Exhibit 10.48


 


EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)  is entered into as of September 25, 2008 (the “Effective Date”), by and between Ascent Solar Technologies, Inc.,
a Delaware corporation (the “Company”), and
Bruce I. Berkoff (the “Executive”).


 


RECITALS


 


A.            The Company
desires to employ and retain the unique experience, abilities, and services of
the Executive as Chief Marketing Officer.


 


B.            The Executive
agrees to perform the services of Chief Marketing 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 September 29, 2008 (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 as are specified from
time to time by the Board of Directors of the Company (the “Board”) and/or the chief executive officer of the Company
(the “CEO”). 
The Executive shall report to the CEO. Among other things, and subject
to change at the discretion of the Board of Directors, the Executive shall be
responsible for providing direction to and management of the Company’s
marketing and advertising strategies and activities. During
the term of this Agreement, the Executive will not render commercial or
professional services of any nature to any other person or organization,
whether or not for compensation, without the prior written consent of the Board
or CEO.


 


3.             Compensation.


 


a)             Base Compensation.  In consideration of all services to be
rendered by the Executive to the Company as an employee under this Agreement,
the Company will pay to the Executive the base salary of $6,731.20 bi-weekly
from the Start Date through the termination of this Agreement and any
extensions of it (annualized salary shall be equal to 26 times the bi-weekly
rate and is referred to herein as “Base Salary”),
payable in accordance with the Company’s standard payroll practices, and
subject to review annually.


 


b)             Bonus
Compensation.  As further
compensation, the Company may pay to the Executive an annual cash bonus of up
to thirty percent (30%) of Base Salary, at such times 


 


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and in such amounts as the Board and its Compensation Committee may
determine in their discretion based on the Executive’s individual performance
and the overall performance of the Company;


 


c)             Equity Compensation.  As further compensation, upon approval by the
Board (or, if at the direction of the Board, upon approval by the Board’s
Compensation Committee), on or after the Start Date, the Company will grant the
Executive options to purchase up to one hundred thousand (100,000) shares of
the Company’s common stock (the “Stock Options”),
vesting annually in co-equal amounts over four (4) years from the date of
grant, at an exercise price equal to the closing price of the Company’s common
stock on the Nasdaq Global Market (or such other primary exchange or quotation
facility on which the Company’s common stock is listed) on the date of
grant.  The Stock Options shall be
governed by and issued under the Company’s 2005 Stock Option Plan, as amended.


 


Notwithstanding the foregoing, all unvested Stock Options shall
automatically vest upon a Change of Control, where a “Change of
Control” shall mean:


 


i.             any
one person, or more than one person acting as a group, acquires ownership of
stock of the Company that, together with stock held by such person or group,
possesses more than 50 percent of the total fair market value or total voting
power of the stock of the Company; provided, however, that if any one person,
or more than one person acting as a group, is considered to own more than 50 percent
of the total fair market value or total voting power of the stock of the
Company, the acquisition of additional stock by the same person or persons will
not be considered a Change in Control. 
Notwithstanding the foregoing, an increase in the percentage of stock of
the Company owned by any one person, or persons acting as a group, as a result
of a transaction in which the Company acquires its stock in exchange for
property will be treated as an acquisition of stock of the Company for purposes
of this subsection (i);


 


ii.   during
any period of 12 consecutive months, individuals who at the beginning of such
period constituted the Board (together with any new or replacement directors
whose election by the Board, or whose nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the directors then in office; or


 


iii.  any
one person, or more than one person acting as a group, acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by the person or persons) assets from the Company, outside of the
ordinary course of business, that have a gross fair market value equal to or
more than 50 percent of the total gross fair market value of all of the assets
of the Company immediately prior to such acquisition or acquisitions.  For purposes of this subsection


 


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(iii), “gross fair market value”
means the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such
assets.  Notwithstanding anything to the
contrary in this Agreement, the following shall not be treated as a Change in
Control under this subsection (iii): (A) a transfer of assets from the
Company to a shareholder of the Company (determined immediately before the
asset transfer); (B) a transfer of assets from the Company to an entity,
50 percent or more of the total value or voting power of which is owned,
directly or indirectly, by the Company; (C) a transfer of assets from the
Company to a person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value or voting power
of all the outstanding stock of the Company; or (D) a transfer of assets
from the Company to an entity, at least 50 percent of the total value or voting
power of which is owned, directly or indirectly, by a person described in (iii)(C) above.


 


d)             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.


 


e)             Relocation
Expenses.  The Company will reimburse
the Executive for all reasonable and documented moving expenses (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 to Littleton, Colorado or its environs. 
In connection with such relocation, the Company also will reimburse the
Executive for reasonable and documented costs incurred for temporary housing
for up to two (2) weeks while the Executive searches for permanent
housing.


 


f)             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 or CEO, 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 disclosed to
Executive by the Company either directly or indirectly in writing, orally 


 


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or by drawings or observation of parts or equipment. 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 or
concurrent 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.


 


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 notice or compensation to the Executive. 
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 or misdemeanor, or any crime involving moral turpitude, (ii) a
material breach by Executive of his obligations under this Agreement, which
will include a failure to perform such duties as are reasonably assigned to the
Executive by the Board, (iii) any act by Executive of disloyalty to the
Company, or (iv) any violation of Executive’s 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 may be 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.


 


d)             Death.  If the Executive dies, this Agreement
will automatically terminate.


 


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6.             Compensation Upon
Termination.


 


a)             Termination
for Cause.  If the Company terminates
the Executive for Cause pursuant to Section 5(a) or if the Executive
terminates without Cause pursuant to Section 5(b), the Company will pay
the Executive only his Base Salary accrued through the date of termination.


 


b)             Termination
Without Cause.  If, on or before the
first anniversary of the Effective Date, the Company terminates the Executive
without Cause pursuant to Section 5(b), the Company will pay the Executive
his Base Salary for a period of six (6) months after the date of
termination in accordance with the
Company’s standard payroll practices. If, after the first anniversary of
the Effective Date, the Company terminates the Executive without Cause pursuant
to Section 5(b), the Company will pay the Executive his Base Salary for a
period of twelve (12) months after the date of termination in accordance with the Company’s standard
payroll practices.


 


c)             Disability.  During any period that the Executive
fails to perform his duties and responsibilities hereunder as a result of
incapacity due to physical or mental illness, the Executive will continue to
receive his Base Salary until the Executive’s employment is terminated pursuant
to Section 5(c) and thereafter the Executive will receive any
disability insurance benefits to which the Executive is entitled.


 


d)             Death.  If this Agreement terminates due to the
death of the Executive, then any interests that the Executive may have under
the provisions of this Agreement will be payable to the Executive’s estate
inclusive of Base Salary provided for in this Agreement as if the Executive
terminated his employment without Cause.


 


7.             Board
Approval.  No part of this
Agreement will be effective or binding upon the parties unless and until
approved or ratified by the Board.


 


8.             Successors.  The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place.


 


9.             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. Each party will pay its own expenses associated with
such arbitration, including the expense of any arbitrator selected by such
party 


 


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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.


 


10.          Absence
of Conflict.  The Executive
represents and warrants that his employment by the Company as described herein
will not conflict with and will not be constrained by any prior employment or
consulting agreement or relationship.


 


11.          Assignment.  This Agreement and all rights under this
Agreement will be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees, successors
and assigns. This Agreement is personal in nature, and neither of the parties
to this Agreement will, without the written consent of the other, assign or
transfer this Agreement or any right or obligation under this Agreement to any
other person or entity; except that the Company may assign this Agreement to
any of its affiliates or wholly-owned subsidiaries, provided, that such
assignment will not relieve the Company of its obligations hereunder.


 


12.          Integration.  This Agreement represents the entire
agreement and understanding between the parties as to the subject matter hereof
and supersede all prior or contemporaneous agreements whether written or oral.
No waiver, alteration, or modification of any of the provisions of this Agreement
will be binding unless in writing and signed by duly authorized representatives
of the parties hereto.


 


13.          Waiver.  Failure or delay on the part of either party
hereto to enforce any right, power, or privilege hereunder will not be deemed
to constitute a waiver thereof. Additionally, a waiver by either party or a
breach of any promise hereof by the other party will not operate as or be
construed to constitute a waiver of any subsequent waiver by such other party.


 


14.          Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or any other jurisdiction, but this Agreement will
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.


 


15.          Headings.  The headings of the paragraphs contained in
this Agreement are for reference purposes only and will not in any way affect
the meaning or interpretation of any provision of this Agreement.


 


16.          Applicable
Law.  This Agreement will be
governed by and construed in accordance with the internal substantive laws, and
not the choice of law rules, of the State of Colorado.


 


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17.          Counterparts.  This Agreement may be executed in one or more
counterparts, none of which need contain the signature of more than one party
hereto, and each of which will be deemed to be an original, and all of which
together will constitute a single agreement.


 


18.          Termination
of Prior Agreements.  Upon the
Effective Date of this Agreement, all prior and still existing employment or
consulting agreements between the Executive and the Company shall terminate.


 


19.          Compliance with Section 409A. 
Notwithstanding anything herein to the contrary, if the Executive is a “specified
employee” (as defined in Internal Revenue Code Section 409A) on the date
of termination, to the extent required by Internal Revenue Code Section 409A,
payments hereunder shall be delayed until the earlier of (i) the date
which is six (6) months after the date of termination or, (ii) the
date of the Executive’s death.”


 


IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the Effective
Date.


 


 


	
  COMPANY:

  	
  ASCENT SOLAR TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dr. Mohan Misra

  
	
   

  	
  Name: Dr. Mohan Misra

  
	
   

  	
  Title: Chairman, President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXECUTIVE:

  	
    /s/ Bruce I. Berkoff

  
	
   

  	
  Bruce I. Berkoff

  



 


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