Exhibit 99.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this “ Agreement ”) is entered into as of July
10, 2009 (the “ Effective Date ”), by and
between Ascent Solar Technologies, Inc., a Delaware corporation
(the “ Company ”), and Farhad Moghadam (the
“ Executive ”).
RECITALS
A.
The Company desires to employ and
retain the Executive as President and Chief Executive Officer of
the Company.
B.
The Executive agrees to perform the
services of President and Chief Executive Officer for the Company
in accordance with the terms and conditions of this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the respective covenants and agreements of the parties contained in
this Agreement, the Company and Executive agree as
follows:
1.
Term
. The term of this Agreement is for four
(4) years, commencing on August 3, 2009 (the “ Start
Date ”), unless amended by agreement of the parties or
terminated as set forth in Section 5.
2.
Duties
. The Executive will devote his full business
time, energies and best efforts to the promotion of the business
and affairs of the Company, with responsibility to perform such
duties customary of his title and position, and such additional
duties that may be specified from time to time by the Board of
Directors of the Company (the “ Board ”).
The initial location at which the Executive shall perform services
for the Company shall be the Company’s headquarters in
Thornton, Colorado. Notwithstanding the foregoing nothing herein
shall prohibit Executive from spending a portion of his business
time to serve on one or more corporate boards with prior consent of
the Company board of directors or for charitable purposes provided
that such activities do not interfere with the performance of his
duties to the Company.
3.
Compensation and
Benefits .
a)
Base Compensation.
In consideration of all
services to be rendered by the Executive to the Company, the
Company will pay to the Executive the base salary of three hundred
fifty thousand dollars ($350,000) per year from the Start Date
through the termination of this Agreement and any extensions of it,
subject to such increases as the Board may determine, and payable
in accordance with the Company’s standard payroll practices
(“ Base Salary ”).
b)
Bonus
Compensation. As
further compensation, the Company may pay to the Executive an
annual bonus of up to one hundred percent (100%) of Base Salary, at
such times and in such amounts as the Board and its Compensation
Committee may determine based on the Executive’s performance
relative to a performance scorecard for each fiscal year.
For
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fiscal year 2009, the performance scorecard will
be jointly developed in good faith by the Executive and the Company
within thirty (30) days of the Start Date. The scorecard for
each subsequent fiscal year will be jointly developed in good faith
by the Executive and the Company within thirty (30) days of the
beginning of that fiscal year;
c)
Equity Compensation
. As further compensation, on
the Start Date and upon approval by the Compensation Committee of
the Board, the Company will grant the Executive:
i.
One hundred ten thousand (110,000)
restricted stock units (“ RSUs ”), which shall
be governed by and be issued under the Company’s 2008
Restricted Stock Plan. Seventy-five thousand (75,000) of the
RSUs shall vest according to the following schedule: twenty
thousand (20,000) RSUs shall be immediately vested; twenty thousand
(20,000) RSUs shall vest on the second anniversary of the Start
Date; fifteen thousand (15,000) RSUs shall vest on the third
anniversary of the Start Date; and twenty thousand (20,000) of the
RSUs shall vest on the fourth anniversary of the Start Date.
Up to another fifteen thousand (15,000) of the RSUs shall vest on
the third anniversary of the Start Date, and up to another twenty
thousand (20,000) RSUs shall vest on the fourth anniversary of the
Start Date, in both cases the vested amount to be determined by the
Board upon evaluation of the Executive’s performance relative
to performance criteria to be jointly developed in good faith by
the Executive and the Company by December 31, 2009.
ii.
Stock options to purchase up to one
hundred thousand (100,000) shares of the Company’s common
stock, vesting in equal amounts on the first, second, third and
fourth anniversaries of the Start Date (i.e., 25% each year), at an
exercise price equal to the closing price of the Company’s
common stock on Nasdaq on the effective date of grant. The
options shall be governed by and be issued under the
Company’s 2005 Stock Option Plan.
iii.
Stock options to purchase up to two
hundred thousand (200,000) shares of the Company’s common
stock, vesting in equal amounts on the first, second, third and
fourth anniversaries of the Start Date (i.e., 25% each year), at an
exercise price equal to the closing price of the Company’s
common stock on Nasdaq on the effective date of grant. The
options shall be made as an “inducement grant” under
relevant Nasdaq rules, and will be granted outside of the
Company’s 2005 Stock Option Plan.
d)
Performance-based
compensation. Each
performance scorecard and any other performance criteria to be used
in the evaluation of the Executive’s performance and
calculation of compensation shall be determined and approved by the
Compensation Committee of the Board, and no performance-based
compensation shall be paid or deemed vested unless and
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until the Compensation Committee determines that
the performance criteria and other materials terms have been
satisfied.
e)
Taxes. Executive shall be solely responsible for
the satisfaction of all federal, state, local and foreign income
and other individual tax arising from or applicable to the
acquisition, vesting, exercise or sale of Executive’s cash
and equity compensation.
f)
Vacation.
The Executive will receive four (4)
weeks of paid vacation for each contract year of this Agreement,
commencing on the Start Date. Vacation will be prorated in
the event of termination pursuant to Section 5. The Executive
will not be entitled to carry over accrued but unused vacation from
one contract year to the next.
g)
Relocation and Relocation
Expenses .
Executive shall permanently relocate to the Denver, Colorado
metropolitan area within six (6) months of the Start Date, for
which the Company will reimburse the Executive all reasonable and
documented moving expenses for one-way travel, household goods and
up to two automobiles (including taxes paid by the Executive as
part of receiving such reimbursement) incurred in connection with
the relocation of the Executive and his immediate family
members. In connection with such relocation, the Company also
will at its expense provide the Executive and his immediately
family members with an apartment in the Denver, Colorado
metropolitan area for temporary housing for up to six (6) months
after the Start Date.
h)
Benefit Plans
. To the extent permitted by
law and except as otherwise may be determined by the Board, the
Executive will be eligible to participate in the Company’s
standard benefit plans according to plan provisions.
4.
Confidential
Information .
a)
Company Information.
Executive agrees at all times
during the term of his employment and thereafter, to hold in
strictest confidence, and not to use, except for the benefit of the
Company, or to disclose to any person, firm or corporation without
written authorization of the Board of Directors of the Company, any
Confidential Information (as defined below) of the Company.
For purposes of this Agreement “ Confidential
Information ” is defined as any Company proprietary
information, technical data, trade secrets or know-how, including,
but not limited to, research, product plans, products, services,
customer lists and customers, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing,
finances or other business information. Confidential Information
does not include any of the foregoing items which has become
publicly known and made generally available through no wrongful act
of Executive or of others who were under confidentiality
obligations as to the item or items involved.
b)
Former Employer
Information.
Executive agrees that he will not, during his employment with the
Company, improperly use or disclose any proprietary information or
trade secrets of any former employer or other person or entity and
that he will not bring onto the premises of the Company any
unpublished document or proprietary information
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belonging to any such employer, person or entity
unless consented to in writing by such employer, person or
entity.
c)
Third Party
Information.
Executive recognizes that the Company has received and in the
future will receive from third parties their confidential or
proprietary information subject to a duty on the Company’s
part to maintain the confidentiality of such information and to use
it only for certain limited purposes. Executive agrees to hold all
such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out his
work for the Company consistent with the Company’s agreement
with such third party.
d)
Employee Invention Assignment and
Non-Disclosure Agreement. At the Company’s request, the
Executive will promptly execute the Company’s standard form
of employee invention assignment and non-disclosure
agreement.
5.
Termination of
Employment .
a)
Termination for
Cause. Notwithstanding any provision contained in this
Agreement to the contrary, the Company may immediately terminate
this Agreement for Cause (as defined below) without giving advance
notice to the Executive or compensation in excess of that set forth
in Section 6(a) below. For purposes of this Agreement “
Cause ” includes but is not limited to the
following: (i) the conviction of the Executive or a pleading
of guilty or nolo contendere to any felony, any misdemeanor
where imprisonment is imposed, or any crime involving moral
turpitude; (ii) commission of any act of theft, fraud or
dishonesty, or any knowing or negligent falsification of any
Company records; (iii) a material breach by Executive of his
obligations under this Agreement, which will include improper
disclosure of the Company’s confidential or proprietary
information or a failure to perform such duties as are reasonably
assigned to the Executive by the Board, which is not cured within
30 days following written notice by the Company of such failure;
(iv) a course of conduct amounting to gross incompetence; (v)
chronic and unexcused absenteeism which is not cured within 30 days
following written notice by the Company of such failure; (vi) any
act by Executive of disloyalty to the Company; or (vii) any
violation of Executive’s other fiduciary duties to the
Company.
b)
Termination Without
Cause. Either the
Company or the Executive may terminate this Agreement without Cause
on giving not less than 30 days’ prior written notice to the
other party.
c)
Disability.
Unless prohibited by applicable law,
this Agreement shall be automatically terminated if the Executive
suffers a Permanent Disa
