SEPARATION AGREEMENT AND GENERAL RELEASE
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THIS SEPARATION AGREEMENT AND GENERAL RELEASE (hereinafter "AGREEMENT") is
made and entered into by and between Xxxxx Xxxxxxx XxXxx ("XxXxx") and SpaceDev,
Inc. ("EMPLOYER"), and inures to the benefit of each of EMPLOYER's current,
former and future parents, subsidiaries, related entities, employee benefit
plans and their fiduciaries, predecessors, successors, officers, directors,
shareholders, agents, employees and assigns.
RECITALS
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X. XxXxx has been, for just under three months, an employee of
EMPLOYER, most recently as its Vice President of Engineering;
X. XxXxx has agreed to tender his resignation as an employee with
EMPLOYER, effective on April 30, 2004 (referred to herein as the "Resignation
Date"), and EMPLOYER has agreed to accept XxXxx'x resignation upon its tender,
subject to the terms and conditions set forth herein;
X. XxXxx has also agreed that, beginning on March 8, 2004 and
continuing through the Resignation Date (the "Transition Period"), he will
perform transition support for EMPLOYER, according to the following schedule: no
more than four (4) hours per week until Resignation Date, as reasonably
requested by EMPLOYER, and that beginning Xxxxx 0, 0000, XxXxx agrees to a
cessation of vesting of all granted stock options, and beginning on March 8,
2004 and continuing through the Resignation Date, XxXxx will receive 50% of his
salary plus full benefits as stated herein (the "Modified Salary Terms"), which
transition support and Modified Salary Terms are accepted by EMPLOYER, subject
to the terms and conditions hereof;
X. XxXxx and EMPLOYER wish permanently to resolve any and all
potential disputes arising out of XxXxx'x employment with EMPLOYER or the
cessation of that employment.
NOW, THEREFORE, for and in consideration of the execution of this AGREEMENT
and the mutual covenants contained in the following paragraphs, EMPLOYER and
XxXxx agree as follows:
1. INCORPORATION OF RECITALS. The Recitals and identification of the
parties to, and beneficiaries of, this AGREEMENT are incorporated by reference
as though fully set forth herein.
2. NO ADMISSION OF LIABILITY. The parties agree that this AGREEMENT, and
performance of the acts required by it, does not constitute an admission of
liability, culpability, negligence or wrongdoing on the part of anyone, and will
not be construed for any purpose as an admission of liability, culpability,
negligence or wrongdoing by any party and/or by any party's current, former or
future parents, subsidiaries, related entities, predecessors, successors,
officers, directors, shareholders, agents, employees and assigns.
3. SEVERANCE BENEFIT. EMPLOYER agrees that, upon this AGREEMENT becoming
effective (as defined in Section 30, herein), it will pay to XxXxx xxxxxxxxx in
the form of continued salary payment, according to the Modified Salary Terms,
through April 30, 2004 (the "Severance Benefit"), less applicable withholding
taxes, which Severance Benefit XxXxx is not otherwise entitled to receive. The
Severance Benefit shall be paid in equal installments, corresponding with
EMPLOYER's regular payroll schedule. Severance payments and benefits will
terminate on April 30, 2004.
4. DUTIES DURING TRANSITION PERIOD. XxXxx agrees that during the Transition
Period he will assist EMPLOYER in its efforts, as requested, including
specifically an orderly transition of all engineering contacts, project
information and other material, by rendering all EMPLOYER documents accessible
and usable to designated employees of EMPLOYER, and assisting EMPLOYER in such
other areas and manners as are reasonably requested.
5. AT-WILL STATUS. Nothing in this AGREEMENT is intended to modify the
at-will nature of XxXxx'x employment with EMPLOYER. Specifically, EMPLOYER
reserves the right to effect XxXxx'x separation prior to the Resignation Date.
Such separation will not alter EMPLOYER's obligations - including for Severance
and benefit continuation - set forth herein, provided that the separation is not
the result of XxXxx'x material breach of any provision of this AGREEMENT.
6. WAGES AND VACATION TIME PAID. XxXxx acknowledges that he will not accrue
vacation during the Transition Period and EMPLOYER is not required to pay him
for any further accrued vacation and/or paid time off (PTO) beyond that provided
through March 5, 2004.
7. RESIGNATION SCRIPT. During the Transition Period, the parties will work
cooperatively on the preparation of resignation script to use by EMPLOYER and
XxXxx to describe XxXxx'x separation from EMPLOYER, which script shall be used
following the Resignation Date.
8. REFERENCE REQUESTS. EMPLOYER agrees that if it is contacted by
prospective employers of XxXxx without prior notice from XxXxx of such contact,
EMPLOYER will only release information concerning the dates of XxXxx'x
employment and the last position held, and will state that EMPLOYER's company
policy is to release only such information. In the event that XxXxx provides
EMPLOYER with advance notice of a prospective employer's request for a
reference, EMPLOYER will respond to the reference request according to the
mutually-acceptable resignation script described in Section 7, above.
9. OPTION EXERCISE PERIOD. In addition to the Severance Benefit, described
above in Section 3 and as further consideration for the Releases granted herein,
XxXxx shall be permitted to extend the expiration date on options for 40,000
shares (the "Extended Options") from ninety (90) days after termination of
employment to one hundred eighty (180) days from his resignation as an employee.
Any portion of the Extended Options not purchased at the Extended Expiration
Date will be forfeit. All other options held by XxXxx as of March 5, 2004 shall
cease to vest and be forfeited as of that date. XxXxx understands and
acknowledges that the Extended Options will no longer be eligible for
preferential tax treatment as Incentive Stock Options (ISOs) under Section 422
of the Internal Revenue Code of 1986, as amended, with respect to any exercise
occurring after the Resignation Date, and he will be taxed upon exercise of the
Extended Options after such date as though they had been issued as Non-Qualified
Stock Options (NQLs).
10. EQUIPMENT & MATERIALS. XxXxx will return all property of Employer,
including keys, credit cards, books, manuals, records, notes, contracts,
customer lists, passwords, access to electronic newsletters, website tools,
Proprietary Matter, documents (in electronic, hard copy or other media), copies
of any of the foregoing, and any equipment furnished to XxXxx during his
employment to EMPLOYER on the Resignation Date or such earlier date mutually
agreed to between XxXxx and EMPLOYER in writing.
11. XXXXX'X GENERAL RELEASE. XxXxx for himself, his heirs, executors,
administrators, assigns and successors, fully and forever releases and
discharges EMPLOYER and each of its current, former and future parents,
subsidiaries, related entities, employee benefit plans and their fiduciaries,
predecessors, successors, officers, directors, shareholders, agents, employees
and assigns (collectively, "Releasees"), with respect to any and all claims,
liabilities and causes of action, of every nature, kind and description, in law,
equity or otherwise, which have arisen, occurred or existed at any time prior to
the signing of this AGREEMENT, including, without limitation, any and all
claims, liabilities and causes of action arising out of or relating to XxXxx'x
employment with EMPLOYER or the cessation of that employment. In the event that
this AGREEMENT is executed by XxXxx prior to the Resignation Date, XxXxx agrees
that on the Resignation Date he will sign the document entitled "Restated Waiver
and General Release," attached hereto as Exhibit "A," and incorporated herein as
a material part of this AGREEMENT. In the event that XxXxx does not sign Exhibit
A, EMPLOYER will not be obligated to extend the exercise period for the vested
options previously granted to XxXxx and may institute action to recover any and
all payments made to XxXxx under this AGREEMENT.
12. KNOWING WAIVER OF EMPLOYMENT-RELATED CLAIMS. XxXxx understands and
agrees that, with the exception of potential employment-related claims
identified below, he is waiving any and all rights he may have had, now has, or
in the future may have, to pursue against any of the Releasees any and all
remedies available to him under any employment-related causes of action,
including without limitation, claims of wrongful discharge, breach of contract,
breach of the covenant of good faith and fair dealing, fraud, violation of
public policy, defamation, discrimination, personal injury, physical injury,
emotional distress, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans With
Disabilities Act, the Federal Rehabilitation Act, the Family and Medical Leave
Act, the California Fair Employment and Housing Act, the California Family
Rights Act, the Equal Pay Act of 1963, the provisions of the California Labor
Code and any other federal, state or local laws and regulations relating to
employment, conditions of employment (including wage and hour laws) and/or
employment discrimination. Claims not covered by the release provisions of this
AGREEMENT are (i) claims for unemployment insurance benefits, and (ii) claims
under the California Workers' Compensation Act.
13. WAIVER OF CIVIL CODE SEC. 1542. XxXxx expressly waives any and all
rights and benefits conferred upon him by Section 1542 of the Civil Code of the
State of California, which states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
XxXxx expressly agrees and understands that the Release given by him pursuant to
this AGREEMENT applies to all unknown, unsuspected and unanticipated claims,
liabilities and causes of action, which he may have against EMPLOYER.
14. EMPLOYER'S RELEASE. As of the date of this AGREEMENT, EMPLOYER for
itself and each of its current, former and future parents, subsidiaries, related
entities, employee benefit plans and their fiduciaries, predecessors,
successors, officers, directors, shareholders, agents, employees and assigns,
fully and forever releases and discharges XxXxx, his heirs, executors,
administrators, assigns and successors, with respect to any and all claims,
liabilities and causes of action, of every nature, kind and description, in law,
equity or otherwise, by EMPLOYER, including, without limitation, any and all
claims, liabilities and causes of action arising out of or relating to XxXxx'x
employment with EMPLOYER or the cessation of that employment. Notwithstanding
the foregoing, EMPLOYER does not release any claims it may have against XxXxx
for fraud, intentional misconduct or breach of EMPLOYER's confidential
information or for breach of XxXxx'x fiduciary duty as an officer and/or
director of EMPLOYER prior to or following the date of this Agreement, which has
damaged EMPLOYER.
15. SEVERABILITY OF RELEASE PROVISIONS. The parties agree that if any
provision of the releases given by them under this AGREEMENT is found to be
unenforceable, it will not affect the enforceability of the remaining provisions
and the courts may enforce all remaining provisions to the extent permitted by
law.
16. PROMISE TO REFRAIN FROM SUIT OR ADMINISTRATIVE ACTION. XxXxx promises
and agrees that he will never xxx EMPLOYER or any of the other Releasees, or
otherwise institute or participate in any legal proceedings against EMPLOYER or
any of the other Releasees, with respect to any claim covered by the release
provisions of this AGREEMENT, including but not limited to claims arising out of
XxXxx'x employment with EMPLOYER or the termination of that employment, unless
he is compelled by legal process to do so. XxXxx also represents and warrants
that he does not believe he has the basis to file, nor does he intend to file,
any charge or claim with any administrative agency, including the United States
Equal Employment Opportunity Commission and the California Department of Fair
Employment and Housing.
17. PROMISE TO REFRAIN FROM ASSISTING IN SUIT OR ADMINISTRATIVE ACTION.
XxXxx promises and agrees that he shall not advocate or incite the institution
of, or assist or participate in, any suit, complaint, charge or administrative
proceeding by any other person against EMPLOYER or any of the other Releasees,
unless compelled by legal process to do so.
18. CONFIDENTIALITY OF AGREEMENT. XxXxx and Employer mutually promise and
agree that, unless compelled by legal or SEC process, they will not disclose to
others and will keep confidential both the fact of and the terms of this
AGREEMENT, including the amounts referred to herein, except that they may
disclose this information to their attorneys, accountants and other professional
advisors to whom the disclosure is necessary to accomplish the purposes for
which they have consulted such professional advisors. XxXxx and Employer
mutually promise and agree that, unless compelled by legal or SEC process, they
will not disclose to any present or former employees of EMPLOYER the fact or the
terms of this settlement.
19. PROMISE TO MAINTAIN CONFIDENTIALITY OF EMPLOYER'S CONFIDENTIAL
INFORMATION. XxXxx acknowledges that due to the position he has occupied and the
responsibilities he has had at EMPLOYER, he has received confidential
information concerning EMPLOYER's products, procedures, customers, sales,
prices, contracts, and the like. XxXxx hereby promises and agrees that, unless
compelled by legal process, he will not disclose to others and will keep
confidential all information he has received while employed by EMPLOYER
concerning its products and procedures, the identities of its customers, sales,
prices, the terms of any of its contracts with third parties, and the like.
XxXxx agrees that a violation by him of the foregoing obligation to maintain the
confidentiality of EMPLOYER's confidential information will constitute a
material breach of this AGREEMENT. XxXxx specifically confirms that he will
continue to comply with the terms of the EMPLOYER's proprietary information and
inventions policy. XxXxx agrees that it would be difficult to compensate
EMPLOYER fully for damages for any violation of this provision. Accordingly,
XxXxx specifically agrees that EMPLOYER shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement. This
provision with respect to injunctive relief shall not, however, diminish the
right of EMPLOYER to claim and recover damages in addition to injunctive relief.
20. INTEGRATED AGREEMENT. The parties acknowledge and agree that no
promises or representations were made to them which do not appear written herein
and that this AGREEMENT contains the entire agreement of the parties on the
subject matter thereof. The parties further acknowledge and agree that parole
evidence shall not be required to interpret the intent of the parties.
21. VOLUNTARY EXECUTION. The parties hereby acknowledge that they have read
and understand this AGREEMENT and that they sign this AGREEMENT voluntarily and
without coercion.
22. WAIVER, AMENDMENT AND MODIFICATION OF AGREEMENT. The parties agree that
no waiver, amendment or modification of any of the terms of this AGREEMENT shall
be effective unless in writing and signed by all parties affected by the waiver,
amendment or modification. No waiver of any term, condition or default of any
term of this AGREEMENT shall be construed as a waiver of any other term,
condition or default.
23. REPRESENTATION BY COUNSEL. The parties represent that they have had the
opportunity to be represented in negotiations for, and the preparation of, this
AGREEMENT by counsel of their own choosing, and that they have entered into this
AGREEMENT based upon their own judgment and not in reliance upon any
representations or promises made by the other party, other than those contained
within this AGREEMENT. The parties further agree that if any of the facts or
matters upon which they now rely in making this AGREEMENT hereafter prove to be
otherwise, this AGREEMENT will nonetheless remain in full force and effect.
24. CALIFORNIA LAW. The parties agree that this AGREEMENT and its terms
shall be construed under California law.
25. AGREEMENT TO ARBITRATE CLAIMS ARISING FROM AGREEMENT. The parties agree
that if any dispute arises concerning interpretation and/or enforcement of the
terms of this AGREEMENT, said dispute shall be resolved by binding arbitration
conducted in San Diego, California in accordance with the American Arbitration
Association's National Rules for the Resolution of Employment Disputes, then in
effect ("AAA's National Rules"). In the event that such a dispute arises,
counsel for both parties will attempt to jointly select an arbitrator. If unable
to do so, the procedures outlined in the AAA's National Rules shall govern.
26. DRAFTING. The parties agree that this AGREEMENT shall be construed
without regard to the drafter of the same and shall be construed as though each
party to this AGREEMENT participated equally in the preparation and drafting of
this AGREEMENT.
27. COUNTERPARTS. This AGREEMENT may be signed in counterparts and said
counterparts shall be treated as though signed as one document.
28. PERIOD TO CONSIDER TERMS OF AGREEMENT. XxXxx acknowledges that this
AGREEMENT was presented to him on March 11, 2004 and that he is entitled to have
21 days' time in which to consider the AGREEMENT. XxXxx acknowledges that he has
obtained or had the opportunity to obtain the advice and counsel from the legal
representative of his choice and executes this AGREEMENT having had sufficient
time within which to consider its terms. XxXxx represents that if he executes
this AGREEMENT before 21 days have elapsed, he does so voluntarily, upon the
advice and with the approval of his legal counsel, and that he voluntarily
waives any remaining consideration period.
29. REVOCATION OF AGREEMENT. XxXxx understands that after executing this
AGREEMENT, he has the right to revoke it within seven (7) days after his
execution of it. XxXxx understands that this AGREEMENT will not become effective
and enforceable unless the seven-day revocation period passes and XxXxx does not
revoke the AGREEMENT in writing. XxXxx understands that this AGREEMENT may not
be revoked after the seven-day revocation period has passed. XxXxx understands
that any revocation of this AGREEMENT must be made in writing and delivered to
EMPLOYER at 00000 Xxxxx Xxxxx, Xxxxx, XX 00000, within the seven-day period.
30. EFFECTIVE DATE. This AGREEMENT shall become effective and binding upon
the parties eight (8) days after XxXxx'x execution hereof, so long as he has not
revoked it within the time period and in the manner specified in paragraph 29,
above.
Dated: March 18, 2004 By: /s/ Xxxxx Xxxxxxx XxXxx
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Xxxxx Xxxxxxx XxXxx
SPACEDEV, INC.
Dated: March 11, 2004 By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Executive Officer
EXHIBIT "A"
RESTATED WAIVER AND GENERAL RELEASE
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This Restated Waiver and General Release (the "Restated Release") is
executed by Xxxxx Xxxxxxx XxXxx ("XxXxx"), for the benefit of his former
employer, SpaceDev, Inc. ("Employer"), and is intended to be a material part of
the consideration proffered by XxXxx and received by Employer under that certain
Separation Agreement and General Release (the "Release Agreement").
X. XxXxx executed the Release Agreement on March 11, 2004;
B. The Resignation Date (as defined in the Release Agreement) occurred
after XxXxx'x execution of the Release Agreement;
C. Pursuant to Section 12 of the Release Agreement, XxXxx agreed to execute
this Restated Release, under the circumstances described in Recital B.
NOW THEREFORE, in exchange for his continued receipt of the Severance
Benefit (as described in the Release Agreement), XxXxx reaffirms and represents
as follows:
1. XxXxx for himself, his heirs, executors, administrators, assigns and
successors, fully and forever releases and discharges Employer and each of its
current, former and future parents, subsidiaries, related entities, employee
benefit plans and their fiduciaries, predecessors, successors, officers,
directors, shareholders, agents, employees and assigns (collectively,
"Releasees"), with respect to any and all claims, liabilities and causes of
action, of every nature, kind and description, in law, equity or otherwise,
which have arisen, occurred or existed at any time prior to the signing of this
Restated Release, including, without limitation, any and all claims, liabilities
and causes of action arising out of or relating to XxXxx'x employment with
Employment or the cessation of that employment.
2. With the exception of potential employment-related claims identified in
the Release Agreement, XxXxx is waiving any and all rights he may have had, now
has, or in the future may have, to pursue against any of the Releasees any and
all remedies available to him under any employment-related causes of action,
including without limitation, claims of wrongful discharge, breach of contract,
breach of the covenant of good faith and fair dealing, fraud, violation of
public policy, defamation, discrimination, personal injury, physical injury,
emotional distress, claims under Title VII of the Civil Rights Act of 1964, as
amended, the Age Discrimination in Employment Act, the Americans With
Disabilities Act, the Federal Rehabilitation Act, the Family and Medical Leave
Act, the California Fair Employment and Housing Act, the California Family
Rights Act, the Equal Pay Act of 1963, the provisions of the California Labor
Code and any other federal, state or local laws and regulations relating to
employment, conditions of employment (including wage and hour laws) and/or
employment discrimination.
3. XxXxx expressly waives any and all rights and benefits conferred
upon him by Section 1542 of the Civil Code of the State of California, which
states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
XxXxx expressly agrees and understands that the Release given by him pursuant to
this Restated Release applies to all unknown, unsuspected and unanticipated
claims, liabilities and causes of action, which he may have against Employer or
any of the other Releasees.
4. XxXxx represents and warrants that, as of the date he executes this
Restated Release, he does not believe he has the basis to file, nor does he
intend to file, any charge or claim with any administrative agency, including
the United States Equal Employment Opportunity Commission and the California
Department of Fair Employment and Housing, regarding his employment with
Employer, or the cessation of that employment.
Dated:
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Xxxxx Xxxxxxx XxXxx
