Exhibit
10.51


 


CONSULTANT AGREEMENT


 


This CONSULTANT AGREEMENT (this “Agreement”),
dated as of September 24, 2008, is between ASCENT SOLAR TECHNOLOGIES, INC.
(the “Company”) and MATTHEW FOSTER (the “Consultant”).


 


RECITAL


 


The Company and the Consultant desire to have the Consultant furnish
the Company with certain services under the terms and conditions set forth in
this Agreement.


 


AGREEMENT


 


The parties agree as follows:


 


SECTION 1.         SERVICES


 


The Consultant will perform services (the “Services”)
in the following areas, as and when requested by the Company: business
development; investor relations; strategic planning; assessment of competition
and competitive environment; global expansion strategy; and management advisory
services. The Services will be available to the Company pursuant to a mutually
agreed-on schedule, and the parties agree that Consultant will work up to ten (10) hours
per week (no weekly minimum) in connection with performance of the Services.
The Consultant will prepare such records and reports reasonably requested by
the Company regarding the performance of the Services. The Consultant will use
his best efforts to advance the interests of the Company, and will faithfully,
industriously, and to the best of his abilities, perform the Services. The
Consultant will report directly to the Company’s Chief Executive Officer.


 


SECTION 2.         TERM


 


This Agreement is effective on October 19, 2008 (i.e., the date on
which Consultant ceases to be an employee of the Company), and will continue in
effect for a period of twelve (12) months. 
The term of Agreement may be extended with the written agreement of both
parties.


 


SECTION 3.         ASSURANCES


 


The Company will do all things reasonably required in a prompt and
timely manner to enable the Consultant to provide the Services and to otherwise
perform his obligations pursuant to this Agreement.


 


SECTION 4.         COMPENSATION


 


For all Services rendered by the Consultant under this Agreement, the
Company will pay the Consultant Ten Thousand Dollars ($10,000) per month for
the term of this Agreement. At the Company’s request, the Consultant will
provide reasonable substantiation regarding time incurred in providing the
Services. Except pursuant to his Separation Agreement and General Release dated
as of September 19, 2008, as amended, the Consultant will under no
circumstances, including a legal finding regarding employee status, be entitled
to any other benefits or compensation from the Company, including any and all
employee benefit plans of the Company.


 

















 


SECTION 5.         ASSIGNMENT OF RIGHTS


 


The Consultant may not assign or delegate any of his rights or
obligations under this Agreement to any person without the prior written
consent of the Company, which the Company may withhold in its sole discretion.


 


SECTION 6.         AUTHORITY TO BIND COMPANY


 


The Consultant and the Company agree that the Consultant has no
authority to bind the Company as its agent, except as expressly agreed to by
the parties in a separate written agreement. The Consultant will not make any
representations, or take any actions, that would create the impression that he
has authority to bind the Company.


 


SECTION 7.         RELATIONSHIP BETWEEN PARTIES


 


The Consultant and the Company recognize and agree that the Consultant
is not an employee of the Company and is furnishing the Services as an
independent contractor. The Consultant may perform services for others during
those periods when the Consultant is not performing work under this Agreement
for the Company.


 


SECTION 8.         LIMITATIONS OF LIABILITY


 


The Consultant agrees to indemnify the Company against all liability or
loss, and against all claims or actions based on or arising out of damage or
injury (including death) to persons or property caused by or sustained in
connection with his performance of this Agreement or by conditions created
thereby, or based on his violation of any statute, ordinance, or regulation,
and agrees to indemnify the Company against the cost of defending any such
claims or actions.


 


SECTION 9.         REPRESENTATIONS AND WARRANTIES


 


The Consultant represents and warrants to the Company that there is no
employment contract, consultant agreement, or any other contractual obligation
to which the Consultant is subject that prevents the Consultant from entering
into this Agreement or from performing fully the Services under this Agreement.


 


SECTION 10.       CONFIDENTIAL INFORMATION AND
INVENTIONS


 


As used in this Agreement, the term “Confidential
Information” means: (a) proprietary information of the Company;
(b) information marked or designated by the Company as confidential; (c) information,
whether or not in written form and whether or not designated as confidential,
that is known or should reasonably be known to the Consultant as being treated
by the Company as confidential; and (d) information provided to the Company
by third parties that the Company is obligated to keep confidential.
Confidential Information includes, but is not limited to, discoveries, ideas,
designs, drawings, specifications, techniques, models, data, programs,
documentation, processes, know-how, customer lists, marketing plans, and
financial and technical information. The term “Confidential Information” shall
not include any information that the Company now or hereafter voluntarily
disseminates to the public or that otherwise becomes part of the public domain
through lawful means.


 


The Consultant agrees and acknowledges that all Confidential
Information is and shall continue to be the exclusive property of the Company,
whether or not prepared in whole or in part by the Consultant. The Consultant
agrees not to disclose Confidential Information, directly or indirectly, under
any circumstances or by any means, to any third person without the express
written consent of the Company, and also to comply with all Company policies
and procedures for the protection of 


 

















 


Confidential Information. Upon expiration of this Agreement, or
otherwise as requested, the Consultant will deliver promptly to the Company all
Confidential Information, in whatever form, that may be in his possession or
under his control.


 


The Consultant agrees that all inventions, whether patentable or not,
conceived or made or reduced to practice by the Consultant during or in
connection with his performance of this Agreement will be promptly and fully
disclosed to the Company or its nominee. The Consultant hereby assigns and
agrees to assign all of his rights or interests in any inventions, whether
patentable or not, conceived or made or reduced to practice by him during or in
connection with his performance of this Agreement which: (i) relate to the
thin-film photovoltaic technology; (ii) relate to business known by the
Consultant to be anticipated business of the Company; (iii) relate to any
actual or demonstrably anticipated research or development work of the Company;
(iv) result from any work performed by the Consultant for the Company; or (v) were
invented using either the Company’s equipment, supplies, facility, time, or
Confidential Information. The Consultant agrees to assist the Company in every
proper way (entirely at the Company’s expense) to obtain patents on any
inventions assigned to the Company and that the Company, in its sole
discretion, seeks to patent. Further, the Consultant agrees that all creative
work prepared or originated by the Consultant for the Company under this
Agreement that may be subject to or eligible for protection under federal
copyright laws, constitutes work made for hire, all rights to which are owned
by the Company; and the Consultant hereby assigns to the Company all rights,
title, and interest, whether by way of copyright, trade secret, or otherwise,
in all such work, whether or not subject to protection by copyright laws.


 


The Consultant acknowledges that any disclosure of Confidential
Information will cause irreparable harm to the Company. In the event of a
breach of these obligations, the Company will be entitled to: (a) specific
performance, including immediate issuance of a temporary restraining order or
preliminary injunction enforcing this section of this Agreement; (b) a
judgment for damages caused by the Consultant’s breach; and (c) any other
remedies provided by applicable law or equity. The obligations set forth in
this section will continue and survive this Agreement  for as long as the Consultant possesses
Confidential Information.


 


SECTION 11.       MISCELLANEOUS PROVISIONS


 


11.1        Binding Effect. This
Agreement will be binding on and inure to the benefit of the parties and their
respective heirs, personal representatives, successors, and permitted assigns.


 


11.2        No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or will be
construed to confer on any person, other than the parties to this Agreement,
any right, remedy, or claim under or with respect to this Agreement.


 


11.3        Amendments. This
Agreement may be amended only by an instrument in writing executed by both
parties.


 


11.4        Construction. The
captions used in this Agreement are provided for convenience only and will not
affect the meaning or interpretation of any provision of this Agreement.


 


11.5        Counterparts. This
Agreement may be executed in counterparts, each of which will be considered an
original and all of which together will constitute one and the same agreement.


 


11.6        Facsimile Signatures.
Facsimile transmission of any signed original document, and retransmission of
any signed facsimile transmission, will be the same as delivery of an original.
At the request of any party, the parties will confirm facsimile transmitted
signatures by signing an original document.


 


11.7        Waiver. Any
provision or condition of this Agreement may be waived at any time, in writing,
by the party entitled to the benefit of such provision or condition. Waiver of
any breach of any provision will not be a waiver of any succeeding breach of
the provision or a waiver of the provision itself or any other provision.


 

















 


11.8        Injunctive and Other Equitable Relief. The parties agree that the remedy at law for
any breach or threatened breach by a party may, by its nature, be inadequate,
and that the other parties will be entitled, in addition to damages, to a
restraining order, temporary and permanent injunctive relief, specific
performance, and other appropriate equitable relief, without showing or proving
that any monetary damage has been sustained.


 


11.9        Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
state of Colorado, without regard to conflict-of-laws principles.


 


11.10      Arbitration. Any
dispute or controversy arising under or in connection with this Agreement will
be settled exclusively by arbitration in Denver, Colorado, in accordance with
the rules of the American Arbitration Association then in effect by an
arbitrator selected by both parties within 10 days after either party has
notified the other in writing that it desires a dispute between them to be
settled by arbitration. In the event the parties cannot agree on such
arbitrator within such 10-day period, each party will select an arbitrator and
inform the other party in writing of such arbitrator’s name and address within
5 days after the end of such 10-day period and the two arbitrators so selected
will select a third arbitrator within 15 days thereafter; provided, however,
that in the event of a failure by either party to select an arbitrator and
notify the other party of such selection within the time period provided above,
the arbitrator selected by the other party will be the sole arbitrator of the
dispute. Subject to subsection 11.11 of this Agreement, each party will pay its
own expenses associated with such arbitration, including the expense of any
arbitrator selected by such party and the Company will pay the expenses of the
jointly selected arbitrator. The decision of the arbitrator or a majority of
the panel of arbitrators will be binding upon the parties and judgment in
accordance with that decision may be entered in any court having jurisdiction
thereover. Punitive damages will not be awarded.


 


11.11      Attorney Fees. If
any arbitration, suit, or action is instituted to interpret or enforce the
provisions of this Agreement, to rescind this Agreement, or otherwise with
respect to the subject matter of this Agreement, the party prevailing on an
issue will be entitled to recover with respect to such issue, in addition to
costs, reasonable attorney fees incurred in the preparation, prosecution, or
defense of such arbitration, suit, or action as determined by the arbitrator or
trial court, and if any appeal is taken from such decision, reasonable attorney
fees as determined on appeal.


 


11.12      Severability. If any
provision of this Agreement is invalid or unenforceable in any respect for any
reason, the validity and enforceability of such provision in any other respect
and of the remaining provisions of this Agreement will not be in any way
impaired.


 


11.13      Entire Agreement.
This Agreement (including the documents and instruments referred to in this
Agreement) constitutes the entire agreement and understanding of the parties
with respect to the subject matter of this Agreement and supersedes all prior
understandings and agreements, whether written or oral, among the parties with
respect to such subject matter.


 


The parties enter into this Agreement as of the date first written
above.


 


 


	
  CONSULTANT

  	
   

  	
  ASCENT SOLAR TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Matthew
  Foster

  	
   

  	
  By:

  	
  /s/ Mohan Misra

  
	
  MATTHEW
  FOSTER

  	
   

  	
   

  	
  Print
  name: Mohan Misra

  
	
   

  	
   

  	
   

  	
  Title: Chairman,
  President & CEO