
409A of the Code (and as applied according to procedures of the Company and
its affiliates) as of his or her separation from service, to the extent any
payment under this Plan or an Award constitutes deferred compensation (after
taking into account any applicable exemptions from Section 409A of the
Code), and to the extent required by Section 409A of the Code, no payments
due under this Plan or an Award may be made until the earlier of: (x) the
first day of the seventh month following the Participant’s separation from
service, or (y) the Participant’s date of death; provided, however, that any
payments delayed during this six-month period shall be paid in the aggregate
in a lump sum, without interest, on



 









 






the first day of the seventh month following the Participant’s
separation from service.




     (iii) If this Plan or any Award fails to meet the requirements of
Section 409A of the Code, neither the Company nor any of its affiliates
shall have any liability for any tax, penalty or interest imposed on the
Participant by Section 409A of the Code, and the Participant shall have no
recourse against the Company or any of its affiliates for payment of any
such tax, penalty or interest imposed by Section 409A of the Code.




	 	3.	 	The following clause is added to the end of section 9(i): “provided that Board’s ability
to accelerate the vesting of Awards under the Plan for any participant is limited to change
in control transactions and the death, disability and retirement of such participant.





     IN WITNESS WHEREOF, the Company has caused this First Amendment to the Plan to be executed on
this 16th day of December, 2008.



	 	 	 	 	 
	 	EVERGREEN SOLAR, INC.

 	 
	 	By:  	/s/ Michael El-Hillow
 	 
	 	 	Name:  	Michael El-Hillow 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



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