EXHIBIT 99.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this “ Agreement ”) is entered into as of
July 15, 2009 (the “ Effective Date ”), by
and between Ascent Solar Technologies, Inc., a Delaware
corporation (the “ Company ”), and Prem Nath
(the “ Executive ”).
RECITALS
A.
The Company desires to continue to
employ the Executive as Senior Vice President of Production
Operations and Technology of the Company.
B.
The Executive agrees to perform the
services of Senior Vice President of Production Operations and
Technology 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 two
(2) years, commencing on July 31, 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 Chief
Executive Officer of the Company (the “ CEO
”).
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 an annualized base salary of two
hundred thirty-four thousand dollars ($234,000) per year from the
Start Date through December 31, 2009, and an annualized base
salary of two hundred eighty thousand dollars ($280,000) per year
from January 1, 2009 through the termination of this Agreement
and any extensions of it, payable in accordance with the
Company’s normal payroll practices (the annualized base
salary for each year referred to herein as the “ Base
Salary ” for that year).
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 in their discretion based on the
Executive’s performance and the overall performance of the
Company (beginning with performance during the 2009 calendar
year);
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c)
Equity Compensation
. As further compensation,
upon approval by the Compensation Committee of the Board, the
Company will grant the Executive seventy thousand (70,000)
restricted stock units (“ RSUs ”), which shall
be governed by and be issued under the Company’s 2008
Restricted Stock Plan. The RSUs shall vest according the
following schedule: Up to fifteen thousand (15,000) of the RSUs
shall vest on December 31, 2009; up to another fifteen
thousand (15,000) of the RSUs shall vest on July 31, 2010; up
to another twenty thousand (20,000) of the RSUs shall vest on
December 31, 2010; and up to another twenty thousand (20,000)
of the RSUs shall vest on July 31, 2011. In each case
and for each vesting date, the number of RSUs vested will be
determined by the Board in its discretion upon evaluation of the
Executive’s performance during the period from the
immediately preceding vesting date until the vesting date
triggering the evaluation (the “ Evaluation Period
”) relative to performance criteria to be jointly developed
in good faith by the Executive and the Company. For the RSUs
eligible for vesting on December 31, 2009, the performance
criteria shall be jointly developed by August 31, 2009.
For the RSUs eligible for vesting on each of the other vesting
dates above, the performance criteria shall be jointly developed at
least six (6) months before the relevant vesting
date.
d)
Performance-based
compensation. 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 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)
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. The
Company match on the 401(k) plan will be determined by the
plan document(s) and applicable IRS regulations, and there is
not an implied match beyond these limits.
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 or the CEO of the
Company, any Confidential Information (as defined below) of the
Company. For purposes of this Agreement “
Confidential
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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 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. If he has not already done so, 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.
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