Exhibit 10.49


 


SEPARATION AGREEMENT AND GENERAL
RELEASE


 


This
Separation Agreement and General Release (“Agreement”) is
entered into by and between Matthew Foster (“Foster”),
an individual, and Ascent Solar Technologies, Inc., a Delaware corporation
(“Ascent Solar”):


 


RECITALS


 


A.            Effective December 8,
2005, Foster and Ascent Solar entered into an Executive Employment Agreement (“Employment Agreement”) whereby Foster was employed as Ascent
Solar’s Chief Executive Officer. The Employment Agreement was amended,
effective June 29, 2007.


 


B.            On September 19,
2008 (“Notice Date”), Ascent Solar and Foster
agreed that Foster’s employment with Ascent Solar will terminate effective October 19,
2008 (“Separation Date”).


 


C.            The parties
wish to memorialize the terms of Foster’s separation and provide a structure
for payout of the severance pay pursuant to the terms and conditions set forth
in this Agreement and Foster’s Employment Agreement.


 


AGREEMENT


 


1.             Termination of
Employment. Foster’s employment with Ascent Solar will
terminate effective as of the Separation Date. For purposes of Foster’s
Employment Agreement, the termination of his employment is a Termination
Without Cause.


 


2.             Compensation
owed. Foster acknowledges receipt of all compensation, including accrued but
unused vacation time, due from Ascent Solar through the payroll period
immediately prior to the Notice Date. Foster acknowledges that he will receive
all owed final compensation, including any accrued but unused vacation time and
earned bonuses or pro-rate share thereof, on his Separation Date. Ascent Solar
shall commence paying Foster the severance benefit provided for in paragraph 6(b) of
his Employment Agreement (“Contractual Severance
Benefit”) commencing on the first regular payday following the Separation
Date.


 


3.             Separation
Benefit: Subject to the provisions of this Agreement and provided Foster
performs all of his obligations and satisfies all conditions precedent under
this Agreement, and does not revoke his acceptance of this Agreement, Ascent
Solar will provide Foster with the following separation benefits (the “Separation Benefits”) in addition to the Contractual
Severance Benefit:


 


(a)           Acceleration of the vesting
of all stock options to which Foster is entitled pursuant to option grants made
on November 18, 2005 and February 27, 2006 under the Ascent Solar
Technologies, Inc. 2005 Stock Option Plan and Stock Option Agreement, with
the acceleration to be effective October 19, 2008.


 


(b)           A lump-sum
payment of Seventy-Five Thousand and 00/100 Dollars ($75,000.00), less required
withholding, payable by October 19, 2008.


 

















 


(c)           If Foster elects to continue
medical and dental coverage under COBRA (for Foster and Foster’s immediate
family), Ascent Solar will, for a period of twelve (12) months following the
Separation Date, pay that portion of Foster’s COBRA premium that corresponds to
the same level of medical and dental benefits insurance coverage paid for by
Ascent Solar as of the Notice Date (the “COBRA
Benefits”). Foster understands that Foster has the obligation to formally
elect COBRA coverage if such coverage is desired and that Ascent Solar may, at
its discretion, reimburse Foster for COBRA payments or make COBRA payments
directly on behalf of the Foster.


 


(d)           The Company waives any
contractual lock-up restrictions imposed by it otherwise preventing the sale by
Foster of restricted shares acquired by him in November 2005.


 


The
Separation Benefits do not constitute nor are they intended to be any form of
compensation to Foster for any services to Ascent Solar.


 


4.             Consideration. Foster
acknowledges that the Separation Benefits constitute a substantial economic
benefit to Foster, and that they constitute good and valuable consideration for
the various commitments undertaken by Foster in this Agreement.


 


5.             Parties
Released. For purposes of this Agreement, the term “Releasees” means Ascent Solar, its past and present parents,
subsidiaries, divisions, and affiliated entities; their respective
predecessors, successors, assigns, benefit plans, and plan administrators; and
their respective past and present shareholders, members, partners, directors,
managers, trustees, officers, employees, agents, independent contractors,
attorneys and insurers.


 


6.             General Release. Foster, for
and on behalf of himself and each of his personal and legal representatives,
heirs, devisees, executors, successors and assigns, hereby acknowledges full
and complete satisfaction of, and fully and forever waives, releases, acquits,
and discharges Releasees from any and all claims, causes of action, demands,
liabilities, damages, obligations, and debts (collectively referred to as “Claims”), of every kind and nature, whether known or
unknown, suspected or unsuspected, or fixed or contingent, that Foster holds as
of the date Foste he signs this Agreement, or at any time he previously held
against Releasees, or any of them, arising out of any matter whatsoever (with
the exception of breaches of this Agreement). This General Release specifically
includes, but is not limited to, any and all Claims:


 


(a)           Arising out of or in any way
related to Foster’s employment with Ascent Solar or the termination of his
employment;


 


(b)           Arising out of
or in any way related to any contract or agreement between Foster and Ascent
Solar;


 


(c)           Arising under or
based on the Equal Pay Act of 1963; Title VII of the Civil Rights Act of 1964,
as amended; Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. §
1981); the Civil Rights Act of 1991; the Americans With Disabilities Act of
1990; the Family and Medical Leave Act of 1993; the Sarbanes-Oxley Act; the
National Labor Relations Act; the Worker Adjustment and Retraining Notification
Act of 1988; Employee Retirement Income Security Act of 1974 (ERISA) (excepting
claims for vested 


 


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benefits, if any, to which Foster is legally entitled thereunder); the
Colorado Constitution; the Colorado antidiscrimination statute (Title 24, Article 34,
Part 4); and the Colorado Wage Act;


 


(d)           Arising under
or based on the Age Discrimination in Employment Act of 1967 (ADEA), as amended
by the Older Workers Benefit Protection Act (OWBPA), and alleging a violation
thereof based on any action or failure to act by Releasees, or any of them, at
any time prior to the effective date of this Agreement; and


 


(e)           Arising out of or in any way
related to any federal, state, county or local constitutional provision, law,
statute, ordinance, judicial or administrative decision, order, policy or
regulation (i) prohibiting employment discrimination; (ii) providing
for the payment of wages, benefits, or paid or unpaid leave of absence; (iii) creating
rights or claims for employees, including, but not limited to, any and all
claims alleging breach of public policy, whistleblowing, retaliation, and the
implied obligation of good faith and fair dealing; (iv) creating rights or
claims arising out of or relating to any express or implied oral or written
contract, handbook, manual, policy statement or employment practice; or (v) creating
rights or claims relating to or involving any misrepresentation, defamation,
libel, slander, interference with contractual relations, intentional or
negligent infliction of emotional distress, invasion of privacy, false
imprisonment, assault, battery; fraud, negligence, or wrongful discharge.


 


7.             Intended Scope
of Release. It is the intention of the parties and is fully
understood and agreed by them that this Agreement includes a General Release of
all Claims (with the exception of breaches of this Agreement and claims for
vested benefits, if any, to which Foster is legally entitled under ERISA),
which Foster holds or previously held against Releasees, or any of them,
whether or not they are specifically referred to herein. No reference herein to
any specific claim, statute or obligation is intended to limit the scope of
this General Release and, notwithstanding any such reference, this Agreement
shall be effective as a full and final bar to all Claims of every kind and
nature, whether known or unknown, suspected or unsuspected, or fixed or
contingent, released in this Agreement.


 


8.             Employee Waiver
of Rights. As part of the foregoing General Release, Foster
is waiving all of his rights to any recovery, compensation, or other legal,
equitable or injunctive relief (including, but not limited to, compensatory
damages, liquidated damages, punitive damages, back pay, front pay, attorneys’
fees, and reinstatement to employment), from the Releasees, or any of them, in
any administrative, arbitral, judicial or other action brought by or on behalf
of Foster in connection with any Claim released in this Agreement.


 


9.             Covenant Not to
Sue. In addition to all other obligations contained in this Agreement,
Foster agrees that he will not initiate, bring or prosecute any suit or action
against any of Releasees in any federal, state, county or municipal court, with
respect to any of the Claims released in this Agreement. Notwithstanding the
forgoing, nothing in this Agreement shall preclude Foster from bringing suit to
challenge the validity or enforceability of this Agreement under the Age
Discrimination in Employment Act as amended by the Older Workers Benefit
Protection Act.


 


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10.           Remedies for
Breach. If Foster, or anyone on his behalf, initiates, brings or prosecutes
any suit or action against Releasees, or any of them, in any federal, state,
county or municipal court, with respect to any of the Claims released in this
Agreement (except to challenge the validity or enforceability of this Agreement
under the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act), or if Foster breaches any of the terms of this
Agreement, then (a) Foster shall  be
liable for the payment of all damages, costs and expenses (including attorneys’
fees) incurred by Releasees, or any of them, in connection with such suit,
action or breach and (b) payments on the Contractual Severance Benefit
shall cease.


 


11.           No Admission of
Liability. Nothing in this Agreement constitutes or shall be
construed as an admission of liability on the part of Releasees, or any of
them. Releasees expressly deny any liability of any kind to Foster, and
particularly any liability arising out of or in any way related to his
employment with Ascent Solar or the termination of his employment.


 


12.           Additional
Post-Employment Covenants.


 


(a)           With respect to Ascent Solar’s
trade secrets and other confidential information, Foster hereby reaffirms and
agrees to abide by all confidentiality and nondisclosure obligations to which
he is subject under any agreement with Ascent Solar, including without
limitation, the Employee Invention Assignment and Non-Disclosure Agreement
executed by Foster on December 12, 2005 (“NDA”)
and the nondisclosure obligations set forth in Foster’s Employment Agreement,
as well as the Colorado Uniform Trade Secrets Act.


 


(b)           Foster shall
keep confidential the existence of this Agreement and its terms, and agrees
that neither he, nor his attorneys, nor any of his agents shall directly or
indirectly disclose any such matters (other than to the Equal Employment
Opportunity Commission, the Colorado Civil Rights Commission or any other
federal, state or local fair employment practices agency), unless written
consent is given by Ascent Solar’s Chairman of the Board of Directors, or
unless required to comply with any federal, state or local law, rule or
order. However, this paragraph will not prohibit Foster from disclosing the
terms of this Agreement to his respective attorneys, accountants or other tax
consultants as necessary for the purpose of securing their professional advice,
or in connection with any suit or action alleging a breach of this Agreement.


 


(c)           Foster will not
access or attempt to access, directly or indirectly, by any matter whatsoever,
Ascent Solar’s computer network, including without limitation, Ascent Solar’s
e-mail system (other than to transmit e-mail messages for a legitimate business
purpose), Ascent Solar’s electronic document storage and retrieval system, and
Ascent Solar’s computer network servers and related equipment.


 


(d)           Foster shall
comply with all United States and Colorado securities laws through which he has
obligations as a result of his employment with Ascent Solar.


 


(e)           Foster agrees
that for a period of two (2) years following the termination of his
employment with Ascent Solar, he will not: (a) directly or indirectly,
solicit or 


 


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accept business from, or provide products or
services to, any Customer, where such business, products or services would be
competitive with Ascent Solar’s business, products or services, or (b) do
any act or thing which may interfere with or adversely affect the relationship
(contractual or otherwise) of Ascent Solar with any Customer or vendor of
Ascent Solar or induce any such Customer or vendor to cease doing business with
Ascent Solar. For purposes of this paragraph, the term “Customer” means (i) a
customer of Ascent Solar to which Foster sold or provided the Ascent Solar’s
products or services at any time during the two (2) year period
immediately preceding the termination of his employment, (ii) any entity
for which Foster orchestrated, developed, supervised, coordinated or
participated in marketing strategy, marketing plans and marketing campaigns on
behalf of the Ascent Solar at any time during the two (2) year period
immediately preceding the termination of his employment, or (iii) any
entity as to which Foster acquired Confidential Information (as that term is
defined in Foster’s NDA at any time during his employment with the Ascent
Solar.


 


(f)            Foster agrees
that for a period of two (2) years following the termination of his
employment with Ascent Solar, he will not, for any reason, directly or
indirectly solicit, hire, or otherwise do any act or thing which may interfere
with Ascent Solar’s relationship with any of its employees, including without
limitation, inducing an employee of Ascent Solar (who is employed by Ascent
Solar as of the Notice Date) to leave the employ of the Company.


 


13.           Warranty of Return of Ascent
Solar Property. Foster warrants and acknowledges that upon
termination of his employment with Ascent Solar, he turned over to Ascent Solar
all equipment or other property issued to him by Ascent Solar, along with all
documents, notes, computer files, and other materials which he had in his
possession or subject to his control, relating to Ascent Solar and/or any of
its customers. Foster further warrants and acknowledges that he has not
retained any such documents, notes, computer files or other materials
(including any copies or duplicates thereof).


 


14.           Consideration Period. Foster is advised to consult with an attorney of his choice prior to
signing this Agreement. Foster understands that he has a period of
twenty-one (21) days within which to consider and accept the Agreement. This
twenty-one (21) day period begins to run on the Notice Date, which Foster
acknowledges is the date on which he received a copy of this Agreement (if not
earlier).


 


15.           Revocation
Period. Foster understands that he has the right to revoke
this Agreement at any time within seven (7) days after he signs it
and that the Agreement shall not become effective or enforceable until this
revocation period has expired without revocation.


 


16.           Nondisparagement. Foster shall
not make any disparaging remarks about the Releasees which are likely to cause
harm to Releasees, collectively or individually, or their products and
services.


 


17.           Warranty of
Understanding and Voluntary Nature of Agreement. Foster acknowledges that
he has carefully read and fully understands all of the provisions of this
Agreement; that he knows and understands the rights he is waiving by signing
this Agreement; 


 


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and
that he has entered into the Agreement knowingly and voluntarily, without
coercion, duress or overreaching of any sort.


 


18.           Severability. The
provisions of this Agreement are fully severable. Therefore, if any provision
of this Agreement is for any reason determined to be invalid or unenforceable,
such invalidity or unenforceability will not affect the validity or
enforceability of any of the remaining provisions. Furthermore, any invalid or
unenforceable provisions shall be modified or restricted to the extent and in the
manner necessary to render the same valid and enforceable, or, if such
provision cannot under any circumstances be modified or restricted, it shall be
excised from the Agreement without affecting the validity or enforceability of
any of the remaining provisions. The parties agree that any such modification,
restriction or excision may be accomplished by their mutual written agreement
or, alternatively, by disposition of a court or other tribunal.


 


19.           Entire
Agreement/Integration. This Agreement constitutes the sole and
entire agreement between Foster and Ascent Solar with respect to the subjects
addressed in it, and supersedes all prior or contemporaneous agreements,
understandings, and representations, oral and written, with respect to those
subjects.


 


20.           No Waiver By
Ascent Solar. No waiver, modification or amendment of any of the
provisions of this Agreement shall be valid and enforceable unless in writing
and executed by Foster and Ascent Solar’s Chairman of the Board of Directors.


 


21.           Successors and
Assigns. This Agreement shall be binding upon, and shall inure to the benefit
of, Foster and his personal and legal representatives, heirs, devisees,
executors, successors and assigns, and Ascent Solar and its successors and
assigns.


 


22.           Choice of Law. This
Agreement and any amendments hereto shall be governed by and construed in
accordance with the laws of the State of Colorado, without regard to conflicts
of law principles.


 


23.           Consulting
Agreement.  The parties
anticipate that Foster and Ascent Solar will execute a consulting agreement
pursuant to which Foster may render services to Ascent Solar for a period of up
to one year following the Separation Date.


 


 


	
  ASCENT
  SOLAR TECHNOLOGIES, INC.

  	
      MATTHEW
  FOSTER

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/
  Mohan Misra

  	
  9/19/08    

  	
      

  	
    /s/
  Matthew Foster 

  	
  9/19/08 

  
	
  Chairman of the Board

  	
  Date        

  	
  Date      

  



 


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