Exhibit 10.1


 


 


 


SEPARATION
AGREEMENT AND RELEASE OF ALL CLAIMS


 


This Separation
Agreement and Release of All Claims (the “Agreement”) between Michael Gilbreth (“Employee”) and
Ascent Solar Technologies, Inc. (the “Company”) sets forth the agreed upon terms and conditions concerning Employee’s
separation from the Company. These terms and conditions are as follows:


 


1.
Employment Resignation; Termination of Benefits. Employee resigned from his employment with the Company effective as of
December 11, 2022 (the “Resignation Date”). Employee’s Company-sponsored healthcare coverage will terminate as
of the last day of the month of the Resignation Date. Thereafter, Employee will be eligible to continue healthcare coverage for up to
18 months pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or applicable state law (“COBRA”)
and in accordance with the COBRA premium payment terms as specified in Paragraph 2, below. All other Company-sponsored benefits will terminate
effective as of the Resignation Date.


 


2.
Separation Benefits. In consideration for Employee entering into and not revoking this Agreement, the Company shall provide
the following “Separation Benefits” to Employee: (a) payment of ten (10) weeks’ salary equal to $35,576.92, fifty
percent (50%) of which ($17,788.46) shall be payable on the first payroll period after the Effective Date of this Agreement (as defined
in Section 9), and the remaining fifty percent (50%) of which shall be payable on the next payroll period; and (b) payment of a
bonus, which equals 60% of Employee’s current salary, or $111,000, one-third (1/3) of which ($37,000) shall be payable with the
December 28, 2022 payroll date, another one-third (1/3) of which ($37,000) shall be payable beginning the first payroll period after January
31, 2023, and the remaining one-third (1/3) of which ($37,000) shall be payable on the first payroll period after the filing by the Company
of its Annual Report on Form 10-K for the year ending December 31, 2022. All such Separation Benefits will be subject to all legal and
customary withholdings. Employee agrees that he will submit any and all necessary state and federal tax forms related to these Separation
Benefits. Employee acknowledges that the Company is not otherwise obligated to provide the Separation Benefits and is doing so only as
a term and condition of this Agreement.


 


3.
Final Compensation. As of the date of this Agreement, and except for the obligations created by this Agreement, for pending,
but earned salary and for outstanding PTO, Employee acknowledges and agrees Employee has been paid all compensation to which Employee
was entitled in connection with Employee’s employment with the Company, including wages and accrued vacation up to and including
the Separation Date.


 






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4.
Release and Discharge of Claims. In consideration for the promises and covenants contained herein, Employee irrevocably
and unconditionally releases and discharges the Company and all affiliated and related entities, and their respective agents, officers,
directors, shareholders, members, managers, employees, attorneys, insurers, subsidiaries, predecessors, successors and assigns (“Releasees”),
from any and all claims, liabilities, obligations, promises, causes of action, actions, suits, or demands, of whatsoever kind or character,
known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, arising from or relating to any omissions,
acts or facts that have occurred up until and including the date of this Agreement, including but not limited to those arising from or
related or attributable to Employee’s employment with the Company and Employee’s separation from such employment (“Claims”).
Such Claims include, but are not limited to, claims based upon any violation of the Company’s policies and regulations or any written
or oral contract or agreement between the Company and Employee; tort and common law claims including but not limited to claims for wrongful
or retaliatory discharge, emotional distress, defamation, slander, libel or false imprisonment, claims for attorneys’ fees, back
pay, front pay or reinstatement; claims based upon employment discrimination or harassment of any kind or nature, and claims based upon
alleged violation of: the Colorado Anti-Discrimination Act, the Lawful Off-Duty Activities Statute, the Personnel Files Employee Inspection
Right Statute, the Colorado Labor Peace Act, the Colorado Labor Relations Act, the Colorado Equal Pay Act, the Colorado Minimum Wage Order,
the Colorado Genetic Information Non-Disclosure Act, and any other labor related law in the State of Colorado, each as amended; the Equal
Pay Act of 1963, as amended (29 U.S.C. section 206(d) et. seq.); Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section
2000e et seq.); the Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. section 1001 et seq.); the Family Medical Leave
Act (29 U.S.C. section 2601 et seq.); the Fair Labor Standards Act of 1938, as amended (29 U.S.C. section 201, et seq.); the United States
Constitution; the Americans With Disabilities Act, as amended (42 U.S.C. section 12101, et seq.); 42 U.S.C. sections 1981 and 1983; State
or Federal wage and hour laws; or any other State, Federal or local statutes or laws. The provisions of this Section do not release claims
that cannot be released as a matter of law. However, Employee acknowledges that Employee is not entitled to any monetary damages resulting
from any such actions.


 


5.
Attorney Review. It is the Company’s sincere desire that Employee signs this agreement knowingly and voluntarily,
without coercion or duress. As such, Employee is hereby notified to have the right to have this Agreement reviewed by an attorney before
signing the Agreement. In addition, Employee has 7 days from the date that Employee signs this Agreement to revoke Employee’s consent.
If Employee revokes Employee’s consent to this Agreement, Employee will be ineligible to receive the additional payment described
in Section 2, above.


 


6.
No Admission of Liability. The parties understand, acknowledge and agree that this is a voluntary agreement, and that the
furnishing of consideration for this Agreement shall not be deemed or construed at any time or for any purpose as an admission of liability
by either party, each party expressly denying liability for any and all claims.


 


7.
No Claims Filed. Employee represents and warrants that as of the date Employee executed this Agreement, Employee has not
filed or lodged, or caused to be filed or lodged, any complaint, charge, cause of action, or claim of whatsoever kind or character, with
any court, administrative agency or other body or entity against Company or any of the Releasees. Employee further agrees that, to the
fullest extent permitted by law, Employee will not prosecute, nor allow to be prosecuted on Employee’s behalf, in any administrative
agency, whether state or federal, or in any court, whether state or federal, any claim or demand of any type related to the matters released
above, it being the intention of the parties that with the execution of this release the Released Parties will be absolutely, unconditionally
and forever discharged of and from all obligations to or on behalf of Employee related in any way to the matters discharged herein.


 






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In addition, Employee acknowledges that as of
the date he signed this Agreement, he (a) has not suffered a work-related injury or aggravation of same that he has not properly disclosed
to the Company; (b) that he has been paid or, will be paid pursuant to the terms of this Agreement in full, all wages, bonuses, incentive
compensation, severance pay, vacation pay and commissions due and owing him for any and all work performed for the Company; (c) that he
has disclosed to the Company all material facts which are or were damaging or potentially damaging to the Company; (d) and that he is
not aware of any action/inaction he or any other Company employee took or failed to take during his employment with the Company that could
give rise to a claim against the Company and/or any other third party and; (e) that he has received all leaves of absence (including FMLA
leave) to which he would have been entitled under applicable laws.


 


8.
Review of Agreement. Employee acknowledges that Employee was provided a copy of this Agreement on December 6, 2022. To accept
this Agreement, the Agreement, signed and dated by Employee, must be received by Jeffrey Max, Chief Executive Officer, within twenty-one
(21) days of Employee’s receipt as stated in Section 9 below. If the executed Agreement is not received as provided in Section
9, then the Agreement will no longer be open for acceptance by Employee, and will be of no further force or effect without any further
action by the Company.


 


9.
Acknowledgment of Rights and Waiver of Claims Under the Age Discrimination In Employment Act. Employee acknowledges and
agrees that Employee is knowingly and voluntarily waiving and releasing any rights that Employee may have under the Age Discrimination
in Employment Act of 1967. Employee also acknowledges that the consideration given for the waiver and release in this Agreement is in
addition to anything of value to which Employee already is entitled, and that, but for this Agreement, Employee would not be entitled
to the consideration set forth in Section 2 of this Agreement. Employee further acknowledges that Employee has been advised by
this writing that: (a) Employee’s waiver and release does not apply to any claims that arise after Employee’s execution of
this Agreement; (b) Employee should consult with an attorney prior to executing this Agreement; (c) Employee has twenty-one (21) calendar
days from Employee’s receipt of the Agreement to consider this Agreement (although Employee by Employee’s own choice may execute
this Agreement earlier); (d) changes to the terms of the Agreement, whether material or immaterial, will not restart this twenty-one (21)
day period; (e) Employee has seven (7) calendar days following Employee’s execution of this Agreement to revoke it in writing; and
(f) this Agreement shall not be effective and enforceable unless and until the seven (7) day revocation period has expired without revocation
of the Agreement by Employee (“Effective Date”). Employee may revoke this Release within seven (7) calendar days only by giving
the Company formal, written notice of Employee’s revocation of this Agreement (including, without limitation, by delivering such
notice by email) to Jeffrey Max, Chief Executive Officer, via email at jmax@ascentsolar.com. Such notice must be received by the Company
before the expiration of the seven (7) day revocation period referenced above. Neither the provisions of Section 4 or of this Section
9 release claims that cannot be released as a matter of law. The provisions of this Section 9 also do not preclude (1) filing suit to
challenge the Company’s compliance with the waiver requirements of the Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act, or (2) filing a charge with the Equal Employment Opportunity Commission. However, Employee acknowledges
that Employee is not entitled to any monetary damages resulting from any such actions.


 


10.
Confidentiality. The terms of this Agreement and content of the discussions pertaining to this Agreement shall be considered
and treated as confidential and Employee shall not discuss or otherwise disclose, in any manner, the fact of this Agreement and/or the
substance or content of discussions involved in reaching this Agreement to any person other than his attorney and tax advisors and as
required by appropriate taxing or other legal authorities.


 






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11.
Return of Property. Employee represents and acknowledges that Employee will return, within 10 days upon Company request,
to the Company all property of the Company in Employee’s possession or under Employee’s control, including but not limited
to files, laptop computer, all related software, office keys and credit cards. Employee further represents and warrants that Employee
will not retain, upon the Company’s request, any other Company property currently in Employee’s possession or under Employee’s
control, including hard copy or electronically stored documents, computer disks, written policies or procedures or other documents pertaining
to any past, present or known prospective clients of the Company, and that Employee has not given these or similar items to any third
party, except in the course and scope of Employee’s employment with the Company.


 


12.
Reasonable Cooperation and Non-disparagement. Employee agrees to communicate and cooperate with the Company in good faith
regarding the transition of his remaining duties and any pending or future Company issues of which Employee has knowledge or information.
Employee also agrees that Employee shall refrain from making, directly or indirectly, either orally or in writing, any disparaging statement
about any of the Releasees. This Section shall not apply (1) if Employee is compelled to testify in a legal proceeding, including any
legal proceeding between the parties to the Agreement or (2) as provided in Section 13 below.


 


13.
Government Authorities. Nothing in this Agreement shall be construed to prohibit Employee from filing a charge with or freely
participating in any investigation or proceeding conducted by any federal, state, or local government agency or authority. Notwithstanding
the foregoing, should Employee or anyone acting on Employee’s behalf, initiate any legal proceeding against the Releasees involving
any matter subject to the Release, Employee will not seek or accept any form of monetary relief in respect of such proceeding, except
that Employee may apply for and obtain a reward in respect of information provided to the Securities and Exchange Commission or other
government agency relating to alleged securities laws violations.


 


14.
Neutral Reference. Employee will inform any prospective employer to contact Jeffrey Max, Chief Executive Officer, regarding
any reference or other information pertaining to Employee. In response to any such inquiry, the Company will respond by confirming Employee’s
dates of employment, position and salary at the time of separation, and indicate that it is the Company’s policy not to release
any additional information.


 


15.
No Challenge to Claim for Unemployment Benefits. While the Company will provide any requested information in connection
with claims for unemployment insurance benefits, the Company will not challenge or otherwise contest Employee’s application for
such benefits.


 


16.
No Tax Advice; Indemnity. Employee hereby acknowledges that Employee has obtained no advice from the Company, and that neither
the Company, nor its employees, officers, directors, agents, representatives nor attorneys, have made any representation regarding the
tax consequences, if any, of the payment of the amounts payable pursuant to Section 2 of this Agreement. Employee agrees that Employee
is solely responsible for the payment of all taxes and other related contributions, if any, due as a result of the amounts paid by the
Company pursuant to Section 2 of this Agreement, and Employee agrees to defend, including payment of all related attorneys’
fees and costs, indemnify and hold harmless the Releasees against any and all claims which may be asserted by any taxing or other government
authority against the Releasees, or any of them, for taxes, withholding taxes, employer contributions, penalties, interest, and any other
assessment that may be asserted or levied by any tax or other government authority arising from or relating to the Company’s payment
of the amounts set forth in Section 2 of this Agreement.


 


17.
Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the parties and their respective
heirs, legal representatives, successors and assigns.


 






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18.
Attorneys’ Fees. In the event of a lawsuit or other proceeding in which any party to this Agreement claims a breach
of this Agreement, or seeks to enforce or interpret this Agreement, the prevailing party shall be entitled to an award for reasonable
attorneys’ fees and costs, together with any costs and expenses, incurred in connection with such dispute.


 


19.
Arbitration; Governing Law. The Company and Employee agree that final and binding arbitration shall be the sole recourse
to settle any claim or controversy arising out of or relating to a breach or the interpretation of this Agreement, except as either party
may be seeking injunctive relief. Either party may file a demand for arbitration. The arbitration shall be held at a mutually agreeable
location, and shall be subject to and in accordance with the Employment Arbitration Rules of the American Arbitration Association then
in effect; provided that if the location cannot be agreed upon the arbitration shall be held in Thornton, Colorado. The arbitrator may
award any and all remedies allowable by the cause of action subject to the arbitration, but the arbitrator’s sole authority shall
be to interpret and apply the provisions of this Agreement. In reaching its decision the arbitrator shall have no authority to change
or modify any provision of this Agreement or other written agreement between the parties. The arbitrator shall have the power to compel
the attendance of witnesses at the hearing. Any court having jurisdiction may enter a judgment based upon such arbitration. All decisions
of the arbitrator shall be final and binding on the parties without appeal to any court. Upon execution of this Agreement, the Employee
shall be deemed to have waived any right to commence litigation proceedings regarding this Agreement outside of arbitration or injunctive
relief without the express consent of the Company. The Company shall pay all arbitration fees and the arbitrator’s compensation.
If the Employee prevails in the arbitration proceeding, the Company shall reimburse to the Employee the reasonable fees and expenses of
Employee’s personal counsel for his or her professional services rendered to the Employee in connection with the enforcement of
this Agreement. Except to the extent that federal law controls, this Agreement is to be construed according to Delaware law.


 


20.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. The parties further agree that electronic or facsimile signatures
shall be deemed to be as effective and binding as original signatures hereto for all purposes.


 


21.
General Interpretation. The terms of this Agreement have been prepared by the parties to this Agreement and the language
used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent. This Agreement shall be
construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof
to be drafted, or in favor of the party receiving a particular benefit under this Agreement. If any term, provision, covenant or condition
of this Agreement shall be or become illegal, null, void or against public policy, or shall be held by any court of competent jurisdiction
to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected, impaired or invalidated thereby.


 


22.
Entire Agreement. Unless otherwise stated herein, this Agreement constitutes the complete understanding between the Company
and Employee. No other obligations or agreements shall be binding unless in writing and signed by these parties. Unless otherwise stated
herein, the parties represent to each other that they are not relying on any other agreement or oral representations not fully expressed
in this Agreement. Unless otherwise stated herein, this Agreement sets forth the entire Agreement between the parties hereto and fully
supersedes any and all prior agreements or understandings, written or oral, between the parties hereto pertaining to the subject matter
hereof.


 


[Signature page follows]


 


 




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THE
ABOVE TERMS AND CONDITIONS ARE HEREBY AGREED TO BY THE UNDERSIGNED PARTIES.











	ASCENT SOLAR TECHNOLOGIES, INC.	 	 	EMPLOYEE
	 	 	 	 
	/s/ Jeffrey Max	 	 	/s/ Michael Gilbreth
	Jeffrey Max

        Chief Executive Officer
	 	 	Michael Gilbreth


 


 


 


 


 


[Signature Page to Separation Agreement and
Release of All Claims]


 


 


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