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MUTUAL RELEASE AND RESCISSION OF AGREEMENT
This MUTUAL RELEASE AND RESCISSION OF AGREEMENT, (the "Agreement")
executed on December 17, 1999, between:
(i) Space Innovations Limited, a company incorporated in England and
Wales, ("SIL") of Xxx Xxxxxxx, Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx XX00, Xxxxxxx;
(ii) Persons whose names and address are shown in Exhibit A ("Former
SIL Shareholders");
(iii) SpaceDev, Inc., a company incorporated in Colorado, U.S.A.,
("SpaceDev") of 00000 Xxxxx Xx., Xxxxx, Xxxxxxxxxx, X.X.X.; and
(iv) Xxxxx X. Xxxxxx, an individual
The purposes of this Agreement is intended to effect the extinguishment
of obligations as herein designated.
RECITALS
WHEREAS, Disputes and differences have arisen between the above
referenced Parties with respect to that certain agreement in writing entered
into between the parties on or about October 1, 1998, and entitled "Common Stock
Exchange Agreement" (hereinafter the "Stock Agreement"). Said Stock Agreement is
incorporated by reference, and is hereby made a part of this release;
WHEREAS, The parties desire to resolve their disputes and differences,
and wish to express their interest in working to cooperatively develop mutually
beneficial and positive future working relations;
WHEREAS, The parties recognize that the principal basis for the
disputes and differences underlying this Agreement relate to statutory and
regulatory rules, including those statutes and regulations concerning the
transfer of technology overseas and as between parent and subsidiary
corporations, which adversely effect the ability of the Parties to realize the
benefits contemplated upon execution of the Stock Agreement;
WHEREAS, The parties have agreed to execute this Agreement in
settlement of such disputes and differences with the intent to allow SpaceDev
and SIL to separately continue their business and operations.
WHEREAS, The parties accept that various aspects of the Stock Agreement
have not been performed including the fact that SpaceDev has not been registered
as the holder of the shares in SIL and SpaceDev has not delivered shares to
former SIL shareholders in accordance with the Stock Agreement. Also SIL shares
have not been forwarded to SpaceDev in accordance with the Stock Agreement.
ARTICLE 1
RELEASE
1.1 In consideration of the mutual relinquishment of their respective
legal rights with reference to the above-mentioned disputes and differences, and
in consideration of the execution of this mutual release, covenants by the
parties and the payment of Two-Hundred and Eight Thousand pounds
((pound)208,000.00 U.K.) according to the terms of the Secured Promissory Note
attached as Exhibit B and incorporated herein by this reference, each Party
expressly releases the other, together with its officers, directors, employees,
trustees, successors, assigns, agents, employees and legal representatives, from
all liability for claims and demands arising out of the Stock Agreement or out
of the management or operation of SpaceDev or SIL up to the date of this
Agreement.
1.2 The Parties acknowledge that they may hereafter discover facts in
addition to or different from those which they now know or believe to be true
with respect to the Stock Agreement, or the subject matter of this Agreement,
but it is their intention to fully and finally and forever settle and release
all matters, disputes and differences, known and unknown, suspected and
unsuspected, which now exist, may exist or heretofore have existed between them.
In furtherance of this intention, the releases herein shall be and will remain
in effect as full and complete general releases, except as otherwise provided
herein, notwithstanding the discovery or existence of any such additional or
different facts.
ARTICLE 2
RESCISSION OF CONTRACT AND COVENANTS
2.1 The Parties mutually agree that the above-mentioned Stock Agreement
entered into between the Parties on or about October 1, 1998, shall be and is
hereby rescinded, terminated and cancelled as of the date first written above.
2.2 Receipts from the assignment of proceeds from the FEDSAT Contract
shall be used to pay down the existing First National Bank ("FNB") line of
credit due and outstanding (principal, accrued interest, and other costs) from
the date of this Agreement. The line of credit shall remain unchanged as
existing between FNB and SIL. SIL agrees that the existing balance will be
reduced by twenty-five percent (25%) of the value of each FedSat invoice payment
processed through the said line of credit until the line is paid down to zero.
SIL agrees that it shall pay all interest expense associated with balance on the
line of credit during the payoff process.
2.3 Upon the full payment of all outstanding amounts related to the
line of credit at First National Bank or any other applicable financial
institution, SIL agrees to cause the extinguishment of any guarantee or
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indemnity by SpaceDev and or Xxxxx X. Xxxxxx as the guarantor or indemnitor
provided that, if Clause 2.2 is complied with, neither SpaceDev nor Xxxxx X.
Xxxxxx shall terminate or attempt to terminate or revoke their existing
guarantees in respect to the line of credit.
2.4 All proprietary information, IPR and all technical documentation
previously supplied to SpaceDev or SIL and copies thereof, shall be returned to
the originating party within ten (10) days from the date first written above.
ARTICLE 3
GENERAL PROVISIONS
3.1 In entering and making this Agreement, the Parties assume the risk
of any mistake of fact or law. If the Parties, or any of them, should later
discover that any fact they relied upon in entering this Agreement is not true,
or that their understanding of the facts or law was incorrect, the Parties shall
not be entitled to seek rescission of this Agreement by reason thereof. This
Agreement is intended to be final and binding upon the Parties regardless of any
mistake of fact or law.
3.2 Neither the negotiation nor the execution of this Agreement, nor
anything contained or incorporated herein shall be deemed or otherwise alleged
to constitute, any admission or concession of liability or wrongdoing on the
part of any Party, or any other form of admission with respect to any matter,
thing or dispute whatsoever. Any such liability or wrongdoing is expressly
denied.
3.3 Each Party warrants that it is represented by competent counsel
with respect to this Agreement and all matters covered by it, and it has been
fully advised by said counsel with respect to its rights and obligations and
with respect to the execution of this Agreement. SIL and the former SIL
Shareholders are not conversant on California Laws.
3.4 Each Party warrants that no promise, inducement or agreement not
expressed herein has been made in connection with this Agreement. This Agreement
constitutes the entire agreement between the Parties and supercedes and replaces
all prior negotiations or proposed agreements, written or oral.
3.5 This Agreement may not be altered, amended, modified or otherwise
changed in any respect whatsoever except by a writing duly executed by an
authorized representative of each of the Parties.
3.6 The language of this Agreement shall be construed as a whole,
according to its fair meaning and intendment, and not strictly for or against
any Party, regardless of who drafted or was principally responsible for drafting
the Agreement or any specific term or condition hereof. This Agreement shall be
deemed to have been drafted by all Parties, and no Party shall urge otherwise.
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3.7 The headings in this Agreement are for convenience only. They in no
way limit, alter or affect the meaning of this Agreement.
3.8 This Agreement shall be construed and enforced pursuant to the laws
of the State of California and SpaceDev warrants that this Agreement is assumed
enforceable under California laws.
3.9 Should any provision of this Agreement be held illegal, such
illegality shall not invalidate the whole of this Agreement; instead, the
Agreement shall be construed as if it did not contain the illegal part, and the
rights and obligations of the Parties shall be construed and enforced
accordingly.
3.10 This Agreement may be executed in multiple originals, each of
which is equally admissible in evidence and shall be deemed to be one and the
same instrument. This Agreement shall not take effect until each Party has
signed a counterpart. It shall only be necessary to produce one of such
counterpart in making proof of this Agreement. It is further agreed that a
facsimile signature shall be deemed an original.
3.11 Each Party shall pay its own expenses incident to the transaction
contemplated by this Agreement, including but not limited to the fees, expenses
and disbursements of their respective advisors, accountants and counsel.
Further, each Party shall pay its own costs, including any regulatory costs, tax
or duty associated with the transfer or cancellation of any shares contemplated
by this Agreement.
3.12 Each Party represents and warrants that it has the full power and
authority to enter into this Agreement and to perform all transactions, duties
and obligations herein set forth. Each signatory to this Agreement who signs on
behalf of a Party represents and warrants that he or she has the authority to
sign on behalf of that Party.
3.13 Each Party recognizes that certain Former SIL Shareholders who are
intended signatories to this Agreement currently live abroad, outside of the
United States and/or the United Kingdom. Further, each Party recognizes that
receipt of the signatures from said Former SIL Shareholders may delay execution
of the agreement by all Parties, and that accordingly provisions are
appropriately made to address and ameliorate the effects of any delay.
Therefore, the following additional representations and agreements are made.
a) SIL represents, by and through the signature of its agent
below, that all Former SIL Shareholders approve of this Agreement, including all
those Former SIL Shareholders living abroad and/or those whose signatures are
not obtained by Friday, December 17, 1999. Further, SIL represents it will
exercise its best efforts to secure the signatures of all Former SIL
Shareholders, including those living abroad, and that said signatures shall be
obtained by SIL, at its expense, no later than 12:00 am Greenwich, England time
December 24, 1999. Until such time as SIL is able to obtain signatures from all
Former SIL Shareholders, SIL agrees that it will not recapitalize, or offer any
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shares of its stock for sale without the express written consent SpaceDev.
Such consent from SpaceDev shall not be unreasonably withheld.
b) Each Party signing this Agreement, whether such signature
is provided in an individual or representative capacity, agrees to be bound and
beholden to the Agreement as against every other Party who has signed this
Agreement, notwithstanding the absence of the signature(s) of one or more Former
SIL Shareholders; provided however that this provision shall remain ineffective
until SIL, SpaceDev and a majority of Former SIL Shareholders have signed this
Agreement.
3.14 On or about the execution date of this Agreement, SpaceDev shall
issue a press release or make a public statement concerning the mutual release
and rescission of the Stock Agreement which shall be previously agreed by SIL as
to its contents and wording. Neither party shall make any announcement of such
transaction or disclose the existence of and/or particulars of any negotiations
related thereto, including, but not limited to, the terms, conditions, or other
facts related to this Agreement or the Stock Agreement without the express
written approval and consent of the other parties. The former SIL Shareholders
hereby authorize SIL to give such consent on their behalf. Notwithstanding the
above condition, should SpaceDev reasonably believe that any information
regarding this Agreement or its prior dealings with SIL must be disclosed due to
SEC Regulations or Rulings, in the sole interpretation of SpaceDev, then
SpaceDev shall be entitled to make any such required public announcement without
the requirement of written consent of SIL. Notwithstanding the above condition,
should SIL reasonably believe that any information regarding this Agreement or
its prior dealings with SpaceDev must be disclosed due to any United Kingdom
Regulations or Rulings, in the sole interpretation of SIL, then SIL shall be
entitled to make any such required public announcement without the requirement
of written consent of SpaceDev.
3.15 Upon the execution of this Agreement, the Parties agree that it
shall not make any defamatory or disparaging statements, either orally or in
writing, about the parties to this Agreement, its businesses, products and
services or officers or directors of the parties or affiliates or subsidiaries.
The word "disparage" shall mean making comments to a person not a party to this
Agreement which would be actionable under legal principles of defamation or
which may materially cause damage to the reputation of a party to this
Agreement.
IN WITNESS HEREOF, each of the parties hereto has caused this Agreement
to be executed by its duly authorized officers as of the day and year first
written above.
SPACE INNOVATIONS LIMITED
a United Kingdom Corporation
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Director
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/s/ Xxxxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx Xxx
------------------------------------
Xxxxxx Xxxxx Xxx
/s/ Xxxxxx Xxxxxxx Xxxxxxx Xxxx
------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx Xxxx
/s/ Xxxx Xxxxx Xxxxxx
------------------------------------
Xxxx Xxxxx Heelas
/s/ Xxxx Xxxxx Xxxxxxxx
------------------------------------
Xxxx Xxxxx Xxxxxxxx
/s/ Xxxxxx Kit Xxxxx Xxxx
------------------------------------
Xxxxxx Kit Xxxxx Xxxx
/s/ Xxxxx Xxxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxx Xxxxxxxx
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/s/ Xxxxxxx Xxx Xxxx
------------------------------------
Xxxxxxx Xxx Xxxx
/s/ Xxxxx Xxxxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxxx Xxxxxx
SPACEDEV, INC.,
a Colorado corporation
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx, President
Xxxxx Xxxxxx, an individual
/s/ Xxxxx Xxxxxx
------------------------------------
XXXXX XXXXXX
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EXHIBIT A
FORM SPACE INNOVATIONS LIMITED SHAREHOLDERS
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NAME ADDRESS
---------------------------------- -------------------------------------------------------
Xxxxxxxxx Xxxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxx
XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxxx Xxxxxxxx 00 Xxxxxxxxxxx Xxxx, Xxxx Xxxxx,
Xxxxx XX0 0XX
---------------------------------- -------------------------------------------------------
Xxxxxx Xxxxx Xxxxxxxxxx Xxxxx Peel Cottage, Butt Street, Ludgershall, Andover,
Hants SP11 9QQ
---------------------------------- -------------------------------------------------------
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxx, Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx, Xxxxx
XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxx Xxxxxxx Xxxxxxxx 00 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxx Xxxxxxx Xxxxxxx 00 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxx XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxxxx Xxxxx Xxx 0 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxx XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx Xxxx "Talisker", Graces Lane, Chieveley, Newbury, Berks
XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxx Xxxxx Xxxxxx 00 Xxxxxxxxxx Xxxx, Xxxxxxx
Xxxxx XX0 0XX
---------------------------------- -------------------------------------------------------
Xxxx Xxxxx Xxxxxxxx Xxxxxxxxxxx, Wildhern, Andover, Hampshire SP11 OJE
---------------------------------- -------------------------------------------------------
Xxxxxx Kit Xxxxx Xxxx 00 Xxxxxxx Xxxx, Xxxx Xxxx
---------------------------------- -------------------------------------------------------
Xxxxx Xxxxxx Xxxxxxxx 0 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxxxxx Xxx Xxxx 00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxx, Xxxx XX00 0XX
---------------------------------- -------------------------------------------------------
Xxxxx Xxxxxxx Xxxxxx 6 Xxxx Close, Fairacres, Woolton Hill, Newbury, Berks
XX00 0XX
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EXHIBIT B
PROMISSORY NOTE
---------------
(pound)208,000.00 DECEMBER 17, 1999
1. AGREEMENT TO PAY. As stated in this Note, for value received, Space
Innovations Limited, a company incorporated in England and Wales, ("Maker").
promises to pay to SpaceDev, Inc., a Colorado corporation ("Holder"), the
principal sum of Two Hundred Eight Thousand Pounds (pound)208,000.00), in
twenty-four (24) monthly equal installments of (pound)8,666.67 beginning March
20, 2000.
2. PREPAYMENT. The privilege is reserved to make, at any time(s), without
penalty or charge, prepayments of the amount due and outstanding.
3. PROMPT PERFORMANCE Upon failure to make a punctual payment required by
this Note, or upon the breach of Maker under the Mutual Release and Rescission
of Agreement of even date herewith. Holder shall give Maker seven (7) days
notice of Holder's intent to declare this Note due in full. If Maker does not
make the required payment within thirty (30) days, then, without further notice
to Maker, Holder may declare the Note due in full and take the appropriate
action deemed by Holder to be in its best interest to enforce the terms of this
Note. Waiver of the right to so accelerate the maturity of obligations hereunder
will be effective only if set forth in a written instrument signed by Holder;
failure to exercise, or delay in exercising, the right will not be construed as
a waiver of the right.
4. LATE CHARGE. Maker acknowledges that if any amount is not paid when due,
Holder will incur additional costs. The exact amount of these additional costs
(which include, but are not limited to, processing and accounting charges as
well as loss of the use of the money due) is difficult and impracticable to
assess. Maker acknowledges that a sum equal to 4% of the late payment is, under
the circumstances existing at the time this Note is made, a reasonable late
charge, and Maker will pay the late charge when due. The late charge will become
immediately due ten (10) days after the mailing to Maker, or any other person
known by Holder to be liable for the payment of this Note, of written notice of
the delinquency of the payment.
5. LAWFUL MONEY, WAIVER, ETC. Payments due under this Note will be paid in
lawful money of the United Kingdom. Every party who is now or hereafter becomes
liable for the payment of this Note waives diligence, presentment. protest,
demand for payment, notice of protest. dishonor and notice of nonpayment of this
Note.
6. ATTORNEYS' FEES. If Holder (i) commences a judicial action or
nonjudicial proceeding on this Note or (ii) engages an attorney to appear in any
judicial action or nonjudicial proceeding commenced by any person concerning
this Note. Maker will pay reasonable attorneys' fees.
7. GENERAL PROVISIONS. "Holder" includes each successor holder of this
Note. Captions in this Note are for convenience only and do not define, describe
or limit the scope or intent of this Note.
MAKER: HOLDER:
SPACE INNOVATIONS LIMITED SPACEDEV, INC.
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxx X. Xxxxxx
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Xxxxxx Xxxxxxxx, Director Xxxxx X. Xxxxxx, Chairman