Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT (this “ Agreement ”) is
entered into as of August 3, 2009 (the “ Effective
Date ”), by and between Ascent Solar Technologies, Inc.,
a Delaware corporation (the “ Company ”), and
Farhad Moghadam (the “ Executive ”), and amends
and supersedes in its entirety the Executive Employment Agreement
between the parties dated as of July 10, 2009.
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 ”).
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Amended and Restated
Executive Employment
Agreement
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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 or its Compensation
Committee may determine based on the Executive’s performance
relative to a performance scorecard for each fiscal year. For
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:
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i.
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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 or its Compensation Committee 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.
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ii.
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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.
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iii.
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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.
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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 until the
Compensation Committee determines that the performance criteria and
other materials terms have been satisfied.
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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 belonging to any such employer,
person or entity unless consented to in writing by such employer,
person or entity.
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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 Disability (as defined below).
For purposes of this Agreement, “ Permanent Disability
” is defined as the Executive’s inability, due to
illness, accident, or other cause, to perform the majority of his
usual duties for a period of three (3) months or more despite
reasonable accommodation by the Company. Notwithstanding the
foregoing, if the disabled Executive and the Company agree, the
disabled Executive may thereafter be employed by the Company upon
such terms as may be mutually agreeable.
d) Death. If the Executive dies, this
Agreement will automatically terminate.
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e) Transition. Upon termination of
employment, the Executive shall: (1) cooperate with the
Company, to the extent reasonably requested by the Company, to
effect a smooth transition of the Executive’s
responsibilities and to ensure that the Company
