exv10w42






EXHIBIT 10.42



***CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document have been omitted pursuant
to a request for confidential treatment and, where applicable, have been marked with an asterisk
(“[****]”) to denote where omissions have been made. The confidential material has been filed
separately with the Securities and Exchange Commission.***




FIRST AMENDMENT TO SUPPLY AGREEMENT





THIS FIRST AMENDMENT TO THE SUPPLY AGREEMENT (this “First Amendment”) is made and entered into as
of October 2, 2009 (the “Signing Date”) by and between EVERGREEN SOLAR, INC., a Delaware
Corporation, having its registered office at: 138 Bartlett Street, Marlborough, MA, U.S.A.
represented by Richard Chleboski (hereinafter “ESLR”), and SOLARICOS TRADING, LTD., a company
organized and existing under the laws of Cyprus, having its registered office at 70 JF Kennedy
Avenue, Papabasiliou House, 151 Floor, Nicosia 1076. Cyprus, represented by Director Khomchenko
Evgenia, acting on the bases of the Articles of Association (hereinafter “NITOL”), for the purpose
of amending and supplementing the Supply Agreement dated October 24, 2007 that was entered into by
the Parties (the “Original Agreement”). Each of ESLR and Nitol is referred to herein individually
as a “Party” and collectively as “Parties”.




Now, therefore, in consideration of mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:




	 	1.	 	Amendment to Section 2.1. Section 2.1 of the Original Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:






	 	2.1	 	Starting on the First Shipment Date and each Year during the term of this
Agreement thereafter, ESLR agrees to purchase and accept delivery from NITOL, and
NITOL agrees to sell to ESLR, the Annual Quantity of Product as determined in
accordance with Appendix I to this Agreement (as such Appendix may be adjusted in
accordance with Section 5.5 below, the “Pricing Schedule”), at the prices as
determined in accordance with Appendix I. This Agreement constitutes a firm order from
ESLR to purchase and a firm commitment for NITOL to supply a minimum of [****] metric
tons and a maximum of [****] metric tons of Product, as such amount may be determined
in accordance with the provisions of this Agreement and Appendix I, that cannot be
cancelled during the term of this agreement except as set forth in Section 9 below.






	 	2.	 	Amendment to Section 4.1. Section 4.1 of the Original Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:






	 	4.1	 	The first shipment is due to be shipped on or after [****] as agreed by the
Parties but no later than [****], 2009.




 









 












	 	3.	 	Amendment to Section 5.2. Section 5.2 of the Original Agreement is hereby amended by deleting
such section in its entirety and replacing it with the following:






	 	5.2	 	Within fifteen (15) Business days after the Effective Date, ESLR shall
provide NITOL a deposit of Ten Million U.S. Dollars ($10,000,000) with a further
deposit payment of Five Million U.S. Dollars ($5,000,000) within 15 days of the [****]
(together the “Deposit”) as advance payment for Products to be delivered under this
Agreement. The Deposit shall be divided by the minimum volume of Product to be shipped
and accepted in any given Year such that the Deposit is credited as payment for
shipments according to the table below:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Credit per
	Year	 	Deposit Credited	 	Minimum Volume	 	Kilogram
	2009
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	2010
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	2011
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	2012
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	2013
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	2014
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	 	 	 	 	 	 	 
	Total
	 	$	[****]	 	 	 	[****]	 	 	$	[****]	 
	 	 	 	 	 	 	 







The total dollar value shall be credited each Year and shall be applied ratably to the first
quantity of Product shipped and accepted up to the minimum volume in any Year. If for any reason
the minimum volume is not shipped and accepted the credit will be applied, in addition to the
credit outlined above for the subsequent Year, to the first volumes shipped in the following Year.
In all cases the total credit to be provided shall equal $15,000,000.




	 	4.	 	Amendment to Appendix I. Appendix I to the Original Agreement is hereby amending by deleting
such appendix in its entirety and replacing it with Appendix 1 attached hereto.
	 
	 	5.	 	Definitions. All terms used, but not defined, in this First Amendment shall have the
respective meanings set forth in the Original Agreement.
	 
	 	6.	 	Headings; Interpretation. The section headings in this First Amendment are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this First
Amendment. The Parties hereby acknowledge and agree that this First Amendment has been
prepared jointly and no rule of strict construction shall be applied against either Party. In
this First Amendment, the singular shall include the plural and vice versa and the word
“including” shall be deemed to be followed by the phrase “without limitation”. The terms
“herein” and “hereunder” and similar terms shall be interpreted to refer to this entire First
Amendment.




2









 






	 	7.	 	Effective Date of Amendment; Incorporation of Terms; Continuing Effect. This First Amendment
shall be deemed effective for all purposes as of the Signing Date of this First Amendment. All
of the amended provisions set forth in this First Amendment shall be deemed to be incorporated
in. and made a part of, the Original Agreement, and the Original Agreement, as amended by this
First Amendment shall be read, taken and construed as one and the same agreement. Except as
modified or supplemented herein the Original Agreement shall remain in full force and effect
as set forth therein. Upon execution of this First Amendment the Parties each hereby
irrevocably and unconditionally agree to release and forever discharge the other Parties,
including all of the other Parties’ affiliates, predecessors, successors, assigns or
subsidiaries, or any of their directors, supervisors, officers or employees, from any and all
liabilities and obligations of any nature, whether past. present, future or contingent,
whether due or incurred, known or unknown, including without limitation all claims, debts,
demands, causes of action, duties, sums of money, covenants, contracts, controversies.
agreements, promises, doings, omissions, damages, judgments, costs, expenses and losses
arising out of and/or in connection with or related to the Original Agreement, it being the
intention of all the Parties that the Original Agreement as amended by this First Amendment
shall operate as a full and final settlement of all past, current and future liability
whatsoever between all the Parties arising out of and/or in connection with the Original
Agreement.
	 
	 	8.	 	Counterparts. This First Amendment is executed in the English simultaneously in two identical
original counterparts, each of which shall be deemed an original. but all of which together
shall constitute one and the same instrument. Both counterparts have equal force and validity.





[signatures next page]








3









 







IN WITNESS WHEREOF, the Parties, intending to be bound, have caused this Amendment to be executed
on their behalf by their duly authorized representative as of the day and year first above written.




	 	 	 	 	 	 
	ESLR:

	 	NITOL:	 
	 
	 	 	 	 
	EVERGREEN SOLAR, INC.

	 	SOLARICOS TRADING, LTD.	 	 
	 
	 	 	 	 	 	 
	By:  

	 /s/ Richard G. Chleboski	 	By:  	 /s/ Khomchenko Evgenia	 	 
	 	Name: Richard G. Chleboski

	 	 	Name: Khomchenko Evgenia	 	 
	 	Title: Vice President

	 	 	Title: Director	 	 
	 	Authorized Signatory

	 	 	Authorized Signatory	 	 






 









 







Appendix I




Pricing Schedule



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	2009	 	2010	 	2011	 	2012	 	2013	 	2014	 	TOTALS
	Fixed Price, $
	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	 	 	 
	Fixed Price Volume, MT
	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 
	Prepayment Return, M$
	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 
	Variable Max Price, $
	 	 	 	 	 	 	 	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	 	 	 
	Variable Min Price, $
	 	 	 	 	 	 	 	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	$	[****]	 	 	 	 	 
	Variable Price volumes, MT
	 	 	 	 	 	 	 	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Volumes, MT
	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 	 	 	[****]	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 





[****]