UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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FOR THE FISCAL YEAR ENDED DECEMBER 31, 2010
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from to
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Commission File Number 000-31687
EVERGREEN SOLAR, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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04-3242254
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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138 Bartlett Street
Marlboro, Massachusetts 01752
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(508) 357-2221
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(Address of principal executive offices)(zip code)
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(Registrant’s telephone number, including area code)
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Securities
registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which registered
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Common Stock, Par Value $.01 Per Share
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Nasdaq Stock Market LLC
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Securities registered pursuant to Section 12(g) of the Act:
None
(Title of class)
Indicate by
check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
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Yes
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No
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15(d) of the Exchange
Act.
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Yes
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No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90
days.
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Yes
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No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such
files).
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Yes
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No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will
not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
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Indicate by check mark whether the registrant is
a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated Filed
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Non-accelerated filer
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(do not check if a smaller reporting company)
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Smaller Reporting Company
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Act).
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Yes
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No
The aggregate market value of the registrant’s voting and non-voting common equity held by non-affiliates as of July 3, 2010 was approximately $113.5 million.
As of April 20, 2011, there were 38,592,385, shares of the registrant’s Common Stock, $.01 par value per share, outstanding.
Explanatory Note
This Amendment No. 1 (this “Amendment”) to the Form 10-K filed by Evergreen Solar, Inc (the “Company”) for the
fiscal year ended December 31, 2010, is being filed to amend the Form 10-K which the Company filed with the Securities and Exchange Commission on March 9, 2011 (the “Annual Report”). This Amendment is filed with the
Securities and Exchange Commission solely for the purpose of including in the Annual Report the information required by Part III of Form 10-K that the Company intended to incorporate by reference from its definitive proxy statement pursuant to
Regulation 14A. The Company will not file its definitive proxy statement within 120 days of its fiscal year ended December 31, 2010 and is therefore amending and restating Items 10-14 of Part III contained herein in their entirety. Except as
described above, this Amendment is not intended to update any other information presented in the Annual Report.
As required,
currently-dated certifications from the Company’s Principal Executive and Principal Financial Officers have been included as exhibits to this Amendment.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Set
forth below is certain information regarding our directors and executive officers. The age of each director and executive officer listed below is given as of April 20, 2011. Our stockholders elect members of the Board of Directors to serve
until their respective successors are elected and qualified or until earlier resignation or removal.
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Name
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Age
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Position
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Michael El-Hillow
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Chief Executive Officer, President and Director
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Donald W. Reilly
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Chief Financial Officer
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Richard G. Chleboski
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Chief Strategy Officer
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Christian M. Ehrbar
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Vice President, General Counsel and Secretary
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Dr. Lawrence Felton
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Chief Technology Officer
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Ian Gregory
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Vice President, Marketing
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Yeok Chan (Henry) Ng
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President and General Manager, Asia Operations
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Gary T. Pollard
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Vice President, Human Resources
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Peter Rusch
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Vice President, Global Sales
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Daniel P. Russell
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Vice President, Worldwide Expansion
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Carl Stegerwald
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Vice President, Construction Management and Facilities Engineering
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Tom L. Cadwell (1)(2)
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Director
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Allan H. Cohen (1)(3)
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Director
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Dr. Peter W. Cowden (2)(3)
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Director
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Edward C. Grady (1)(3)
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Chairman of the Board of Directors
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Dr. Susan F. Tierney (2)
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Director
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(1)
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Member of the Audit Committee.
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(2)
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Member of the Nominating and Corporate Governance Committee.
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(3)
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Member of the Compensation Committee.
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Class
II Director Nominee (Term Expiring in 2011):
Allan H. Cohen
has served as a director since September
2005. Mr. Cohen became the National Managing Director – Quality and Risk Management for RSM McGladrey, Inc., following the acquisition of the business of Caturano and Company, Inc. in July, 2010. RSM McGladrey, Inc. together with
McGladrey & Pullen, LLP ranks as the fifth largest U.S. provider of assurance, tax and
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consulting services. At Caturano, then New England’s largest independent CPA firm, Mr. Cohen served as its Director of Risk Management beginning in April 2008 and become its Chief
Risk Officer in September 2009. From July 2005 through July 2010, Mr. Cohen has served on the advisory board of Plexus Financial Technologies, LLP, an early-stage software provider for financial advisors. Mr. Cohen has served
since May 2002 as a senior member of the wind down team at Arthur Andersen LLP, and also continues to serve as a trustee of the $800M Andersen pension and 401K plans covering nearly 8,000 former employees. Mr. Cohen was a partner with
Andersen from 1984 through August 2002, serving in a variety of U. S. and global risk and general management roles. In addition, he serves as a trustee for several trusts managed by The Boston Foundation and Mellon Financial, and as a trustee
of a major Reform Jewish Congregation and of a performing arts organization. Mr. Cohen received his MBA from Rutgers Graduate School of Management in 1973 and his BA in Economics, with honors, from Rutgers College in 1972. Mr. Cohen has
been a Certified Public Accountant since 1975.
Mr. Cohen’s significant experience and background in the practice of public accounting qualifies him as a financial expert for
the Board. In addition, he brings significant global management perspective and both large and small organization risk management experience and insights to the Board. Mr. Cohen is an experienced fiduciary with demonstrated experience
on behalf of shareholders, ERISA participants, beneficiaries and other constituencies.
Dr. Susan F.
Tierney
has served as a director since August 2008. Dr. Tierney is a Managing Principal at Analysis Group. Prior to her role there, she held senior positions at Lexecon (formerly the Economics Research Group). For the past 15 years with
Analysis Group and Lexecon she has consulted to electric utilities, other energy companies, large energy customers, government agencies, and others on energy markets, the structure and regulation of the electric industry in the U.S. and other
countries. Since February 2010, Dr. Tierney has served as a director of EnerNOC, Inc., a leading provider of energy management solutions. Since 2000, she has served as a minister with the China Sustainable Energy Program advising Chinese
leadership on energy issues. Dr. Tierney serves as co-chair of the National Commission on Energy Policy and chairs the board of directors of The Energy Foundation, a non-profit organization. She also serves as a director of the Clean Air Task Force,
Clean Air-Cool Planet, and the Northeast States Center for a Clean Air Future. Until November 2009, Dr. Tierney served as a director of Renegy Holdings, Inc., a biomass-to-electricity company formed from the 2007 merger of NZ Legacy and
Catalytica Energy Systems, Inc., where she served as a director since December 2001. From 2002 until 2004, she served as chairperson of the board for the Electricity Innovation Institute (a subsidiary of the Electric Power Research Institute, Inc.,
or EPRI), and she was a director of EPRI from 1998 to 2003 and from 2005 to 2006. From 1982 to 1995, Dr. Tierney served a variety of Federal and Massachusetts agencies, including senior roles in the Clinton and Weld administrations. She
serves and has served on a number of other boards of directors and advisory panels for numerous businesses and organizations involved with clean energy markets and policy. Dr. Tierney earned her Ph.D. and MA degrees in regional planning at Cornell
University and her BA at Scripps College.
As a director of Evergreen Solar, Dr. Tierney draws on her vast experience in
economics, regulation and energy policy to provide our Board of Directors and management team with an in depth understanding of how the nascent alternative energy sector and Evergreen Solar can compete and expand globally.
Class III Directors (Term Expiring in 2012):
Tom L. Cadwell
has served as a director since April 2007. Mr. Cadwell is currently President and Chief Executive Officer of Confluence Solar, Inc., a private company formed to provide
substrate materials to the solar industry. He has also served as the Executive Vice Chairman of the Board of Directors of Integrated Materials, Inc., a manufacturer of pure polysilicon products vital to semiconductor diffusion processes, since
December 2006. From December 2002 until November 2006, Mr. Cadwell served as the President and Chief Executive Officer of Integrated Materials, Inc. From 2000 until February 2002, Mr. Cadwell served as the President and Chief Executive
Officer of Tecstar, Inc., or Tecstar, a leader in metal organic chemical vapor deposition processes for solar cells for satellite power systems as well as light emitting diodes for leading edge applications. Prior to joining Tecstar,
Mr. Cadwell held executive level positions in the semiconductor equipment and silicon wafer industries. Mr. Cadwell holds an MBA from Saint Louis University and a BS in Civil Engineering from the University of Missouri at Rolla.
Mr. Cadwell’s vast experience in the silicon industry from both a technology perspective and as a CEO provides the
Board of Directors with significant insights as we continue to refine our unique silicon-based wafer making technology.
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Dr. Peter W. Cowden
has served as a director since October 2006.
Dr. Cowden is the Founder and President of EDI, an executive level coaching and organizational consulting firm. His clients include Fortune 500 companies, venture backed startups and private equity firms. He started EDI in February 1998.
Dr. Cowden’s corporate career includes five years as a corporate human resource executive with Eastman Kodak Company. Dr. Cowden has also held senior human resource positions with Agfa/Compugraphics and Stone & Webster
Engineering Corporation. Dr. Cowden received his doctorate degree from Harvard University in 1977, a master’s degree from Yale University in 1974 and a bachelor’s degree from Claremont Men’s College in 1972.
Dr. Cowden’s expertise is assuring organizational strategy (structure, talent and processes) are developed in a way to maximize
the implementation of business strategy. A key component of these processes is assuring that compensation design and plans are aligned accordingly. This background is very important to the Board of Directors as the Company seeks to attract and
retain executives and key managers to significantly enhance operations in the United States and expand rapidly in China.
Class I Directors
(Term Expiring in 2013):
Michael El-Hillow
rejoined the board of directors in September 2010. He had
previously served as a director from August of 2004 until December 2006, including service as Chairman from September 2005 to December 2006. Contemporaneously with his reappointment as a director, Mr. El-Hillow was elected as President and
Chief Executive Officer of the Company. Prior to becoming President and CEO, Mr. El-Hillow had served as Chief Financial Officer, Chief Operations Officer and Secretary since September 2009. He assumed responsibility for worldwide manufacturing
and operations as COO after serving as CFO since January 2007, when he resigned from our Board of Directors to take on that role. Prior to becoming an executive at Evergreen Solar, Mr. El-Hillow served as Chief Financial Officer of MTM
Technologies, Inc. from January 2006 to September 2006. Mr. El-Hillow was Executive Vice President and Chief Financial Officer of Advanced Energy from October 2001 to December 2005. Prior to joining Advanced Energy, he held senior executive
roles at Helix Technology Corporation, a major supplier of high-vacuum products principally to the semiconductor capital equipment industry, and A.T. Cross Company. Previously Mr. El-Hillow had been an audit partner at Ernst & Young.
He received an MBA from Babson College and a BS in Accounting from the University of Massachusetts; and he is a Certified Public Accountant.
Mr. El-Hillow brings to the Board of Directors his demonstrated leadership capabilities as the prior Chairman of the Board of Evergreen Solar, and his well-established abilities as a public company
senior officer from his positions as Chief Financial Officer at Advanced Energy and Helix Technology, both companies having significant ties to the photovoltaic products industry and electronics products manufacturing.
Edward C. Grady
has served as a director since September 2005 and became Chairman of the Board in September 2010.
Mr. Grady was President and Chief Executive Officer of Brooks Automation, Inc., or Brooks, from October 2004 to September 2007 and a director of Brooks from September 2003 to February 2008. From February 2003 until October 2004, Mr. Grady
was President and Chief Operating Officer of Brooks. From October 2001 until February 2003, Mr. Grady served as a consultant to Brooks. From September 2000 until January 2003, Mr. Grady was a principal at Propel Partners LLC, an investment
firm headquartered in Palo Alto, California. From December 1994 through February 2003, Mr. Grady served in a variety of positions for KLA-Tencor Corp., including Executive Senior Business Advisor from September 2001 until February 2003 and
Executive Group Vice President from March 1998 until September 2001. Prior to joining KLA-Tencor Corp., Mr. Grady was the President and Chief Executive Officer of Hoya Micro Mask. Mr. Grady also currently serves on the board of directors
of the following public companies: Verigy Ltd, Advanced Energy, Inc., and Electro Scientific Industries Inc. Mr. Grady received his MBA from the University of Houston in 1980 and a BS in Engineering from Southern Illinois University in 1972.
Mr. Grady brings to the Board of Directors his experience as a CEO and senior executive at companies in the
semiconductor industry, which uses complex technologies similar to the solar industry, enabling him to provide an important perspective to an emerging industry.
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Non-Director Executive Officers:
Richard G. Chleboski
has served as our Chief Strategy Officer since December 2007. Prior to his current position he served
as Vice President of Worldwide Expansion from February 2006 to December 2007, Treasurer from August 1994 to February 2006 and Secretary from May 2000 to February 2006. Mr. Chleboski served as Chief Financial Officer from August 1994 until
February 2006. From June 1995 until May 2003, Mr. Chleboski served as one of our directors. From July 1987 until February 1994, Mr. Chleboski worked at Mobil Solar Energy Corporation, the solar power subsidiary of Mobil Corporation, where
he was a Strategic Planner from March 1991 until February 1994 and a Process Engineer from 1987 until 1991. Mr. Chleboski received an MBA from Boston College and a BS in Electrical Engineering from the Massachusetts Institute of Technology.
Christian M. Ehrbar
has served as our Vice President, General Counsel and Secretary since December
2010. He took on the role of Secretary in October 2010 after serving as General Counsel and Assistant Secretary since August 2007. Prior to joining the Company, he practiced for ten years as a corporate and securities attorney at several
leading U.S. law firms, most recently at Goodwin Procter LLP, a national firm with a strong focus on emerging technologies and corporate finance transactions. He received his JD
cum laude
from Boston College Law School and his BA in Political
Science from Kenyon College.
Dr. Lawrence Felton
has served as Chief Technology Officer since September
2010 and as Vice President, Science and Engineering from June 2009 to August 2010. Prior to June 2009 he served as Science and Engineering’s Senior Director of Wafer Fabrication from September 2005 to May 2009. Prior to joining Evergreen
Solar, Dr. Felton demonstrated his ability to effectively lead significant projects and divisions at successful and sophisticated technology companies like Analog Devices and Foster-Miller. This work experience and his academic credentials in
materials engineering and chemical engineering prepared him well to take a leadership role in Evergreen Solar’s Science & Engineering department in 2005. Dr. Felton was the Advanced Packaging Development Manager for the
Micromachined Product Division at Analog Devices from March 1997 to September 2005. Dr. Felton was also Senior Project Manager for Foster-Miller from January 1995 to March 1997. Dr. Felton was also Senior Project Manager in the Center
for Manufacturing Productivity and Technology Transfer, and Adjunct Assistant Professor of Materials Engineering at Rensselaer Polytechnic Institute, from June 1991 to January 1995. Dr. Felton received a Ph.D. in Materials Engineering from
Rensselaer Polytechnic Institute and a BS in Chemical Engineering and a MS in Solid State Science and Technology from Syracuse University.
Ian M. Gregory
became Vice President, Marketing in April 2011 after assuming the role of Vice President Marketing and Sales in February 2011. Earlier at the Company, he served as Senior
Director Marketing from December 2009 to January 2011 and Director Product Marketing from June 2006 to November 2009. Mr. Gregory was employed by Shell Solar Industries (a Royal Dutch/Shell company) as Global Product Manager from September
2001 to May 2006 and by Shell Solar BV as New Technology Manager from April 1998 to August 2001. Mr. Gregory received a First Class Masters Degree in Mechanical Engineering (M.Eng.) from the Imperial College of Science, Technology and
Medicine, University of London, UK, in 1996.
Henry Ng
has served as our President and General Manager, Asia
Operations since January 2011 and as Vice President and General Manager, China Manufacturing from April 2010 to December 2010. Prior to his position as Vice President and General Manager, China Manufacturing, he served as our General Manager, Asian
Operations from August 2009 to March 2010. Prior to joining Evergreen Solar, Mr. Ng was General Manager of the Suntech Power Holding Co., Ltd. factory in Wuxi, China from July 2007 to July 2009, where he was responsible for Suntech’s one
gigawatt of cell and panel manufacturing operation and its 10,000 employees. Prior to his leadership roles at Suntech, Mr. Ng served as Senior General Manager for Sony Corporation leading its Blue Ray Optical and Black Light divisions. He held
a number of other senior leadership positions at Sony during his tenure there which began in 1987 and other leading international manufacturing companies like Seagate Technology where he served as Quality Director. Mr. Ng received his BS degree
in Applied Physics from National University of Singapore.
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Gary T. Pollard
has served as Vice President, Human Resources since June 2004.
Prior to joining us, Mr. Pollard worked as an independent consultant for regional and international companies in the high technology, healthcare, pharmaceuticals and food services sectors, developing hiring, recruitment and human resource
programs, and designing benefit plans. From 1996 to 2002, he served as Vice President of Human Resources for The Mentor Network, a Boston-based company, which had 6,000 employees spread across 150 locations in 22 states at the time he left such
company. He was also Vice President of Human Resources for Advantage Health Corporation, and Director of Human Resources for Critical Care America. He has also held positions at Signal Capital Corporation, Martin Marietta Aerospace and General
Electric Information Services. Mr. Pollard received a BA in Economics from Saint Michael’s College.
Donald W.
Reilly
has served as our Chief Financial Officer since January 2011. Previously, he served as a senior financial executive of GTECH Corporation, a wholly owned subsidiary of Lottomatica, SpA since August 2010, as GTECH’s Chief
Financial Officer since June 2007, and in other senior finance positions since 2000. GTECH is a leading gaming technology and services company providing innovative technology, creative content and superior services to worldwide lottery and gaming
organizations. Prior to joining GTECH, Mr. Reilly served as Vice President and Chief Financial Officer of Amtrol, Inc., a global manufacturer of water system solutions and HVAC products, from October 1997 to August 2000. Prior to joining
Amtrol, he was the Corporate Controller and Chief Accounting Officer for A.T. Cross Company. Earlier in his career, Mr. Reilly was an audit Senior Manager at Ernst & Young.
Mr. Reilly received a BS in Accounting from Providence
College and is a Certified Public Accountant.
Peter Rusch
has served as our Vice President Global Sales since
December 2010. He previously held the same role on an interim basis from September 2009 till March 2010. He has been in charge of Evergreen Solar’s sales in EAME since July 2002, and was promoted to Vice President of Sales for Europe, Africa
and the Middle East in March 2010. He assisted in the establishment of Evergreen Solar GmbH, Evergreen Solar’s European sales office in 2004 and has been acting as its Managing Director since that time. While working with Evergreen Solar he
also assisted in the establishment of Sovello and acted as its first CEO. Prior to joining the Company, Mr. Rusch worked in different positions at SOLON AG before becoming an executive at Energiebiss Solartechnik GmbH. Mr. Rusch is a
graduate of Bayreuth University and received his second master’s degree from Ashcroft International Business Center in Cambridge, UK.
Daniel P. Russell
has served as Vice President, World Wide Expansion since January 2011. Prior to his current position he served as the Senior Director of Operations from 2005
to 2010. Prior to joining us, Mr. Russell gained extensive experience in product and process development, technology transfer, and manufacturing operations design, management and optimization. From 1998 to 2004 he held a variety of
engineering and operations leadership roles with Honeywell (Former Invensys Group) including Design Engineering Manager for their Thermal Products Group. Prior to this he was with Texas Instruments for 14 years in Plant Management roles in their
Materials and Controls Group. Mr. Russell received a BS in Ceramic Engineering from Alfred University and a MS in Management from Worcester Polytechnic Institute.
Carl Stegerwald
has served as our Vice President, Construction Management and Facilities Engineering since December 2007. Prior to joining us, Mr. Stegerwald was the sole owner of North
Bridge Properties, LLC, a real estate investment, development and consulting firm that provided project management services to our Devens facility. Prior to working with Evergreen Solar as a consultant and later as an executive, Mr. Stegerwald
held senior positions with Meridian Investment Management and Digital Equipment Corporation, managing all aspects of diverse and significant real estate holdings and facilities management and development. Mr. Stegerwald served as a Senior Vice
President of Meridian and directed its real estate investment and operational activities, including facilities leasing and acquisition and property management, from 1997 to 2006, and was with Meridian’s predecessor from 1996 to 1997. Prior to
that, Mr. Stegerwald served for 17 years in corporate real estate planning,
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acquisition, design and construction with Digital. Mr. Stegerwald received a BS in Civil Engineering from Villanova University and an MBA from Northeastern University.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires our officers, directors and holders of more than 10% of our common stock to file with the SEC initial reports of ownership and reports of
changes in ownership of our common stock. Based solely on our review of the copies of Section 16(a) reports furnished to or written representations made to us, we believe that during 2010 all reporting persons complied with their
Section 16(a) filing requirements, except that, due to administrative oversight, Forms 5 for Dr. Felton and Mr. El-Hillow, reporting shares acquired through Company’s Employee Stock Purchase Plan, were filed one day late.
Code of Business Conduct and Ethics
The Board of Directors has adopted a Code of Business Conduct and Ethics for our Chief Executive Officer, Chief Financial Officer and all other members of management, all directors and all of our
employees and agents. This Code of Ethics is intended to promote the highest standards of honest and ethical conduct throughout our business, full, accurate and timely reporting, and compliance with law, among other things. A copy of the Code of
Business Conduct and Ethics is available under the “Investors” section of our website at
www.evergreensolar.com
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The Code of Business Conduct and Ethics prohibits any waiver from its principles without the prior written consent of the Board of Directors. We intend to post on our website,
www.evergreensolar.com
, in accordance with the rules of the Securities and Exchange Commission any amendment of, and any waiver from, the Code of Business Conduct and Ethics that applies to our Chief Executive Officer, Chief Financial
Officer, or any person performing similar functions.
Audit Committee
The Audit Committee of the Board of Directors, established in accordance with Section 3(a)(58)(A) of the Securities Exchange Act of
1934, as amended, currently consists of Messrs. Cohen (Chair), Cadwell and Grady. Each of the members of the Audit Committee is independent within the meaning of our director independence standards and the applicable standards of Nasdaq and the SEC
for audit committee membership. The Board of Directors has determined that Mr. Cohen is an “audit committee financial expert” under the rules of the SEC.
The Audit Committee met four times during fiscal 2010. The Audit Committee oversees our accounting and financial functions and periodically meets with our management and independent registered public
accounting firm to review internal controls over financial reporting and quarterly and annual financial reports.
The primary
functions of the Audit Committee are to (i) oversee the appointment, compensation and retention of our independent registered public accounting firm and to oversee the work performed by such accountants; (ii) establish policies for finance
and accounting related consulting and advisory work, including but not limited to, tax and internal audit related issues; (iii) assist the Board of Directors in fulfilling its responsibilities by reviewing: (a) the financial reports
provided by us to the SEC, our stockholders or to the general public, and (b) our internal controls over financial reporting; (iv) recommend, establish and monitor procedures designed to improve the quality and reliability of the
disclosure of our financial condition and results of operations; (v) establish procedures designed to facilitate (a) the receipt, retention and treatment of complaints relating to accounting, internal controls over accounting or auditing
matters and (b) the receipt of confidential, anonymous submissions by employees of concerns regarding questionable accounting or auditing matters , and (vi) risk oversight.
The Audit Committee operates under a written charter adopted by the Board of Directors. A current copy of the Audit Committee Charter is
available under the
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“Investors” section of our website at
www.evergreensolar.com
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The charter of the Audit Committee is reviewed on an annual basis by the Audit Committee.
Director Nominations
No
material changes have been made to the procedures by which security holders may recommend nominees to our board of directors. On February 4, 2009, our Board of Directors amended Article I, Section 1.10 of our bylaws. The amendment, among
other things, (i) eliminates the notice as a means to properly bring business before an annual meeting of our stockholders, (ii) further clarifies that the advance notice bylaw provisions apply to all stockholder proposals and nominations
and (iii) requires our stockholders who provide advance notice of proposals or nominations to disclose additional information as part of such notice, including information as to whether the stockholder has entered into any hedging, derivative
or other transactions with respect to securities issued by Evergreen Solar.
ITEM 11. EXECUTIVE COMPENSATION.
COMPENSATION DISCUSSION AND ANALYSIS
Overview
Our executive compensation policies are designed to:
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provide compensation that attracts, motivates and retains experienced and well-qualified executives capable of helping us meet our business objectives;
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recognize and reward performance of our executive officers, both as individuals and as members of a cohesive management team, in meeting certain
strategic objectives;
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align the interests of our executive team with the corporate strategies and our business objectives; and
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align the interests of our executive team with that of stockholders through long-term equity-based incentives.
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Executive Summary
Our executive officers receive a compensation package consisting of base salary, incentive cash bonuses, long-term equity incentive
awards, and participation in benefit plans generally available to all of our employees including 401(k), life, health, disability and dental insurance. We have chosen these elements of compensation to create a flexible package that reflects the
long-term nature of our business and can reward both short and long-term performance of the business and of each executive officer. We also enter into employment agreements with our executive officers, after their first year of employment, that
provide for certain severance benefits upon termination of employment following a change of control of the Company.
In
setting executive officer compensation levels, the Compensation Committee, which is comprised entirely of independent directors, is guided by the following considerations:
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recommendations from the Chief Executive Officer based on individual executive performance and appropriate benchmark data;
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our goal of having a portion of each executive officer’s compensation contingent upon the achievement of specific predetermined corporate
objectives;
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ensuring compensation levels reflect the Company’s past performance and expectations of future performance;
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ensuring compensation levels are competitive with compensation generally being paid to executives we seek to recruit to ensure our ability to attract
and retain experienced and well-qualified executives; and
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ensuring a portion of executive officer compensation is paid in the form of equity-based incentives to closely link stockholder and executive
interests.
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The Compensation Committee sets target and actual compensation for our Chief Executive Officer
using the same considerations it uses for other executive officers.
The Compensation Committee periodically benchmarks all of
the compensation components for our executive officer pay programs with data on individuals in similar positions at other organizations. In 2010, the Compensation Committee continued to use executive compensation consulting company, Pearl
Meyer & Partners (“PM&P”) to provide competitive benchmark data that the Company used to establish pay levels for Evergreen Solar’s executive management team. PM&P was retained by the Compensation Committee.
The Compensation Committee, with assistance from PM&P, develops a peer group of public companies for use in setting
compensation. In 2010 the Committee modified the peer group that it had originally established in 2007 to include the following companies:
|
|
|
|
|
|
|
American Superconductor Corp.
|
|
Analogic Corporation
|
|
ATMI, Inc.
|
|
|
|
|
|
Brooks Automation, Inc.
|
|
Energy Conversion Devices
|
|
GT Solar International, Inc.
|
|
|
|
|
|
Hittite Microwave Corp.
|
|
MKS Instruments, Inc.
|
|
Vicor Corporation
|
The Compensation
Committee, as a matter of practice, will periodically reassess the relevance of the peer group companies and will make changes when appropriate.
Executive Compensation Philosophy
Our executive
compensation philosophy is designed to have strong pay-for-performance features. The Committee therefore believes salaries at the 50
th
percentile are appropriate to deemphasize the importance of base compensation which is primarily determined based on,
and is representative of, past professional experience and success. By contrast, establishing target bonus compensation and equity-based compensation at the 75
th
percentile accomplishes the objective of providing greater incentives for the executive team to accomplish the
Company’s near-term and long-term financial and strategic goals. Accordingly, the Compensation Committee generally adhered to the following precepts in establishing pay for its executive officers based on the comprehensive benchmarking study
prepared by PM&P.
|
|
•
|
|
Establish base salaries at the 50
th
percentile;
|
|
|
•
|
|
Set target total cash compensation at the 75
th
percentile and set corresponding financial goals at the 75
th
percentile of the market consensus amounts developed from a combination of survey and peer group data; and
|
|
|
•
|
|
Set total direct compensation (base salary, bonus and equity) at the 75
th
percentile.
|
The Compensation Committee’s methodology for establishing base compensation levels and incentive compensation
targets in 2010 is consistent with how these compensation levels have been established by the Compensation Committee for at least the past three years, including the applicable percentiles used to set the base compensation levels and incentive
compensation targets. For 2011, the Compensation Committee has reduced the target total cash and target total direct compensation to the 50
th
percentile due to worldwide industry pressures, the strategic changes that the Company has embarked on with its’
wide wafer technology, and to account for the different development stage that the Company is in as compared to the peer group used for benchmarking by the Compensation Committee.
9
Elements of Compensation
Base Salary
Base salaries are used to recognize the experience,
skills, knowledge and responsibilities required of all our employees, including our executive officers. Generally, salary decisions for our executive officers are made in the first quarter of each fiscal year. Base salary, while reviewed annually,
is only adjusted as deemed necessary by the Compensation Committee in determining total compensation. Base salary levels for each of our executive officers, other than the Chief Executive Officer, are set based in part upon evaluations and
recommendations made by the Chief Executive Officer. In addition, the Compensation Committee takes into consideration the benchmarking data presented by PM&P, to generally set the base pay for each of the executive officer.
The fiscal 2010 annual base salaries of our named executive officers were as follows:
|
|
|
|
|
|
|
Name
|
|
2010 Base Salary
|
|
|
Continuing Named Executive Officers
|
|
|
|
|
|
Michael El-Hillow
|
|
$
|
450,000
|
*
|
|
Richard G. Chleboski
|
|
$
|
239,200
|
|
|
Dr. Lawrence Felton
|
|
$
|
275,000
|
|
|
Henry Ng
|
|
$
|
343,000
|
|
|
Former Named Executive Officers**
|
|
|
|
|
|
Richard M. Feldt
|
|
$
|
500,000
|
|
|
Scott Gish
|
|
$
|
250,000
|
|
|
Paul Kawa
|
|
$
|
250,000
|
*
|
|
Dr. Brown F. Williams
|
|
$
|
338,000
|
|
|
*
|
Salaries for Messrs. El-Hillow and Kawa were set at these levels in connection with their respective appointments as President and Chief Executive Officer, and acting
Chief Financial Officer in September 2010. Prior to that time Mr. El-Hillow’s annual salary as CFO was $338,000. Mr. Kawa was not an executive officer before he became acting CFO.
|
|
**
|
Mr. Kawa completed his service as acting Chief Financial Officer in January 2011 when Mr. Reilly became Chief Financial Officer. Mr. Kawa continues to
serve as the Company’s Vice President/Corporate Controller. Messrs. Feldt and Gish and Dr. Williams all left the Company in 2010.
|
Annual base salaries for our executive officers are set by the Compensation Committee and generally take effect in the first quarter of each year. We believe that the base salaries paid to our executive
officers during our fiscal year 2010 meet our executive compensation objectives, compare favourably to our comparator group of companies and, in light of our overall compensation program, are within our target of providing base compensation at the
market median.
Incentive Cash Bonuses
Incentive cash bonuses are designed to reward our executive officers for short-term financial performance and achievement of designated strategic and individual objectives. Therefore, in determining bonus
compensation for our executive officers, the Compensation Committee evaluates the achievement of corporate strategic objectives, generally set on a twice a year basis, as well as the actual performance of each executive officer. For 2010 the
incentive cash plan paid our executive officers on a quarterly basis based on the achievement of the goals set at the
10
beginning of the year and goals set during a mid-year review. Future incentive compensation, if any, may be awarded based on the factors described above as well as any additional factors the
Compensation Committee deems necessary.
We designed our Management Incentive Plan to focus our executives on achieving key
corporate operational and financial objectives, and to reward substantial achievement of these objectives, as well as to achieve additional individual, strategic and tactical objectives. The criteria selected linked the incentive compensation to the
achievements of measurable corporate performance objectives. The following table sets forth the annual target incentive amounts under our Management Incentive Plan for each of our named executive officers (for 2010) as a percentage of base salary
and the actual amounts paid based on performance in 2010.
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Target Annual
Bonus (1)
|
|
|
Actual 2010
Bonus
(2)
|
|
|
Continuing Named Executive Officers
|
|
|
|
|
|
|
|
|
|
Michael El-Hillow
|
|
|
75%
|
|
|
$
|
227,243
|
|
|
Richard G. Chleboski
|
|
|
75%
|
|
|
$
|
122,548
|
|
|
Dr. Lawrence Felton
|
|
|
75%
|
|
|
$
|
140,888
|
|
|
Henry Ng
|
|
|
50 – 60%
|
|
|
$
|
129,929
|
|
|
Former Named Executive Officers
|
|
|
|
|
|
|
|
|
|
Richard M. Feldt
|
|
|
100%
|
|
|
$
|
341,543
|
|
|
Scott Gish
|
|
|
75%
|
|
|
$
|
104,168
|
|
|
Paul Kawa
|
|
|
50 – 75%
|
|
|
$
|
96,693
|
|
|
Dr. Brown F. Williams
|
|
|
75%
|
|
|
$
|
173,166
|
|
|
(1)
|
Mr. Kawa’s and Mr. Ng’s percentage target bonus each changed from 50% to 75% and 50% to 60%, respectively, in September 2010.
|
|
(2)
|
Bonus awards earned for the fourth quarter of 2010 were not paid to any named executive officers other than Mr. Kawa. Mr. Kawa’s total includes fourth
quarter bonus earned in 2010 but paid in 2011.
|
Target cash bonus percentages were initially set in February
2008, and remained constant in 2010, at levels the Compensation Committee determined were appropriate in order to achieve our objective of retaining those executives who perform at or above the levels necessary for us to achieve our business plan,
which, among other things, involves growing our Company in a cost-effective way. Under our Management Incentive Plan, the Compensation Committee may award amounts in excess of or below the target bonus awards to all of our named executive officers.
For 2010, the Compensation Committee established that the Management Incentive Plan would focus on the following
corporate-wide objectives:
These
objectives were the same for each executive officer and the Compensation Committee determined that these objectives were the best indicators of the progress that the Company has made in advancing its growth objectives. For 2010, payment of 100% of
the target bonus payout was dependent upon attainment of specified levels of the above objectives. The tables below detail the objectives for each quarter of 2010, a target goal for each objective and
11
the impact that performance below and above that target goal would have on each executive officer’s award, and the actual results for each quarter.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PLAN
|
|
|
|
|
Q1
|
|
|
Q2
|
|
|
|
|
|
Q3
|
|
|
Q4
|
|
|
|
|
|
|
|
Goal
|
|
|
Bonus
Percent
|
|
|
Goal
|
|
|
Bonus
Percent
|
|
|
|
|
|
Goal
|
|
|
Bonus
Percent
|
|
|
Goal
|
|
|
Bonus
Percent
|
|
|
Annual
Bonus
Percent
|
|
|
Output (W in 000)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
35,000
|
|
|
|
10.00
|
%
|
|
|
40,000
|
|
|
|
5.00
|
%
|
|
|
|
|
|
|
46,830
|
|
|
|
17.50
|
%
|
|
|
56,430
|
|
|
|
20.00
|
%
|
|
|
52.50
|
%
|
|
Plan
|
|
|
33,500
|
|
|
|
7.50
|
%
|
|
|
37,500
|
|
|
|
5.00
|
%
|
|
|
|
|
|
|
44,600
|
|
|
|
15.00
|
%
|
|
|
51,300
|
|
|
|
17.50
|
%
|
|
|
45.00
|
%
|
|
Minimum
|
|
|
32,000
|
|
|
|
5.00
|
%
|
|
|
35,000
|
|
|
|
2.50
|
%
|
|
|
|
|
|
|
42,370
|
|
|
|
7.50
|
%
|
|
|
48,735
|
|
|
|
12.50
|
%
|
|
|
27.50
|
%
|
|
Cost per watt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
$
|
1.95
|
|
|
|
17.50
|
%
|
|
$
|
1.85
|
|
|
|
15.00
|
%
|
|
|
|
|
|
$
|
1.80
|
|
|
|
15.00
|
%
|
|
$
|
1.78
|
|
|
|
12.50
|
%
|
|
|
60.00
|
%
|
|
Plan
|
|
$
|
2.05
|
|
|
|
15.00
|
%
|
|
$
|
1.97
|
|
|
|
12.50
|
%
|
|
|
|
|
|
$
|
1.90
|
|
|
|
10.00
|
%
|
|
$
|
1.88
|
|
|
|
7.50
|
%
|
|
|
45.00
|
%
|
|
Minimum
|
|
$
|
2.15
|
|
|
|
7.50
|
%
|
|
$
|
2.10
|
|
|
|
5.00
|
%
|
|
|
|
|
|
$
|
2.05
|
|
|
|
5.00
|
%
|
|
$
|
2.00
|
|
|
|
3.75
|
%
|
|
|
21.25
|
%
|
|
China Factory Cost - Cumulative (000)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
45,000
|
|
|
|
12.50
|
%
|
|
|
12.50
|
%
|
|
Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
10.00
|
%
|
|
|
10.00
|
%
|
|
Minimum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
55,000
|
|
|
|
1.25
|
%
|
|
|
1.25
|
%
|
|
Total Bonus Potential Percentage
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Maximum
|
|
|
|
|
|
|
27.50
|
%
|
|
|
|
|
|
|
20.00
|
%
|
|
|
|
|
|
|
|
|
|
|
32.50
|
%
|
|
|
|
|
|
|
45.00
|
%
|
|
|
125.00
|
%
|
|
Plan
|
|
|
|
|
|
|
22.50
|
%
|
|
|
|
|
|
|
17.50
|
%
|
|
|
|
|
|
|
|
|
|
|
25.00
|
%
|
|
|
|
|
|
|
35.00
|
%
|
|
|
100.00
|
%
|
|
Minimum
|
|
|
|
|
|
|
12.50
|
%
|
|
|
|
|
|
|
7.50
|
%
|
|
|
|
|
|
|
|
|
|
|
12.50
|
%
|
|
|
|
|
|
|
17.50
|
%
|
|
|
50.00
|
%
|
|
Maximum Operating Expenses To Receive any Bonus
|
|
$
|
24,530
|
|
|
|
|
|
|
$
|
27,280
|
|
|
|
|
|
|
|
|
|
|
$
|
26,070
|
|
|
|
|
|
|
$
|
22,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ACTUAL RESULTS
|
|
|
Output (W in 000)
|
|
|
33,778
|
|
|
|
7.96
|
%
|
|
|
39,320
|
|
|
|
5.00
|
%
|
|
|
|
|
|
|
45,465
|
|
|
|
15.97
|
%
|
|
|
53,550
|
|
|
|
18.60
|
%
|
|
|
47.53
|
%
|
|
Cost per watt
|
|
$
|
2.04
|
|
|
|
15.25
|
%
|
|
$
|
1.94
|
|
|
|
13.13
|
%
|
|
|
|
|
|
$
|
1.88
|
|
|
|
11.00
|
%
|
|
$
|
1.92
|
|
|
|
6.25
|
%
|
|
|
45.63
|
%
|
|
China Factory Cost - Cumulative (000)
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
0.00
|
%
|
|
|
0.00
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.21
|
%
|
|
|
|
|
|
|
18.13
|
%
|
|
|
|
|
|
|
|
|
|
|
26.97
|
%
|
|
|
|
|
|
|
24.85
|
%
|
|
|
93.16
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cumulative earned
|
|
|
|
|
|
|
23.21
|
%
|
|
|
|
|
|
|
41.34
|
%
|
|
|
|
|
|
|
|
|
|
|
68.31
|
%
|
|
|
|
|
|
|
93.16
|
%
|
|
|
|
|
|
Actual Operating Expenses (1)
|
|
$
|
20,139
|
|
|
|
|
|
|
$
|
22,706
|
|
|
|
|
|
|
|
|
|
|
$
|
22,818
|
|
|
|
|
|
|
$
|
21,095
|
|
|
|
|
|
|
|
|
|
|
(1)
|
Excludes extraordinary operating expenses
|
Further details about our Management Incentive Plan and the payments made to our named executive officers in 2010 are provided below in the “Summary Compensation Table” and “Grants of
Plan-Based Awards” tables and the footnotes to each table.
Long-Term Equity Incentive Awards
Equity-based compensation and ownership ensures that our executive officers have a continuing stake in the long-term success of the
Company. The Compensation Committee believes that equity award participation aligns the interests of executive officers with those of the stockholders. In addition, the Compensation Committee believes that equity ownership by executive officers
helps to balance the short-term focus of annual incentive compensation with a longer term view and may help to retain such persons. Long-term equity incentive compensation, in the form of restricted stock awards, allows executive officers to share
in any appreciation in the value of our common stock, while encouraging executive officers to remain with the Company and promote the Company’s success. When establishing equity award grant levels, the Compensation Committee considers general
corporate performance, individual performance, the Chief Executive Officer’s recommendations (except with respect to the Chief Executive Officer’s own equity award grant levels), level of seniority and experience, the current stock price
and a number of other factors.
12
Consistent with our target compensation objectives described above, including the overall
compensation objective of providing total direct compensation in the 75th percentile for executives who are performing at expected levels, in July 2010, our Named Executive Officers received restricted stock awards as indicated below:
|
|
|
|
|
|
|
Name
|
|
Restricted Stock
Award Shares
|
|
|
Continuing Named Executive Officers
|
|
|
|
|
|
Michael El-Hillow
|
|
|
33,334
|
|
|
Richard G. Chleboski
|
|
|
8,334
|
|
|
Dr. Lawrence Felton
|
|
|
16,667
|
|
|
Henry Ng
|
|
|
8,334
|
|
|
Former Named Executive Officers
|
|
|
|
|
|
Richard M. Feldt
|
|
|
104,166
|
*
|
|
Paul Kawa
|
|
|
5,834
|
|
|
Dr. Brown F. Williams
|
|
|
8,334
|
|
|
*
|
Mr. Feldt’s grant included 20,833 of performance based shares.
|
In addition, Mr. Ng and Mr. Gish both received grants in 2010 for joining the Company, as indicated below:
|
|
|
|
|
|
|
|
|
|
|
Name
|
|
Restricted Stock
Award Shares
|
|
|
Stock Option
Award Shares
|
|
|
Continuing Named Executive Officers
|
|
|
|
|
|
|
|
|
|
Henry Ng
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|
|
12,500
|
|
|
|
20,833
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|
|
Former Named Executive Officers
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|
|
|
|
|
|
|
|
|
Scott Gish
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|
|
12,500
|
|
|
|
20,833
|
|
All of our time-based
restricted stock grants, including those made to the named executive officers in 2010, vest in four equal annual installments over the four year period following the grant date.
In February 2006 and 2007, our executive officers were granted performance-based restricted stock awards which vest 100% upon the
achievement of certain financial objectives within a fiscal year, including certain levels of: (a) revenue, (b) gross margin and (c) net income. These awards were established to reward our executive officers for the attainment of
ambitious performance objectives. All of the 2006 performance-based restricted shares have since been reacquired by the Company as a result of employee terminations and expiration of the performance period. At the present time the Company believes
that it is highly unlikely that the performance criteria associated with the 2007 performance-based stock awards will be achieved and, accordingly, does not expect such shares to vest. The 2007 performance-based restricted stock awards will
therefore expire on January 1, 2012. Further details about the equity awards held by our Chief Executive Officer and other executive officers are provided below in the “Summary Compensation Table”, “Grants of Plan-Based
Awards”, “Outstanding Equity Awards at Fiscal Year-End”, and “Option Exercises and Stock Vested” tables and the footnotes to each table.
13
Other Compensation
We also offer various broad-based employee benefit plans. Executive officers participate in these plans on the same terms as eligible, non-executive employees, subject to any legal limits on the amounts
that may be contributed or paid to executive officers under these plans. We offer a stock purchase plan, under which employees may purchase shares of the Company’s common stock at a discount, and offer a 401(k) Plan, which allows employees to
invest in a wide array of funds on a pre-tax basis. We also have change of control agreements with some of our executive officers providing for certain benefits which may be triggered upon a change of control and as a result of the termination of
such officer’s employment following a change of control under certain circumstances. We offer no perquisites to our executive officers that are not otherwise available to all of our employees.
Executive Change of Control Severance Agreements and Other Agreements
In 2007, we entered into change of control severance agreements with each of our then serving executive officers. These agreements have been extended to all of our current executive officers other than
Mr. Reilly, our current CFO, who will receive one after his first year of service. We believe these agreements enable us to retain executive officers during times of unforeseen events when the executive’s future is uncertain but continued
employment of the executive may be in the best interest of the Company. We periodically review the prevalence of severance and change-of control agreements among executives for our peer group companies as well as the provisions of such agreements to
benchmark the competitiveness of the Company’s agreements. Specifically, we reviewed the cash severance multiple, equity vesting provisions, benefit continuation practices, excise tax gross-up prevalence, and the length of the protection period
in the event of a change of control. Based upon our review, we believe our agreements are generally consistent with those of our peer group companies.
Equity Provisions
Our agreement with Mr. Feldt, our former CEO,
provided that, if we experienced a change of control, (i) all of Mr. Feldt’s outstanding equity awards would have immediately vested and become exercisable or have been released from the Company’s repurchase or reacquisition right, and
(ii) all of the performance targets for all Mr. Feldt’s performance-based equity awards would have been deemed fully achieved. The agreements with our other current and former executive officers (Messrs. El-Hillow, Chleboski, Gish and Williams,
but not Messrs. Kawa or Ng) provide, or in the case of former executives provided, that upon a change of control: (i) all of the employee’s outstanding equity awards would immediately vest and become exercisable or released from the
Company’s repurchase or reacquisition right as to (A) that number of unvested shares that would have vested during the period between the equity awards’ most recent vesting date (or the grant date, if no vesting date has been reached) and
the change of control as if the equity awards had been granted with a monthly vesting schedule and (B) that number of unvested shares that would have otherwise vested during the last twelve months of each equity awards’ vesting schedule, and
(ii) all performance targets for the executive officer’s performance-based equity awards would be deemed fully achieved on the first anniversary of the change of control if the employee were employed on such date.
Cash Severance and Continued Benefits
Each change of control severance agreement also provides severance benefits. If any executive officer’s employment is terminated without cause within twelve months of a change of control, or if an
executive officer terminates his employment for certain reasons including a substantial reduction in salary or geographic movement within twelve months of a change of control, that executive officer will receive continued payment of his base salary
and health benefits for twelve months and his target bonus amount for the year of termination. Payment of the severance benefits under the change of control severance agreements will be delayed as required by Section 409A of the Internal
Revenue Code (the “Code”).
In the event that the severance and other benefits provided for in the change of control
severance agreement with Mr. El-Hillow constitutes “parachute payments” within the meaning of Section 280G of the Code and would be subject to the excise tax imposed by Section 4999 of the Code, the executive will receive
(i) a payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes arising from the payments
made to the employee by the Company. Messrs. Feldt and Williams had the benefit of the same terms as Mr. El-Hillow under their change of control severance agreements before their departure from the Company. In the event that the severance and other
benefits provided Messrs. Felton and Chleboski constitute “parachute payments” within the meaning of Section 280G of the Code and would be subject to the excise tax imposed by Section 4999 of the Code, such employee’s
benefits under the Agreement shall be either delivered in full or delivered as to such lesser extent which would result in no portion of such benefits being subject to the excise tax, whichever results in the receipt by the employee, on an after-tax
basis, of the greatest amount of benefits. Mr. Gish had the benefit of the same terms as Messrs. Chleboski and Felton under his change of control severance agreements before his departure from the Company.
See “Potential Benefits upon Change of Control or Termination following a Change of Control” below for more details regarding
severance benefits provided to our named executive officers.
14
Tax Deductibility and Accounting Considerations
In general, under Section 162(m) of the Code, we cannot deduct, for federal income tax purposes, compensation in excess of $1,000,000
paid to certain executive officers. This deduction limitation does not apply, however, to compensation that constitutes “qualified performance-based compensation” within the meaning of Section 162(m) of the Code and the regulations
promulgated there under. The Compensation Committee considers the limitations on deductions imposed by Section 162(m) of the Code, and it is the Compensation Committee’s present intention that, for so long as it is consistent with its
overall compensation objectives, executive compensation paid will not be subject to the deduction limitations of Section 162(m) of the Code. The Compensation Committee also considers the impact of accounting for the various elements of
compensation when determining executive compensation.
The Compensation Committee also takes into consideration the Company
Stock Ownership Guidelines which are intended to encourage executive officers to have a portion of their personal wealth tied to the Company’s share value.
REPORT OF THE COMPENSATION COMMITTEE OF THE BOARD OF DIRECTORS
The
Compensation Committee has reviewed and discussed with management the foregoing Compensation Discussion and Analysis for the year ended December 31, 2010 that precedes this report (the “CD&A”). In reliance on its reviews and
discussions, the compensation committee recommended to the Board of Directors, and the Board of Directors has approved, that the inclusion of the CD&A in the Company’s Annual Report on Form 10-K for the year ended December 31, 2010 for
filing with the SEC.
No portion of this Compensation Committee Report shall be deemed to be incorporated by reference into
any filing under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, through any general statement incorporating by reference in its entirety the Annual Report of Form 10-K in which this report appears, except
to the extent that the Company specifically incorporates this report or a portion of it by reference. In addition, this report shall not be deemed filed under either the Securities Act or the Exchange Act.
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Respectfully submitted by the Compensation Committee,
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THE COMPENSATION COMMITTEE
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Dr. Peter W. Cowden (Chair)
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Edward C. Grady
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Allan H. Cohen
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Compensation Committee Interlocks and Insider Participation
No current
member of the Compensation Committee or person who was a member of such committee at any time during the last fiscal year was at any time during the year an officer or employee of the Company (or any of its subsidiaries), was formerly an officer of
the Company (or any of its subsidiaries), or had any relationship with the Company requiring disclosure herein. The Compensation Committee operates under a written charter adopted by the Board of Directors setting out the functions the Compensation
Committee is to perform.
During the last fiscal year, none of our executive officers served as (i) a member of the
compensation committee (or other committee of the Board of Directors performing equivalent functions or, in the absence of any such committee, the entire Board of Directors) of another entity, one of whose executive officers served on our
Compensation Committee; (ii) a director of another entity, one of whose executive officers served on our Compensation Committee; or (iii) a member of the compensation committee (or other committee of the Board of Directors performing
equivalent functions or, in the absence of any such committee, the entire Board of Directors) of another entity, one of whose executive officers served as a director of our Board of Directors.
15
Summary Compensation Table
The following table sets forth the annual and long-term compensation of our Chief Executive Officer, our Chief Financial officer, each of our three other most highly compensated executive officers who
were serving as executive officers as of December 31, 2010, and two of our other highly compensated executive officers for whom disclosure would have been provided but for the fact they were not serving as executive officers as of
December 31, 2010 (collectively, the “Named Executive Officers”).
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(a)
Name and Principal Position(s)
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(b)
Year
|
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|
(c)
Salary
($)(1)
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|
(d)
Bonus ($)
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(e)
Stock Awards
($)(3)(4)(5)(6)
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(f)
Option
Grants
($)(6)
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|
(g)
Non-Equity
Incentive Plan
Compensation
($)(2)
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(i)
All Other
Compensation
($)(7)(8)
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Total
($)
|
|
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Michael El-Hillow,
Chief Executive Officer, President and Director
|
|
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2010
2009
2008
|
|
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|
382,885
352,300
351,900
|
|
|
|
—
—
—
|
|
|
|
144,000
161,820
311,200
|
|
|
|
—
202,492
—
|
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227,243
253,500
168,578
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750
750
57,360
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754,878
970,862
889,038
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Paul Kawa,
Interim Chief Financial Officer and Corporate Controller
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2010
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209,199
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|
|
|
—
|
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25,200
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|
|
—
|
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|
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96,693
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|
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750
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331,842
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|
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|
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|
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|
|
|
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Richard G. Chleboski,
Chief Strategy Officer
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2010
2009
2008
|
|
|
|
239,200
236,900
244,331
|
|
|
|
—
—
—
|
|
|
|
36,000
107,880
130,315
|
|
|
|
—
132,940
—
|
|
|
|
122,548
162,357
119,301
|
|
|
|
750
750
750
|
|
|
|
398,498
640,827
494,697
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|
|
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|
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Dr. Lawrence Felton,
Chief Technology Officer
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2010
2009
2008
|
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|
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273,077
189,471
179,624
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|
|
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—
—
—
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|
|
|
72,000
63,310
103,000
|
|
|
|
—
56,104
—
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|
|
|
140,888
156,933
58,184
|
|
|
|
—
—
—
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485,965
465,818
340,808
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|
|
|
|
|
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Henry Ng,
President and General Manager, Asia Operations
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2010
2009
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|
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313,865
82,443
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|
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—
—
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125,250
—
|
|
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133,950
—
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|
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129,929
41,266
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|
|
|
—
—
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702,994
123,709
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Richard M. Feldt,
Chief Executive Officer, President and Chairman of the Board of Directors
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2010
2009
2008
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446,154
527,885
507,692
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|
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—
—
—
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450,000
344,100
778,000
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|
|
—
440,200
—
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|
|
|
341,543
479,990
332,494
|
|
|
|
—
—
—
|
|
|
|
1,237,697
1,792,175
1,618,186
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|
|
|
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|
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Scott Gish,
Vice President, Sales and Marketing
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2010
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220,673
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|
|
|
—
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95,250
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|
|
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142,875
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|
|
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104,168
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|
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119,934
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682,900
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|
|
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Dr. Brown F. Williams,
Chief Technology Officer
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2010
2009
2008
|
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360,100
317,850
336,500
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|
|
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—
—
—
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36,000
161,820
311,200
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|
|
|
—
202,492
—
|
|
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173,166
223,080
168,578
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|
|
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750
750
750
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570,016
905,992
817,028
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(1)
|
Salaries for certain named executive officers include amounts paid in lieu of paid time off per a Company policy that allows any employees to cash out paid time off in
light of a busier than usual workload during the year. The base salary in 2009 for each named executive officer was reduced by a 10% company-wide pay reduction that was in effect from April through October of 2009.
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(2)
|
Represents bonuses earned during the fiscal year and paid in the following fiscal year, except for 2010 in which the bonus was paid quarterly through
September 2010. The fourth quarter was paid in 2011 only for Mr. Kawa. In 2009, Mr. Feldt received $65,000 of his bonus based on the accomplishment of four individual objectives, including raising capital, finalizing a subcontract
arrangement in China, achieving key manufacturing operating metrics and managing matters involving Sovello; Mr. El-Hillow received $43,095 of his bonus based on the accomplishment of four individual objectives, including raising capital,
finalizing a subcontract arrangement in China, assuming responsibility for and managing the Devens noise problem, and accomplishing key objectives in his new additional role as Chief Operations Officer; Mr. Chleboski received $13,455 of his
bonus based on the accomplishment of three individual objectives, including developing a cell and panel expansion strategy, developing Evergreen’s downstream integration strategy and managing matters involving Sovello; Dr. Felton
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16
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|
received $16,875 of his bonus based on the accomplishment of four individual objectives, including completion of pilot production for the Midland factory, design completion of the Quad furnace
for the China wafer facility, development of multiwire and accomplishment of manufacturing yield and efficiency targets; and Dr. Williams received $12,675 of his bonus based on the accomplishment of one individual objective, namely
establishment of a plan to implement multiwire production in China. Note in prior years presentations the bonus was presented in column d.
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(3)
|
We did not grant any stock appreciation rights or make any long-term incentive plan payouts to the Named Executive Officers during Fiscal 2010.
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(4)
|
Mr. Ng’s 2010 restricted stock awards and option grants of 12,500 and 20,833, respectively were granted for his joining the Company in 2009 but granted in
March 2010. In addition Mr. Ng received an annual performance grant in July 2010 of 8,334 shares. Mr. Gish’s 2010 restricted stock awards and option grants of 12,500 and 20,833 respectively were granted upon his joining the Company
(which were cancelled upon his termination on December 13, 2010). Dr. Felton’s 2009 restricted stock awards and option grants each include 4,167 shares which were granted at the time of his promotion to Vice President, Science and
Engineering, on June 8, 2009.
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(5)
|
The stock awards include grants to the Named Executive Officers based on performance for the year ended December 31, 2009, but awarded in 2010. Mr. El-Hillow
received a restricted stock grant of 33,334 shares, Mr. Feldt received a restricted stock grant of 83,333 shares and a performance stock grant of 20,833 shares (which were both cancelled upon his termination on October 1, 2010).
Mr. Kawa received restricted stock grants of 5,834, Mr. Chleboski, Mr. Ng and Mr. Williams each received restricted stock grants of 8,334, and Mr Felton received restricted stock grants of 16,667. These restricted shares vest
over four years with a starting vesting date of March 1, 2010.
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(6)
|
See Note 11 of our consolidated financial statements for further information on the valuation of equity awards.
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(7)
|
Mr. El-Hillow received $56,610 during fiscal 2008 for relocation fees as part of his commencement of employment with the Company. Mr. Gish received $119,184
during fiscal year 2010 for relocation fees as part of his commencement of employment with the Company. No Named Executive Officers received any other perquisites or other personal benefits in excess of $10,000 during fiscal 2008, 2009 or 2010. The
compensation described in this table does not include medical, group life insurance and other benefits received by the Named Executive Officers which are available generally to all of our salaried employees.
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(8)
|
Amounts for Messrs. El-Hillow (2008, 2009 and 2010), Chleboski (2008, 2009 and 2010), Kawa (2010) and Williams (2008, 2009 and 2010) include matching contributions
to the 401(k) plan account of the Named Executive Officer.
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17
Grants of Plan-Based Awards
The following table sets forth information regarding all equity based incentive plan awards that were made to the Named Executive Officers
during fiscal 2010.
Grants of Plan-Based Awards for
Fiscal Year Ended December 31, 2010
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|
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|
|
|
|
(a)
Name
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|
(b)
Grant
Date
|
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(c)
|
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(d)
|
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(e)
|
|
|
(i)
All Other Stock
Awards:
Number of
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(l)
Grant Date/Fair
|
|
|
|
|
Estimated Future
Payouts
Under Equity Incentive Plan Awards (3)
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|
Shares of Stock
or Units
(#)(1)(2)
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|
Value of Stock and
Option Awards
($)(3)
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Threshold
(#)
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Target
(#)
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Maximum
(#)
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|
|
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|
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Michael El-Hillow
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|
7/27/2010
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|
—
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|
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—
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|
|
—
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|
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33,334
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144,000
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Paul Kawa
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7/27/2010
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|
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—
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|
|
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—
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|
—
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5,834
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25,200
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Richard G. Chleboski
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7/27/2010
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|
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—
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|
|
|
—
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|
|
|
—
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|
|
|
8,334
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|
|
|
36,000
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Dr. Lawrence Felton
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|
7/27/2010
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|
|
|
—
|
|
|
|
—
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|
|
|
—
|
|
|
|
16,667
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|
|
|
72,000
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Henry Ng
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3/25/2010
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|
|
—
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|
|
|
—
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|
|
—
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|
|
|
33,333
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223,200
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Henry Ng
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|
7/27/2010
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|
|
—
|
|
|
|
—
|
|
|
|
—
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|
|
|
8,334
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|
|
|
36,000
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|
|
Richard M. Feldt
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|
7/27/2010
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|
|
|
—
|
|
|
|
20,833
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|
|
|
—
|
|
|
|
83,333
|
|
|
|
450,000
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|
|
Scott Gish
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|
2/22/2010
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|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
33,333
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|
|
|
238,125
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|
|
Dr. Brown F. Williams
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|
7/27/2010
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|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
8,334
|
|
|
|
36,000
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|
|
(1)
|
Mr. El-Hillow received restricted stock grants of 33,334 shares, Mr. Feldt received restricted stock grants of 83,333 shares, Mr. Kawa received
restricted stock grants of 5,834 shares, Mr. Chleboski and Dr. Williams received restricted stock grants of 8,334 shares each, Dr. Felton received restricted stock grants of 16,667 shares, Mr. Ng received restricted stock grants
of 20,834 shares and Mr. Gish received restricted stock grants of 12,500 shares (which were cancelled upon his termination on December 13, 2010). These restricted stock grants vest over four years.
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|
(2)
|
Mr. Ng and Mr. Gish received stock option awards of 20,833 shares each. These option awards vest over four years. Mr. Gish’s grants were canceled
upon his termination on December 13, 2010.
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|
(3)
|
Mr. Feldt received a performance grant of 20,833 shares. The grant would vest in two equal installments upon the attainment of an average per share closing price
for the Company’s common stock over any 30 consecutive trading days of $3.00 following the grant date and the attainment of an average per share closing price for the Company’s common stock over any 30 consecutive trading day of $5.00
following the grant date. The grant was canceled upon Mr. Feldt’s termination on October 1, 2010
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(4)
|
Grant date value is used for the valuation of all restricted stock awards. The stock option awards are valued using the Black-Scholes method.
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18
Outstanding Equity Awards at Fiscal Year-End
The following table sets forth all outstanding equity awards as of December 31, 2010 held by our Named Executive Officers. Options
vest equally over a four year period and have an expiration date of 10 years from grant date. Neither of Messrs. Feldt or Gish held any equity awards as of December 31, 2010.
OUTSTANDING EQUITY AWARDS AT FISCAL 2010 YEAR END
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Options
|
|
|
Stock Awards
|
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|
Name
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
|
|
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
|
|
|
Equity
Incentive
Plan
Awards:
Number
of
Securities
Underlying
Unexercised
Unearned
Options (#)
|
|
|
Option
Exercise
Price
($)
|
|
|
Option
Expiration
Date
|
|
|
Number of
Shares or
Units of
Stock That
Have Not
Vested
(#)(2)
|
|
|
Market Value
of Share or
Units of Stock
That Have
Not
Vested
($)
|
|
|
Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares, Units
or
Other
Rights That
Have Not
Vested
(#)(1)
|
|
|
Equity
Incentive Plan
Awards:
Market or
Payout Value
of Unearned
Shares, Units
or
Other
Rights That
Have Not
Vested
($)
|
|
|
Michael El-Hillow
|
|
|
1,032
|
|
|
|
—
|
|
|
|
|
|
|
|
39.06
|
|
|
|
7/14/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
625
|
|
|
|
—
|
|
|
|
|
|
|
|
68.64
|
|
|
|
12/7/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,250
|
|
|
|
—
|
|
|
|
|
|
|
|
74.52
|
|
|
|
6/7/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
833
|
|
|
|
—
|
|
|
|
|
|
|
|
74.52
|
|
|
|
6/7/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,792
|
|
|
|
14,375
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/1/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,333
|
|
|
|
28,999
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
|
|
11,599
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,875
|
|
|
|
37,845
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33,334
|
|
|
|
116,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,667
|
|
|
|
58,001
|
|
|
Paul Kawa
|
|
|
334
|
|
|
|
999
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/1/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
625
|
|
|
|
2,175
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
308
|
|
|
|
1,072
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
937
|
|
|
|
3,261
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,834
|
|
|
|
20,302
|
|
|
|
|
|
|
|
|
|
|
Richard G. Chleboski
|
|
|
2,500
|
|
|
|
|
|
|
|
|
|
|
|
15.54
|
|
|
|
12/7/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35,833
|
|
|
|
|
|
|
|
|
|
|
|
12.00
|
|
|
|
11/17/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,333
|
|
|
|
|
|
|
|
|
|
|
|
43.80
|
|
|
|
3/3/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,667
|
|
|
|
|
|
|
|
|
|
|
|
90.54
|
|
|
|
2/24/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,146
|
|
|
|
9,437
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/1/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
833
|
|
|
|
2,899
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,396
|
|
|
|
4,858
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,250
|
|
|
|
25,230
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,334
|
|
|
|
29,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,667
|
|
|
|
58,001
|
|
|
Dr. Lawrence Felton
|
|
|
6,667
|
|
|
|
—
|
|
|
|
|
|
|
|
48.00
|
|
|
|
9/26/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
355
|
|
|
|
1,062
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/1/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,042
|
|
|
|
3,125
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/8/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
312
|
|
|
|
1,086
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
833
|
|
|
|
2,899
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,062
|
|
|
|
3,696
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,125
|
|
|
|
10,875
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,667
|
|
|
|
58,001
|
|
|
|
|
|
|
|
|
|
|
Henry Ng
|
|
|
5,208
|
|
|
|
15,625
|
|
|
|
|
|
|
|
7.14
|
|
|
|
3/25/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,334
|
|
|
|
29,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,375
|
|
|
|
32,625
|
|
|
|
|
|
|
|
|
|
|
Dr. Brown F. Williams
|
|
|
167
|
|
|
|
|
|
|
|
|
|
|
|
60.00
|
|
|
|
2/15/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167
|
|
|
|
|
|
|
|
|
|
|
|
60.00
|
|
|
|
2/16/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167
|
|
|
|
|
|
|
|
|
|
|
|
66.24
|
|
|
|
4/18/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167
|
|
|
|
|
|
|
|
|
|
|
|
75.90
|
|
|
|
5/31/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
167
|
|
|
|
|
|
|
|
|
|
|
|
45.54
|
|
|
|
7/25/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
333
|
|
|
|
|
|
|
|
|
|
|
|
30.00
|
|
|
|
9/5/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,667
|
|
|
|
|
|
|
|
|
|
|
|
20.16
|
|
|
|
11/11/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
|
|
|
|
|
|
|
|
|
|
43.80
|
|
|
|
3/3/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,833
|
|
|
|
|
|
|
|
|
|
|
|
90.54
|
|
|
|
2/24/2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,792
|
|
|
|
14,375
|
|
|
|
|
|
|
|
13.44
|
|
|
|
6/1/2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,041
|
|
|
|
3,623
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,333
|
|
|
|
11,599
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,875
|
|
|
|
37,845
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,334
|
|
|
|
29,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,667
|
|
|
|
58,001
|
|
19
|
(1)
|
Represents performance-based restricted stock awards under the 2000 Plan granted February 12, 2007. The shares are subject to performance vesting conditions. The
shares for fiscal 2007 will vest only upon the achievement of all of the following accomplishments within a calendar year by December 31, 2011: (a) $400 million in revenue, (b) 35% gross margin and (c) 10% net income, as adjusted
by the plan. All amounts will include our pro rata share of any joint venture operating results. At the present time we believe that it is unlikely that the performance criteria for these performance-based stock awards will be achieved and,
accordingly, do not expect such shares to vest. For purposes of this table, the performance based awards are valued based upon our closing stock price on December 31, 2010 ($3.48).
|
|
(2)
|
These restricted stock grants vest over four years.
|
Options Exercises and Stock Vested
The following table sets forth all
stock options that were exercised or restricted stock awards that vested in fiscal 2010, including the value realized upon exercise or vesting.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
Stock Awards
|
|
|
Name of Executive Officer
|
|
Number of
Shares
Acquired on
Exercise
(#)
|
|
|
Value
Realized on
Exercise
($)
|
|
|
Number of
Shares
Acquired
on
Vesting
`(#)
|
|
|
Value
Realized on
Vesting
($)
|
|
|
Michael El-Hillow (1)
|
|
|
167
|
|
|
|
135
|
|
|
|
13,625
|
|
|
|
96,460
|
|
|
Paul Kawa
|
|
|
—
|
|
|
|
—
|
|
|
|
1,093
|
|
|
|
7,934
|
|
|
Richard G. Chleboski
|
|
|
—
|
|
|
|
—
|
|
|
|
3,948
|
|
|
|
27,467
|
|
|
Dr. Lawrence Felton (1)
|
|
|
167
|
|
|
|
135
|
|
|
|
2,188
|
|
|
|
15,187
|
|
|
Henry Ng
|
|
|
—
|
|
|
|
—
|
|
|
|
3,125
|
|
|
|
12,156
|
|
|
Richard M. Feldt
|
|
|
—
|
|
|
|
—
|
|
|
|
13,959
|
|
|
|
98,180
|
|
|
Scott Gish
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Dr. Brown F. Williams (1)
|
|
|
167
|
|
|
|
135
|
|
|
|
6,334
|
|
|
|
44,402
|
|
|
(1)
|
The shares and value realized include shares purchased through the Company’s 2000 Employee Stock Purchase Plan.
|
Potential Benefits upon Change of Control or Termination following a Change of Control
Change of Control Severance Arrangements in General.
The Company has entered into change of control severance agreements with its
Chief Executive Officer, and certain of its Named Executive Officers and other executive officers. The executive change of control and severance agreements described in the Compensation Discussion and Analysis above provide for accelerated vesting
of equity awards following a change of control and severance payments in the event the executive’s employment is terminated within twelve months following a change of control. Messrs. El-Hillow and Chleboski and Dr. Felton, each will
receive 12 months acceleration upon a change of control. Mr. El-Hillow, Mr. Chleboski and Dr. Felton each will receive 12 months severance in the case of a change of control followed by termination without cause or resignation for
good reason. Mr. Kawa will receive 6 months severance in the case of a change of control followed by termination without cause or resignation for good reason.
As described below in more detail, our change of control severance agreements with our executive officers also provide for either (1) an excise tax gross-up reimbursement or (2) a possible
reduction in the level of acceleration of vesting if either the value of the acceleration on a change of control or the value of the acceleration and other benefits on a change of control followed by an involuntary termination of employment would
constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code and would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code.
20
Automatic Acceleration of Vesting Following a Change of Control.
The following table
provides the intrinsic value (that is, the value based upon our closing stock price on December 31, 2010 ($3.48), less any applicable exercise price) of stock options and restricted stock that would become exercisable or vested as a result of a
change of control as of December 31, 2010. The Value of Unvested Restricted Stock Awards and Value of Unvested Performance Share Program Awards included in the table are also based on the closing price of our common stock on December 31,
2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Value of
Unvested
Stock Options
($)
|
|
|
Value of
Unvested
Restricted
Stock
Awards
($)
|
|
|
Value of
Unvested
Performance
Share Program
Awards
($)
|
|
|
280G excise
Tax and
Gross-
up Payment
($)
|
|
|
Total
Payments
and Value of
Equity
Awards
($)
|
|
|
Michael El-Hillow
|
|
|
—
|
|
|
|
115,780
|
|
|
|
58,001
|
|
|
|
—
|
|
|
|
173,781
|
|
|
Richard G. Chleboski
|
|
|
—
|
|
|
|
35,998
|
|
|
|
58,001
|
|
|
|
—
|
|
|
|
93,999
|
|
|
Dr. Lawrence Felton
|
|
|
—
|
|
|
|
38,335
|
|
|
|
—
|
|
|
|
—
|
|
|
|
38,335
|
|
Automatic
Acceleration of Vesting upon an Involuntary Termination Following a Change of Control.
Assuming the employment of our named executive officers was terminated involuntarily and without cause, or such officers resigned with good reason, during the
twelve months following a change of control occurring on December 31, 2010, in accordance with the terms of our executive change of control severance agreements our named executive officers would be entitled to cash payments in the amounts set
forth opposite their names in the below table, subject to any deferrals required under Section 409A of the Internal Revenue Code of 1986, as amended, and acceleration of vesting for outstanding equity awards, as set forth in the below table.
The following table provides the value of compensation and benefits payable and intrinsic value (that is, the value based upon our closing stock price on December 31, 2010 ($3.48), less any applicable exercise price) of stock options and
restricted stock that would become exercisable or vested as a result of a termination occurring immediately following a change of control as of December 31, 2010. The Value of Unvested Restricted Stock Awards and Value of Unvested Performance
Share Program Awards included are also based on the closing price of our common stock on December 31, 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Salary
($)
|
|
|
Bonus
($)
|
|
|
Continuation
of Benefits
($)
|
|
|
Accrued
Vacation
Pay
($)
|
|
|
Value of
Unvested
Stock Options
($)
|
|
|
Value of
Unvested
Restricted
Stock Awards
($)
|
|
|
Value of
Unvested
Performance
Share
Program
Awards
($)
|
|
|
280G Excise
Tax and
Gross-
up Payment
($)
|
|
|
Total
Payments and
Value of
Equity Awards
($)
|
|
|
Michael El-Hillow
|
|
|
450,000
|
|
|
|
—
|
|
|
|
9,369
|
|
|
|
22,500
|
|
|
|
—
|
|
|
|
194,445
|
|
|
|
58,001
|
|
|
|
—
|
|
|
|
734,315
|
|
|
Richard G. Chleboski
|
|
|
239,200
|
|
|
|
—
|
|
|
|
1,296
|
|
|
|
11,960
|
|
|
|
—
|
|
|
|
61,989
|
|
|
|
58,001
|
|
|
|
—
|
|
|
|
372,446
|
|
|
Dr. Lawrence Felton
|
|
|
275,000
|
|
|
|
—
|
|
|
|
1,296
|
|
|
|
6,983
|
|
|
|
—
|
|
|
|
76,557
|
|
|
|
—
|
|
|
|
—
|
|
|
|
359,836
|
|
Excise Tax Related
Change of Control Benefits
. If Evergreen Solar were sold for more than its intrinsic value (that is, the value based upon our closing stock price on December 31, 2010 ($3.48)), the value of compensation and benefits payable to our named
executive officers would increase and, if the value were high enough, each of the named executive officers may receive payments that would constitute “parachute payments” within the meaning of Section 280G of the Code and would be
subject to the excise tax imposed by Section 4999 of the Code.
Pursuant to their change of control severance agreements
with the Company, in the event that acceleration or other benefits provided for in the change of control severance agreements with Mr. El-Hillow constitute “parachute payments” within the meaning of Section 280G of the Code and
would be subject to the excise tax imposed by Section 4999 of the Code, such executive will receive (i) a payment from the Company sufficient to pay such excise tax, and (ii) an additional payment from the Company sufficient to pay
the federal and state income and employment taxes and additional excise taxes arising from the payments made to the employee by the Company.
In the event that the severance and other benefits provided Mr. Chleboski and Dr. Felton constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue
Code and would be subject to the excise tax
21
imposed by Section 4999 of the Internal Revenue Code, such executive’s benefits under the Agreement shall be either delivered in full or delivered as to such lesser extent which would
result in no portion of such benefits being subject to the excise tax, whichever results in the receipt by the employee, on an after-tax basis, of the greatest amount of benefits.
Each of the two forgoing tables sets forth the amount payable by the Company to each named executive officer to (1) offset the
estimated excise tax imposed by Section 4999 of the Internal Revenue Code that result from 280G “parachute payments” and (2) provide “gross-up payments” to offset the tax amounts that would result from payment of the
estimated excise tax imposed on the executive, based on, in each case, the assumed share value specified above.
NON-EMPLOYEE DIRECTOR COMPENSATION
Our compensation program for non-employee directors is designed to attract and retain qualified directors by offering compensation that is competitive with other growing technology companies and
recognizes the time, expertise and accountability required by Board service. Each year, the Compensation Committee reviews the current compensation program as well as director compensation data prepared by an external consulting firm. Based upon
this review, the Compensation Committee recommends to the full Board of Directors what changes, if any, should be made to the director compensation program. The Board must approve any changes to the director compensation program.
Under the current policy, new directors receive restricted stock units upon their election to the Board of Directors for $100,000 worth
of shares based on the average share price during the last six months of the fiscal year preceding the grant date. In addition, upon each annual meeting of our stockholders, each director who has served more than six months will receive restricted
stock units for $50,000 worth of shares based on the average share price during the last six months of the fiscal year preceding the grant date. Each initial grant of restricted shares and restricted stock units vests on the second anniversary after
the director joins the Board. In the case of initial awards of restricted shares, even after they are vested, the shares cannot be sold by a director (other than to cover tax obligations resulting from the vesting) until he or she leaves the
Board. In the case of initial and annual awards of restricted stock units, even after they are vested, the shares subject to those awards will only be paid when the director leaves the Board of Directors.
The current policy also provides for cash compensation for directors. Each non-employee director receives an annual retainer of $27,000,
and $1,500 for each in person meeting and $750 for each telephonic meeting, of the full Board and each committee. In addition, the Chairman or Lead Director (as applicable) and the committee chairpersons receive the following additional annual
retainers: Chairman of the Board-$27,000; Lead Director-$15,000; Audit Committee Chairperson-$18,000; Compensation Committee Chairperson-$12,000 and Nominating and Corporate Governance Committee Chairperson-$8,000. Our non-employee directors are
reimbursed for their reasonable out-of-pocket expenses incurred in attending meetings of the Board of Directors and any committees of the Board of Directors on which they serve.
The following table sets forth information regarding the compensation earned by or awarded to each non-employee director who served on
our Board of Directors for fiscal 2010.
22
Director Compensation
For Fiscal Year Ended December 31, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a)
Name
|
|
(b)
Fees Earned
or Paid in
Cash
($)
|
|
|
(c)
Stock Awards
($)(1)
|
|
|
(h)
Total
($)
|
|
|
Tom L. Cadwell
|
|
|
43,500
|
|
|
|
20,252
|
(2)
|
|
|
63,752
|
|
|
Allan H. Cohen
|
|
|
69,750
|
|
|
|
20,252
|
(3)
|
|
|
90,002
|
|
|
Dr. Peter W. Cowden
|
|
|
57,000
|
|
|
|
20,252
|
(4)
|
|
|
77,252
|
|
|
Edward C. Grady
|
|
|
72,000
|
|
|
|
20,252
|
(5)
|
|
|
92,252
|
|
|
Dr. Susan F. Tierney
|
|
|
45,500
|
|
|
|
20,252
|
(6)
|
|
|
65,752
|
|
|
(1)
|
See Note 11 of our consolidated financial statements for further information on the valuation of equity awards.
|
|
(2)
|
As of December 31, 2010, Mr. Cadwell held 2,712 shares of common stock underlying unexercised options, 1,667 shares of vested restricted stock and 6,983
shares of vested restricted stock units. The grant date fair value of stock awards granted to Mr. Cadwell during 2010 was $20,252.
|
|
(3)
|
As of December 31, 2010, Mr. Cohen held 6,146 shares of common stock underlying unexercised options, 1,667 shares of vested restricted stock and 6,983 shares
of vested restricted stock units. The grant date fair value of stock awards granted to Mr. Cohen during 2010 was $20,252.
|
|
(4)
|
As of December 31, 2010, Dr. Cowden held 3,274 shares of common stock underlying unexercised options, 1,667 shares of vested restricted stock and 6,983 shares
of vested restricted stock units. The grant date fair value of stock awards granted to Dr. Cowden during 2010 was $20,252.
|
|
(5)
|
As of December 31, 2010, Mr. Grady held 4,688 shares of common stock underlying unexercised options, 1,667 shares of vested restricted stock and 6,983 shares
of vested restricted stock units. The grant date fair value of stock awards granted to Mr. Grady during 2010 was $20,252.
|
|
(6)
|
As of December 31, 2010, Dr. Tierney held 7,817 shares of vested restricted stock units. The grant date fair value of stock awards granted to Dr. Tierney
during 2010 was $20,252.
|
23
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER
MATTERS.
Equity Compensation Plan Information
The following table provides information as of December 31, 2010 with respect to shares of our common stock that may be issued under equity compensation plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan category
|
|
Number of Securities
to
be Issued Upon Exercise
of Outstanding Options,
Stock Awards, Stock Units,
Warrants and
Rights
(a)(1)
|
|
|
Weighted-average
Exercise
Price of
Outstanding Options,
Warrants and Rights
(b)(2)
|
|
|
Number of
Securities
Remaining Available for
Future Issuance Under
Equity Compensation
Plans (Excluding
Securities Reflected
in
Column (a))
(c)(3)
|
|
|
Equity compensation plans approved by security holders
|
|
|
794,055
|
|
|
|
|
|
|
$
|
30.44
|
|
|
|
2,185,151
|
|
|
Equity compensation plans not approved by security holders
|
|
|
—
|
|
|
|
|
|
|
|
—
|
|
|
|
—
|
|
|
Total
|
|
|
794,055
|
|
|
|
|
|
|
$
|
30.44
|
|
|
|
2,185,151
|
|
|
(1)
|
Includes 517,770 shares of restricted stock awards and restricted stock units granted under the 2000 Stock Option and Incentive Plan. The remaining balance consists of
outstanding stock option grants.
|
|
(2)
|
The weighted average exercise price does not take into account the shares issuable upon vesting of outstanding restricted stock awards which have no exercise price.
|
|
(3)
|
1,666,667 shares were added to the equity compensation plan and approved by the stockholders at our 2010 annual meeting.
|
Securities Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information regarding beneficial ownership of our common stock as of April 15, 2011, or the measurement date by: (i) each person which is known by us to
own beneficially more than 5% of the outstanding shares of common stock; (ii) each of our directors; (iii) each of our executive officers named in the Summary Compensation Table; and (iv) all of our current directors and executive
officers as a group. Unless otherwise indicated the address for each beneficial owner is c/o Evergreen Solar, Inc., 138 Bartlett Street, Marlboro, Massachusetts 01752.
24
|
|
|
|
|
|
|
|
|
|
|
Name and Address of Beneficial Owner
|
|
Number of Shares
Beneficially
Owned (1)
|
|
|
Percentage of
Shares of
Common Stock (2)
|
|
|
5% Stockholders:
|
|
|
|
|
|
|
|
|
|
OCI Company Ltd. (3)
Oriental Chemical Building 50,
Sogong-Dong, Jung-Gu, Seoul, 100-718 Korea
|
|
|
2,616,354
|
|
|
|
6.8
|
%
|
|
|
|
|
|
Aristeia Capital, L.L.C (4)
136 Madison Avenue, 3
rd
Floor
New York, NY 10016
|
|
|
3,043,566
|
|
|
|
7.9
|
%
|
|
|
|
|
|
The Vanguard Group, Inc. (5)
100 Vanguard Blvd.
Malvern, PA 19355
|
|
|
1,936,095
|
|
|
|
5.0
|
%
|
|
Executive Officers and Directors:
|
|
|
|
|
|
|
|
|
|
Michael El-Hillow (6)
|
|
|
91,185
|
|
|
|
*
|
|
|
Paul Kawa (7)
|
|
|
9,026
|
|
|
|
*
|
|
|
Donald W. Reilly
|
|
|
20,833
|
|
|
|
*
|
|
|
Richard G. Chleboski (8)
|
|
|
102,547
|
|
|
|
*
|
|
|
Dr. Lawrence Felton (9)
|
|
|
34,146
|
|
|
|
*
|
|
|
Henry Ng (10)
|
|
|
26,042
|
|
|
|
*
|
|
|
Richard M. Feldt (11)
|
|
|
41,717
|
|
|
|
*
|
|
|
Scott Gish (11)
|
|
|
—
|
|
|
|
*
|
|
|
Dr. Brown F. Williams (11) (12)
|
|
|
57,560
|
|
|
|
*
|
|
|
Tom L. Cadwell (13)
|
|
|
11,362
|
|
|
|
*
|
|
|
Allan H. Cohen (14)
|
|
|
15,296
|
|
|
|
*
|
|
|
Dr. Peter W. Cowden (15)
|
|
|
11,924
|
|
|
|
*
|
|
|
Edward C. Grady (16)
|
|
|
16,171
|
|
|
|
*
|
|
|
Dr. Susan F. Tierney
|
|
|
7,817
|
|
|
|
*
|
|
|
All current executive officers and directors as a group (16 persons) (17)
|
|
|
444,106
|
|
|
|
1.1
|
%
|
|
*
|
Less than one percent of the outstanding shares of class.
|
|
(1)
|
The persons named in the table have sole voting and investment power with respect to all shares shown as beneficially owned by them, except as noted in the footnotes
below.
|
|
(2)
|
Applicable percentage ownership is based upon 38,612,775 shares of common stock outstanding as of the measurement date. Beneficial ownership is determined in accordance
with the rules of the Securities and Exchange Commission and includes voting and investment power with respect to shares. Shares of common stock subject to options currently exercisable or exercisable within 60 days after the measurement date are
deemed outstanding for computing the percentage ownership of the person holding such options, as the case may be, but are not deemed outstanding for computing the percentage ownership of any other person.
|
|
(3)
|
OCI Company Ltd. reported sole voting power and sole dispositive power over 2,616,354 shares beneficially owned.
|
|
(4)
|
Aristeia Capital, L.L.C reported shared voting power and shared dispositive power over 3,043,566 shares beneficially owned.
|
|
(5)
|
The Vanguard Group, Inc. reported sole voting power over 60,813 shares beneficially owned, sole dispositive power over 1,875,282 shares beneficially owned, and shared
dispositive power over 60,813 shares beneficially owned.
|
|
(6)
|
Includes 13,324 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(7)
|
Includes 667 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
25
|
(8)
|
Includes 59,625 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(9)
|
Includes 9,460 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date. Includes 1,089
shares of common stock held by spouse.
|
|
(10)
|
Includes 5,208 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(11)
|
The shares for Mr. Feldt, Mr. Gish and Dr. Williams are based on the last available Section 16 filings, adjusted for our knowledge of options expired, restricted stock
that was repurchased by the Company, and shares sold for taxes.
|
|
(12)
|
Includes 31,251 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(13)
|
Includes 2,712 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(14)
|
Includes 6,146 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(15)
|
Includes 3,274 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(16)
|
Includes 4,688 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
|
(17)
|
Includes 131,295 shares of common stock issuable upon the exercise of options that may be exercised within 60 days from the measurement date.
|
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Related Party Transaction Approval Policy
We have adopted a policy that
all related party transactions will be on terms no less favorable to us than could be obtained from unaffiliated third parties, and must be reviewed and approved on an ongoing basis by the Audit Committee of our Board of Directors. A “related
party transaction” is a transaction or relationship involving a director, executive officer or 5% stockholder or their immediate family members that is reportable under the SEC’s rules regarding such transactions.
Certain Relationships and Related Party Transactions
Transactions with Mr. Stegerwald
. Carl Stegerwald, our Vice President of Construction Management and Facilities Engineering, is the brother-in-law of Mr. Feldt, our former President,
Chief Executive Officer and Chairman of the Board of Directors. Mr. Stegerwald’s annual salary is $225,000 and his target bonus is 75% of his annual salary, which was $115,270 for 2010.
Transactions with OCI.
|
|
•
|
|
Amendments to Polysilicon Supply Agreements – Our April 2007 polysilicon supply agreement with OCI Company Ltd. (formerly DC Chemical Co., Ltd.),
a greater than 5% stockholder, which was subsequently amended, provides the general terms and conditions pursuant to which OCI will supply us with specified annual quantities of polysilicon at fixed prices beginning in 2008 and continuing through
2014. In January 2008, we entered into a second supply agreement with OCI, which was subsequently amended, that provides the general terms and
|
26
|
|
conditions pursuant to which OCI will supply us with specified annual quantities of polysilicon at fixed prices beginning in 2009 and continuing through 2015. In light of declining market prices,
pricing decreases for the silicon under supply agreements have been negotiated with OCI from time to time, including during 2010.
|
|
|
•
|
|
Stock Purchase Agreement – Concurrently with the April 2007 polysilicon supply agreement, pursuant to a stock purchase agreement, we sold OCI
500,000 shares of our common stock for $72.42 per share and issued OCI an additional 750,000 shares of transfer restricted common stock and 625 shares of transfer restricted preferred stock (which subsequently converted into 1.0 million shares
of transfer restricted common stock). The restrictions on the common stock lapsed upon the delivery of 500,000 kilograms of polysilicon to the Company.
|
Independence of Members of the Board of Directors and Committees
The Board
of Directors has determined that each of Messrs. Cadwell, Cohen, and Grady and Dr. Cowden and Dr. Tierney has no relationship with the Company other than as a stockholder and as a director, and each is independent within the meaning of our
director independence standards and the applicable Nasdaq director independence standards for service on the Board of Directors and the applicable committees of the Board of Directors. Our director independence standards are contained in the Board
of Directors’ Corporate Governance Guidelines, a copy of which is available under the “Investors” section of our website at
www.evergreensolar.com
.
|
ITEM 14.
|
PRINCIPAL ACCOUNTING FEES AND SERVICES.
|
Audit and Related Fees for Fiscal 2009 and 2010
The following table sets
forth a summary of the fees and expenses billed to us by PricewaterhouseCoopers LLP for professional services rendered for the fiscal years ended December 31, 2009 and 2010, respectively:
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2010
|
|
|
Audit Fees (1)
|
|
$
|
638,500
|
|
|
$
|
773,700
|
|
|
Audit-Related Fees
|
|
|
—
|
|
|
|
—
|
|
|
Tax Fees
|
|
|
—
|
|
|
|
—
|
|
|
All Other Fees
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
638,500
|
|
|
$
|
773,700
|
|
|
(1)
|
Audit Fees represent fees for professional services relating to the audit of our financial statements and the review of the financial statements included in our
quarterly reports, advice on accounting matters directly related to the audit and audit services provided in connection with other regulatory filings.
|
The Audit Committee meets regularly with PricewaterhouseCoopers LLP throughout the year and reviews both audit and non-audit services performed by PricewaterhouseCoopers LLP as well as fees charged by
PricewaterhouseCoopers LLP for such services. In engaging PricewaterhouseCoopers LLP for the services described above, the Audit Committee has determined that the provision of such services is compatible with maintaining PricewaterhouseCoopers
LLP’s independence in the conduct of its auditing functions pursuant to the auditor independence rules of the SEC.
27
Pre-approval Policies and Procedures.
The chairman of the Audit Committee is
appointed to provide pre-approval for audit related and permissible non-audit services proposed by PricewaterhouseCoopers LLP up to $50,000, subject to presenting such decision to the full Audit Committee at its next scheduled meeting. Such an
appointment allows PricewaterhouseCoopers LLP to commence an engagement without being delayed due to scheduling. Following an approval of these services by the Chairman of the Audit Committee, the full Audit Committee, at its next scheduled meeting,
would ratify the pre-approval.
28
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
(a) The following
documents are filed as part of this Report on Form 10-K:
3. Exhibits. Exhibits are as set forth in the section
entitled “Exhibit Index” which follows the section entitled “Signatures” in this report.
29
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned on this 29
th
day of April 2011, thereunto duly authorized.
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EVERGREEN SOLAR, INC.
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By:
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/s/ M
ICHAEL
E
L
-H
ILLOW
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Michael El-Hillow
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President and Chief Executive Officer
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(Principal Executive Officer)
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Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates
indicated.
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Name
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Title
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Date
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/s/ M
ICHAEL
E
L
-H
ILLOW
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President and Chief Executive Officer,
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April 29, 2011
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Michael El-Hillow
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(Principal Executive Officer)
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/s/ D
ONALD
W.
R
EILLY
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Chief Financial Officer
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April 29, 2011
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Donald W. Reilly
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(Principal Financial and Accounting Officer)
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*
Allan H. Cohen
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Director
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April 29, 2011
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*
Edward C. Grady
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Director
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April 29, 2011
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*
Dr. Peter W. Cowden
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Director
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April 29, 2011
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*
Tom L. Cadwell
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Director
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April 29, 2011
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*
Dr. Susan F. Tierney
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Director
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April 29, 2011
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* By:
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/s/ M
ICHAEL
E
L
-H
ILLOW
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April 29, 2011
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Michael El-Hillow
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Attorney-In-Fact
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EXHIBIT INDEX
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Number
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Description
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Incorporation by Reference
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3.1
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Third Amended and Restated Certificate of Incorporation
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Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1/A, filed on October 3, 2000
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3.2
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Certificate of Amendment of Third Amended and Restated Certificate of Incorporation
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**
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3.3
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Second Amended and Restated By-laws
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Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1/A, filed on October 3, 2000
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3.4
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Amendment No. 1 to Second Amended and Restated By-laws
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Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, dated February 4, 2009 and filed on February 5, 2009
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4.1
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Indenture between the Registrant and U.S. Bank National Association, as Trustee, dated July 2, 2008
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Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, dated July 2, 2008 and filed on July 7, 2008
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4.2
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First Supplemental Indenture between the Registrant and U.S. Bank National Association, as Trustee, dated July 2, 2008
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Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, dated July 2, 2008 and filed on July 7, 2008
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4.3
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Form of 4% Senior Convertible Note due 2013
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Exhibit 4.2 to the Registrant’s Current Report on Form 8-K, dated July 2, 2008 and filed on July 7, 2008
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4.4
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Indenture among the Registrant, the Guarantors and U.S. Bank National Association, as Trustee, dated April 26, 2010
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Exhibit 4.1 to Registrant’s Current Report on Form 8-K, dated April 21, 2010 and filed on April 27, 2010
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4.5
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Pledge and Security Agreement among the Registrant, the Guarantors and U.S. Bank National Association, as Collateral Agent, dated April 26, 2010
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Exhibit 4.2 to Registrant’s Current Report on Form 8-K, dated April 21, 2010 and filed on April 27, 2010
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4.6
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Collateral Trust Agreement among the Registrant, the Guarantors and U.S. Bank National Association, as Collateral Agent, dated April 26, 2010
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Exhibit 4.3 to Registrant’s Current Report on Form 8-K, dated April 21, 2010 and filed on April 27, 2010
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4.7
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Indenture for Subordinated Debt Securities between the Registrant and U.S. Bank National Association, as Trustee, dated February 17, 2011
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Exhibit 4.1 to Registrant’s Current Report on Form 8-K, dated February 17, 2011 and filed on February 17, 2011
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4.8
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First Supplemental Indenture between the Registrant and U.S. Bank National Association, as Trustee, dated February 17, 2011
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Exhibit 4.2 to Registrant’s Current Report on Form 8-K, dated February 17, 2011 and filed on February 17, 2011
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4.9
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Form of Global New 4% Notes
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Exhibit 4.3 to Registrant’s Current Report on Form 8-K, dated February 17, 2011 and filed on February 17, 2011
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10.1§
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1994 Stock Option Plan
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Exhibit 10.1 to the Registrant’s Registration Statement on Form S-1, filed on August 4, 2000
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E-1
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Number
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Description
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Incorporation by Reference
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10.2§
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Amended and Restated 2000 Stock Option and Incentive Plan, effective July 27, 2010
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Exhibit 10.1 to Registrant’s Current Report on Form 8-K, dated July 27, 2010 and filed on August 2, 2010
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10.3§
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Amended and Restated 2000 Employee Stock Purchase Plan, effective July 27, 2010
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Exhibit 10.2 to Registrant’s Current Report on Form 8-K, dated July 27, 2010 and filed on August 2, 2010
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10.4
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Form of Indemnification Agreement between Registrant and each of its directors and certain executive officers
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Exhibit 10.9 to the Registrant’s Registration Statement on Form S-1, filed on August 4, 2000
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10.5
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Stockholders Agreement between the Registrant and OCI, dated April 17, 2007
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Exhibit 10.2 to the Registrant’s Current Report on Form 8-K, dated April 17, 2007 and filed on April 17, 2007
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10.6†
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Supply Agreement between the Registrant and OCI, dated April 17, 2007
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Exhibit 10.3 to the Registrant’s Current Report on Form 8-K/A, dated April 17, 2007 and filed on April 23, 2007
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10.7†
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Supply Agreement between the Registrant and Wacker Chemie AG, effective August 31, 2007
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Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended September 30, 2007, filed on November 8, 2007
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10.8†
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Supply Agreement between the Registrant and Solaricos Trading Ltd., dated October 24, 2007
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Exhibit 10.34 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2007, filed on February 27, 2008
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10.9
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Lease Agreement between the Registrant and the Massachusetts Development Finance Agency (“MDFA”), dated November 20, 2007
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Exhibit 10.36 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2007, filed on February 27, 2008
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10.10
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Project Grant Agreement between the Registrant and MDFA, dated November 20, 2007
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Exhibit 10.37 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2007, filed on February 27, 2008
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10.11
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Project Grant Agreement between the Registrant and Massachusetts Technology Park Corporation, dated November 20, 2007
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Exhibit 10.38 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2007, filed on February 27, 2008
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10.12†
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Supply Agreement between the Registrant and OCI, dated January 30, 2008
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Exhibit 10.41 to the Registrant’s Annual Report on Form 10-K/A for the period ended December 31, 2007, filed on August 8, 2008
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10.13†
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Master Supply Agreement between the Registrant and Ralos Vertriebs GmbH, dated May 21, 2008
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Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 28, 2008, filed on August 4, 2008
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10.14†
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Master Supply Agreement between the Registrant and Wagner & Co Solartechnik GmbH, dated June 18, 2008
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Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 28, 2008, filed on August 4, 2008
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10.15
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Share Lending Agreement between the Registrant and Lehman Brothers International (Europe), through Lehman Brothers Inc., dated June 26, 2008
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Exhibit 10.5 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 28, 2008, filed on August 4, 2008
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10.16
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Capped Call Transaction Agreement between the Registrant and Lehman Brothers OTC Derivatives Inc., dated June 26, 2008
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Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q for the period ended June 28, 2008, filed on August 4,
2008
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E-2
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Number
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Description
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Incorporation by Reference
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10.17†
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Master Supply Agreement between the Registrant and IBC Solar AG, dated July 14, 2008
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Exhibit 10.32 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2008, filed on March 2, 2009
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10.18†
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Amended and Restated Sales Representative Agreement between the Registrant and Sovello, dated October 6, 2008
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Exhibit 10.33 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2008, filed on March 2, 2009
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10.19§
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Form of Amended and Restated Change of Control Severance Agreement between the Registrant and Michael El-Hillow
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Exhibit 10.39 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2008, filed on March 2, 2009
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10.20§
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Form of Amended and Restated Change of Control Severance Agreement between the Registrant and each of Richard G. Chleboski and Lawrence Felton
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Exhibit 10.40 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2008, filed on March 2, 2009
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10.21†
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PV License Agreement between ESLR1, LLC and TISICS Ltd., dated September 5, 2007
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Exhibit 10.42 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2008, filed on March 2, 2009
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10.22
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Frame Agreement among the Registrant, Jiawei Solar (Wuhan) Co., Ltd. (“Jiawei Wuhan”) and the Wuhan Donghu New Technology Development Zone Management Committee, dated
April 30, 2009
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Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the period ended July 4, 2009, filed on August 12, 2009
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10.22†
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Relationship Agreement among Jiawei Solarchina Co., Ltd. (“Jiawei China”), Jiawei Wuhan, the Registrant and Evergreen Solar (China) Co., Ltd. (“Evergreen
Wuhan”), dated July 14, 2009
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Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended October 3, 2009, filed on November 10, 2009
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10.23†
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Manufacturing Services Agreement among Jiawei China, Jiawei Wuhan, the Registrant and Evergreen Wuhan, dated July 14, 2009
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Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended October 3, 2009, filed on November 10, 2009
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10.24
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Increase Registered Capital and Enlarge Shares Agreement between Hubei Science & Technology Investment Co., Ltd. and the Registrant on Evergreen Wuhan, dated July 24,
2009
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Exhibit 10.3 to the Registrant’s Quarterly Report on Form 10-Q for the period ended October 3, 2009, filed on November 10, 2009
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10.25
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Equity Transfer Agreement among the Registrant, HSTIC and various other parties, dated July 24, 2009 and delivered September 22, 2009
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Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the period ended October 3, 2009, filed on November 10, 2009
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10.26†
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Amendment made on August 3, 2009 to Master Supply Agreement between the Registrant and Wagner & Co Solartechnik GmbH, dated June 18, 2008
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Exhibit 10.6 to the Registrant’s Quarterly Report on Form 10-Q for the period ended October 3, 2009, filed on November 10, 2009
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10.27†
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Amendment, dated on or about October 1, 2009, to Master Supply Agreement between the Registrant and IBC Solar AG, dated July 14, 2008
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Exhibit 10.41 to Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 9,
2010
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E-3
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Number
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Description
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Incorporation by Reference
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10.28†
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First Amendment entered into October 2, 2009 to the Supply Agreement between the Registrant and Solaricos Trading, Ltd., dated October 24, 2007
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Exhibit 10.42 to Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 9, 2010
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10.29†
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First Amendment entered into January 1, 2010 to the Supply Agreement between OCI and the Registrant, dated April 17, 2007
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Exhibit 10.43 to Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 9, 2010
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10.30†
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First Amendment entered into January 1, 2010 to the Supply Agreement between OCI and the Registrant, dated January 30, 2008
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Exhibit 10.44 to Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on March 9, 2010
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10.31
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Loan Agreement, between Evergreen Wuhan and Jiawei Wuhan, dated March 26, 2010
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Exhibit 10.3 to Registrant’s Quarterly Report on Form 10-Q for the period ended April 3, 2010, filed on May 13, 2010
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10.32
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Promissory Note made by Jiawei China to the Registrant, dated April 30, 2010
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Exhibit 10.4 to Registrant’s Quarterly Report on Form 10-Q for the period ended April 3, 2010, filed on May 13, 2010
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10.33§
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Management Incentive Plan
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Exhibit 10.5 to Registrant’s Quarterly Report on Form 10-Q for the period ended April 3, 2010, filed on May 13, 2010
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10.34
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Lease Contract between Evergreen Solar (China) Co. and Jiawei Wuhan, dated May 14, 2010
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Exhibit 10.2 to Registrant’s Quarterly Report on Form 10-Q for the period ended July 3, 2010, filed on August 11, 2010
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10.35
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First Amendment to Ground Lease between the Registrant and Massachusetts Development Finance Agency, dated June 10, 2010
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Exhibit 10.3 to Registrant’s Quarterly Report on Form 10-Q for the period ended July 3, 2010, filed on August 11, 2010
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10.36
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Offer letter between the Registrant and Donald W. Reilly dated November 3, 2010
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**
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10.37
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Letter Agreement between the Registrant and Brown F. Williams dated November 15, 2010
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**
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10.38†
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Share Purchase Agreement between Q-Cells SE, Renewable Energy Corporation and the Registrant and Rolling Hills S.à.r.l dated March 22, 2010
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Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated March 23, 2010 and filed on September 14, 2010
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21.1
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List of Subsidiaries
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**
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23.1
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Consent of PricewaterhouseCoopers LLP, an Independent Registered Public Accounting Firm
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**
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31.1
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Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
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*
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E-4
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Number
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Description
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Incorporation by Reference
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31.2
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Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002
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*
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†
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Confidential treatment granted as to certain portions.
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§
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Indicates a management contract or compensatory plan, contract or arrangement.
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*
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Not applicable (furnished herewith)
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**
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Filed with the same exhibit number with the Registrant’s report on Form 10-K for the year ended December 31, 2010, as filed on March 9, 2011.
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E-5
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