EXHIBIT 99.1
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered
into effective as of January 31, 2006 (the "EFFECTIVE DATE"), by and between
SpaceDev, Inc., a Colorado corporation (together with its successors,
"SPACEDEV"), and Xxxxx Xxxxxxxx, an individual resident of the State of Colorado
("XXXXXXXX").
R E C I T A L S
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WHEREAS, SpaceDev, its wholly-owned subsidiary, Monoceros Acquisition
Corp., a Colorado corporation ("MERGER SUB"), Starsys Research Corporation, a
Colorado corporation (together with its successors, the "COMPANY"), Xxxxxxxx and
certain other parties made and entered into that certain Agreement and Plan of
Merger and Reorganization as of October 24, 2005 (as amended, modified or
supplemented from time to time, the "MERGER AGREEMENT");
WHEREAS, the Merger Agreement provides for the merger of the Company with
and into Merger Sub, with Merger Sub as the surviving company and a wholly-owned
subsidiary of SpaceDev (the "MERGER");
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition precedent to the execution and delivery by SpaceDev of the Merger
Agreement and constitutes a material inducement for SpaceDev therefor; and
WHEREAS, concurrently herewith, SpaceDev and Xxxxxxxx are entering into
that certain Non-Competition Agreement (the "NON-COMPETITION AGREEMENT").
A G R E E M E N T
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NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. TERM.
(a) Term; At-Will Employment. The initial term of Xxxxxxxx' employment
hereunder shall be for a period of three (3) years (the "TERM"), commencing on
the Effective Date and continuing through the third anniversary date thereof,
subject to earlier termination as hereinafter specified. SpaceDev and Xxxxxxxx
acknowledge that Xxxxxxxx' employment with SpaceDev is "at-will," as defined
under applicable law, and that either party may terminate Xxxxxxxx employment
with SpaceDev at any time for any reason, and with or without Cause (as defined
below) or notice. If Xxxxxxxx' employment terminates for any reason, neither
Xxxxxxxx nor SpaceDev shall be entitled to any payments, benefits, damages,
award or compensation, other than as expressly provided in this Agreement.
(b) Renewal. This Agreement may be renewed for additional twelve-month
terms after the expiration of the Term by written agreement between the parties
(any such term, a "RENEWAL TERM"). If the Agreement is not so renewed, it will
terminate by its own terms as set forth herein and SpaceDev shall have no
further obligation to pay Xxxxxxxx any compensation or any other amounts, except
for accrued and unpaid salary, any unused accrued vacation and earned
compensation as defined in this Agreement, or as otherwise required by law or
Section 4 of this Agreement.
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2. POSITION AND RESPONSIBILITIES.
(a) Position. During the Term and any Renewal Term, Xxxxxxxx shall be
employed by SpaceDev with the title of Managing Director (or an equivalent
title). Xxxxxxxx shall perform all services appropriate to that position and as
assigned by SpaceDev's Chief Executive Officer or, if there be no Chief
Executive Officer, its President or other principal executive officer (the
"CEO"). Such services shall be consistent with the Outline of Executive Roles
and Responsibilities for Managing Director, a copy of which is attached hereto
as Exhibit A, as such Outline may be modified by the Board of Directors of
SpaceDev (the "BOARD") from time to time due to changed business, market or
economic conditions (as so modified, the "EXECUTIVE ROLES"). Xxxxxxxx, in such
capacity, shall faithfully perform for SpaceDev the duties of said office and
shall perform such other duties of an executive, managerial or administrative
nature, consistent with the Executive Roles and the office held by Xxxxxxxx, as
shall be reasonably specified and designated from time to time by the CEO,
including, in the discretion of the CEO, services to be rendered to and on
behalf of SpaceDev's subsidiaries and affiliates (the "RELATED ENTITIES"),
including the Company. Xxxxxxxx shall devote sufficient time and effort to the
performance of his duties hereunder, shall perform his duties with the utmost
good faith and integrity and shall do his utmost to promote the interests of
SpaceDev.
(b) Other Activity. During the Term and any Renewal Term, Xxxxxxxx shall
(i) render his services exclusively to SpaceDev and the Related Entities, and
(ii) not accept or undertake any other employment or business without the prior
written consent of SpaceDev, provided that nothing in this Section 2 shall
prohibit Xxxxxxxx from performing personal and charitable activities and such
other activities as may be approved by the CEO or the Board, so long as in each
case such activities (whether or not pursued for pecuniary advantage) (A) do not
interfere with the business of SpaceDev or any Related Entity, (B) do not
interfere with the performance of his duties and objectives to SpaceDev and the
Related Entities under this Agreement, (C) are not directly or indirectly
competitive with SpaceDev or any Related Entity, and (D) do not create a
potential conflict of interest with SpaceDev or any Related Entity. Without
limiting the generality of the foregoing, Xxxxxxxx shall not, directly or
indirectly, own, manage, operate, join, control or participate in the ownership,
management, operation or control of, or be connected in any manner with, any
business that is competitive to the business of SpaceDev or any Related Entity;
provided, however, that (i) Xxxxxxxx may own, directly or indirectly, solely as
an investment, securities of any publicly traded company if Xxxxxxxx (a) is not
a controlling person of, or a member of a group which controls, such company,
and (b) does not, directly or indirectly own two percent or more of any class of
securities of such company. So that SpaceDev may be aware of the extent of any
other demands upon Xxxxxxxx' time and attention, Xxxxxxxx shall disclose to
SpaceDev the nature and scope of any other business or professional activity in
which he is engaging or becomes engaged during the term of this Agreement.
(c) Travel and Relocation. SpaceDev shall not require Xxxxxxxx to (i)
engage in overnight travel for more than an aggregate of 25 nights away from his
home in any three month period, or (ii) relocate from the Boulder or Denver,
Colorado metropolitan areas.
(d) Representations. Xxxxxxxx represents and warrants (i) that he is fully
qualified and competent to perform the responsibilities for which he is being
hired pursuant to the terms of this Agreement; and (ii) that his execution of
this Agreement, his employment with SpaceDev and the performance of his proposed
duties under this Agreement do not violate any obligations he may have to any
former employer (or other person or entity), including any obligations with
respect to proprietary or confidential information of any other person or
entity.
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3. COMPENSATION AND BENEFITS.
(a) Compensation. In consideration of the services to be rendered under
this Agreement, SpaceDev shall pay Xxxxxxxx a base salary of One Hundred Fifty
Thousand Dollars ($150,000.00) per year (the "BASE SALARY"), payable
semi-monthly (or at such other regular intervals as SpaceDev may establish for
payroll from time to time) pursuant to the payroll procedures regularly
established, and amended, by SpaceDev or its payroll company in their sole
discretion, during the term of this Agreement. SpaceDev shall not reduce the
Base Salary during the Term or any Renewal Term. Xxxxxxxx shall not be entitled
to overtime compensation.
(b) Bonus. In addition to the annual base salary set forth in Section 3(a)
above, the Board, or the Compensation Committee thereof, shall consider awarding
Xxxxxxxx bonus compensation at quarterly intervals throughout the Term and any
Renewal Terms, if any, up to an annual aggregate amount equaling 50% of
Xxxxxxxx' Base Salary, based upon Xxxxxxxx' performance and the achievement of
specific milestones to be mutually agreed upon in good faith by Xxxxxxxx and the
Board, or the Compensation Committee thereof, within sixty days after the
Effective Date and on an annual basis thereafter. In determining the amount of
the bonus, if any, and the milestones to employ, the Board, or the Compensation
Committee thereof, and Xxxxxxxx (with regard to milestones) shall give due
consideration to the Executive Roles and the office held by Xxxxxxxx.
(c) Incentive, Savings and Retirement Plans. As Xxxxxxxx becomes eligible,
he shall be entitled to participate in all other incentive, stock option,
savings and retirement plans, policies and programs made available by SpaceDev
to other peer executives of SpaceDev.
(d) Welfare Benefit Plans. Xxxxxxxx shall receive benefits under welfare
benefit plans, policies and programs, including medical, dental, disability and
life insurance as he becomes eligible, consistent with SpaceDev policy for other
peer executives of SpaceDev.
(e) Paid Vacation. In addition to national and state designated holidays
observed by SpaceDev, Xxxxxxxx shall be entitled to twenty days of vacation per
calendar year, or such greater number of days as SpaceDev generally affords peer
executives of SpaceDev, with full pay, beginning upon execution of this
Agreement and the start of each subsequent year of employment hereunder, which
shall accrue ratably during each calendar year of employment. Xxxxxxxx' vacation
shall be taken and expire in accordance with and shall be subject to the terms
of the plans and policies in effect generally as to other peer executives of
SpaceDev.
(f) Expenses. SpaceDev shall reimburse Xxxxxxxx for expenses reasonably
incurred by Xxxxxxxx in carrying out his duties hereunder, promptly after
presentation to SpaceDev of receipts or other documents evidencing the
incurrence of such expenses providing that such expenses have been approved in
advance by the CEO or the Board.
(g) Reservation. SpaceDev reserves the right to modify, suspend, or
discontinue any and all of the above mentioned plans, practices, policies and
programs at any time as long as such action is taken generally with respect to
other similarly situated executives of SpaceDev.
4. TERMINATION OF EMPLOYMENT.
(a) Upon Death. If Xxxxxxxx dies during the term of this Agreement, the
obligations of SpaceDev to or with respect to Xxxxxxxx, under this Agreement,
shall terminate in their entirety except as otherwise provided under this
Section 4.
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(b) Upon Disability. Subject to applicable law, SpaceDev may terminate
Xxxxxxxx' employment upon 30 days written notice of termination if the Board
determines in good faith that Xxxxxxxx is Disabled (as defined below). In the
event that Xxxxxxxx elects to challenge the Board's determination based on a
disagreement regarding a medical diagnosis concerning Xxxxxxxx (it being
understood that all other disagreements shall be resolved pursuant to Section
9), Xxxxxxxx shall notify the Board of his decision, in writing, within 30 days
following his receipt of the Board's written notice of termination pursuant to
this Section 4(b). Within 30 days following Xxxxxxxx' notice of his election to
challenge the Board's determination, SpaceDev and Xxxxxxxx (or his authorized
legal representative) shall in good faith attempt to agree on a physician for
purposes of examining Xxxxxxxx regarding the disputed medical diagnosis;
provided that if SpaceDev and Xxxxxxxx (or his authorized legal representative)
cannot agree on a physician within such 30-day period, then SpaceDev and
Xxxxxxxx (or his authorized legal representative) shall (i) each select a
physician, (ii) use their commercially reasonable efforts to cause their
respective selected physicians mutually to select a third physician, and (iii)
request such third physician to conduct such examination. If any physician
becomes uncooperative during this process, due to no fault of any party hereto,
the process shall be repeated until a cooperating physician is selected to
perform the examination. The medical opinion of the physician so selected shall
be conclusive on the issue of whether Xxxxxxxx is Disabled (to the extent
disagreement on such issue is based on a medical diagnosis). "DISABLED" means
that Xxxxxxxx is prevented or unable, after reasonable accommodation by
SpaceDev, from properly performing his substantial and material duties due to a
mental or physical injury or illness for a period of 120 consecutive days (not
including any vacation days) in any twelve month period or for a period of 180
total days (not including any vacation days) in any twelve-month period, and
"DISABILITY" has the correlative meaning.
(c) For Cause. Notwithstanding any other provision contained in this
Agreement, SpaceDev may terminate this Agreement immediately, at any time, for
Cause. For purposes of this Agreement, "CAUSE" shall mean:
(i) any willful breach or habitual neglect of Xxxxxxxx' material duties
(other than due to a Disability or death) that he is required to perform under
the terms of this Agreement, the Non-Competition Agreement or the Inventions
Agreement;
(ii) conviction for committing a felony, fraud, financial impropriety,
dishonesty or other act of moral turpitude;
(iii) any knowing or deliberate violation of a requirement of the
Xxxxxxxx-Xxxxx Act of 2002 or other material provisions of the federal
securities laws;
(iv) gross carelessness or misconduct regarding Xxxxxxxx' employment with
SpaceDev or any Related Entity; or
(v) failure to obey the lawful and reasonable direction of the CEO or
Board, or breach of any fiduciary duty owed by Xxxxxxxx to SpaceDev or any
Related Entity or their respective shareholders, in such a way that has had or
will have a direct, substantial and adverse effect on the business, finances or
reputation of SpaceDev or any Related Entity or their respective shareholders.
Notwithstanding the foregoing, if there exist (without regard to this and the
next succeeding sentence) events or conditions that constitute Cause under
subsections (i) or (iv) next above, or, to the extent no substantial and adverse
effect has resulted and a cure to is reasonably probable, subsection (v) next
above, the Board shall promptly notify Xxxxxxxx in writing of such events or
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conditions, in reasonable detail, including, where applicable and to the extent
practicable, specific examples of acts, omissions, conduct, performance or other
events or conditions which constitute Cause. Xxxxxxxx shall have 30 days from
the date such written notice is given to cure such events or conditions and, if
cured, such events or conditions shall not constitute Cause hereunder. The Board
shall make the final determination regarding the existence of Cause and whether
Xxxxxxxx has effectively cured the events or conditions constituting Cause.
SpaceDev shall be entitled to suspend Xxxxxxxx' duties pending determination of
the existence of Cause, provided that any period of suspension shall not count
toward the 30-day cure period set forth above.
(d) Good Reason. Xxxxxxxx may terminate this Agreement upon 30 days written
notice to the Board for Good Reason. For purposes of this Agreement, "GOOD
REASON" means any of the following events and conditions shall have occurred
without Xxxxxxxx' express written consent:
(i) the assignment to Xxxxxxxx of any substantial and material duties
inconsistent with his status or position with SpaceDev, or any other action by
SpaceDev that results in a substantial diminution in such status or position; or
(ii) any material breach of this Agreement by SpaceDev.
Notwithstanding the foregoing, if there exist (without regard to this and the
next succeeding sentence) events or conditions that constitute Good Reason,
Xxxxxxxx shall promptly notify the CEO in writing of such events or conditions,
in reasonable detail, including, where applicable and to the extent practicable,
specific examples of acts, omissions, conduct, performance or other events or
conditions which constitute Good Reason. SpaceDev shall have 30 days from the
date such written notice is given to cure such events or conditions and, if
cured, such events or conditions shall not constitute Good Reason hereunder.
(e) Without Cause. SpaceDev may terminate this Agreement at any time, for
any reason or no reason.
(f) Obligations of Xxxxxxxx on Termination. Xxxxxxxx acknowledges and
agrees that all property, including keys, credit cards, books, manuals, records,
notes, contracts, customer lists, Confidential Information (as defined in this
Agreement), documents (in electronic, hard copy or other media), copies of any
of the foregoing on any media and in any tangible form, and any equipment or
other property furnished to Xxxxxxxx by SpaceDev or any Related Entity
(including prior to such Related Entity being one), belong to SpaceDev or such
Related Entity, as the case may be, and shall be promptly returned to SpaceDev
or such Related Entity, as the case may be, or destroyed if in electronic
format, upon termination of employment. Further, upon termination of employment,
Xxxxxxxx shall be deemed to have resigned from all offices and directorships
then held with SpaceDev or any Related Entity.
(g) Obligations of SpaceDev on Termination.
(i) General. As of the date of termination of this Agreement, without
prejudice to any other written agreements SpaceDev and Xxxxxxxx may enter into
from time to time, SpaceDev's obligations to pay Xxxxxxxx or his estate,
beneficiaries, or legal representatives any other compensation or any other
amounts hereunder or on account of the employment relationship contemplated
hereby shall cease, except as provided in this Section 4(g) or otherwise
provided by law.
(ii) Death or Disability. If Xxxxxxxx' employment is terminated by reason
of Xxxxxxxx' death or Disability, this Agreement shall terminate and SpaceDev's
obligations to Xxxxxxxx under this Agreement shall be limited to (a) the
prorated payment of Xxxxxxxx' salary through the date of termination to the
extent not paid by then (his "PRORATED SALARY"); (b) the payment of earned and
accrued bonus or incentive payments due Xxxxxxxx, if any, at the time of
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termination under any bonus or incentive plans in which Xxxxxxxx participated
prior to termination (his "EARNED INCENTIVE COMPENSATION"); (c) the payment of
any unused accrued vacation through the date of termination (his "ACCRUED
VACATION PAY"); and (d) the payment of any reimbursable business expenses that
were documented by Xxxxxxxx prior to termination, or, in the case of Disability,
within 30 days thereafter, in accordance with SpaceDev's policies as set forth
above and that were not reimbursed by SpaceDev at the time of the termination of
this Agreement (his "REIMBURSABLE EXPENSES").
(iii) For Cause. If Xxxxxxxx' employment is terminated by SpaceDev for
Cause, this Agreement shall terminate and SpaceDev's obligations to Xxxxxxxx
under this Agreement shall be limited to his Prorated Salary.
(iv) For Other Than Cause; Good Reason. If Xxxxxxxx' employment is
terminated by SpaceDev without Cause or by Xxxxxxxx for Good Reason, this
Agreement shall terminate and SpaceDev's obligations to Xxxxxxxx under this
Agreement shall be limited to (a) his Prorated Salary; (b) his Earned Incentive
Compensation; (c) his Accrued Vacation Pay; (d) his Reimbursable Expenses; (e)
payment of contributions required to maintain continued health coverage under
COBRA for a period of 18 months (the "COBRA COVERAGE"); and (f) the payment of a
lump sum (the "SEVERANCE PAYMENT") equal to: (1) if Xxxxxxxx' employment is
terminated by SpaceDev without Cause, his then-current Base Salary per month
multiplied by the number of months remaining in the Term (prorated with respect
to any partial month), and (2) if Xxxxxxxx' employment is terminated by Xxxxxxxx
for Good Reason, his then-current Base Salary per month multiplied by the lesser
of (x) twelve months, and (y) the number of months remaining in the Term
(prorated with respect to any partial month). The Severance Payment shall be
paid ten (10) business days following any such termination; provided, however,
that if Xxxxxxxx is deemed a "specified employee" pursuant to Section
409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended (the "CODE"),
then the Severance Payment shall be paid on the six-month anniversary of the
termination date (in either case, the "SEVERANCE PAYMENT DATE").
Notwithstanding anything in this Agreement to the contrary, (i) SpaceDev shall
have no obligation to make the Severance Payment unless on or before the
applicable Severance Payment Date, Xxxxxxxx executes and delivers to SpaceDev a
full general release of claims, in form and substance satisfactory to SpaceDev,
against SpaceDev and the Related Entities and their respective officers,
directors, employees and agents, and (ii) the Severance Payment shall be
extinguished if such general release is not executed and delivered to SpaceDev
by the applicable Severance Payment Date.
(v) Termination by Xxxxxxxx for Other Than Good Reason. Xxxxxxxx may
terminate his employment for any reason upon at least 60 days prior written
notice to the Board. In this case, this Agreement shall terminate and SpaceDev's
obligations to Xxxxxxxx under this Agreement shall be limited to his (a)
Prorated Salary; (b) Earned Incentive Compensation; (c) Accrued Vacation Pay;
(d) Reimbursable Expenses; and (e) COBRA Coverage.
(h) Change in Employer Status. To the extent permitted by law, SpaceDev, in
its sole discretion, may terminate this Agreement (in which case all of
SpaceDev's obligations under this Agreement shall cease after payment of all
compensation due and owing) upon any formal action of the Board approving the
liquidation or dissolution of SpaceDev.
5. WITHHOLDING. All payments made by SpaceDev or any Related Entity to
Xxxxxxxx hereunder shall be subject to applicable payroll deductions and
withholdings.
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6. INVENTIONS AND PROPRIETARY INFORMATION. The terms and provisions of the
Inventions and Proprietary Information, attached hereto as Exhibit B (the
"INVENTIONS AGREEMENT"), are hereby incorporated herein by reference and
expressly made a part hereof, all as if fully set forth herein.
7. CONFIDENTIAL INFORMATION.
(a)"CONFIDENTIAL INFORMATION" means confidential or proprietary information
of SpaceDev or any Related Entity (including of the Company prior to the
Merger), including trade secrets, inventions, whether or not patentable, and all
know-how related thereto, any materials for which copyright protection may be
obtained, equipment, equipment configuration, research, development efforts,
methodologies, testing, engineering, manufacturing, marketing, sales, finances,
operations, processes, formulas, methods, techniques, devices, software
programs, projections, strategies and plans, personnel information, industry
contacts made during Xxxxxxxx' employment with SpaceDev or any Related Entity,
and customer information, including customer needs, contacts, particular
projects and pricing. Confidential Information does not include any information
that: (i) is or becomes generally available to and known by the public (other
than as a result of a wrongful disclosure), or (ii) is or becomes available to
Xxxxxxxx on a non-confidential basis from a source other than SpaceDev or any
Related Entity or any of their respective directors, officers, agents,
employees, attorneys, accountants or other representatives (the
"REPRESENTATIVES"), provided that such source is not and was not bound by a
confidentiality agreement with or other obligation of secrecy to SpaceDev or any
Related Entity of which Xxxxxxxx has knowledge.
(b) During the Term or any Renewal Term, Xxxxxxxx shall keep secret and
retain in strictest confidence, and shall not use for the benefit of Xxxxxxxx or
any person other than SpaceDev and its Related Entities, the Confidential
Information. Xxxxxxxx acknowledges that the Confidential Information is highly
material to the business of SpaceDev and the Related Entities and that the
unauthorized disclosure of such information to or its use by others could cause
substantial harm to SpaceDev, for which SpaceDev may seek any remedies available
at law or in equity. This covenant shall survive the termination of this
Agreement, the Non-Competition Agreement and the Inventions Agreement.
(c) In the event that Xxxxxxxx is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoenas, civil
investigative demands or similar processes) to disclose any Confidential
Information, Xxxxxxxx shall (i) provide SpaceDev with prompt notice thereof and
copies of the documents requested or required to be disclosed so that SpaceDev
may seek an appropriate protective order or waive compliance with the provisions
of this Agreement, and (ii) consult with SpaceDev as to the advisability of
SpaceDev's taking of legally available steps to resist or narrow such request.
(d) Xxxxxxxx therefore expressly agrees that if Xxxxxxxx breaches or
threatens to breach any of the covenants of this Section 7, the parties
acknowledge that the damage or imminent damage to the business or goodwill of
SpaceDev or its Related Entities would be irreparable and extremely difficult to
estimate, making any remedy at law or in damages inadequate. Accordingly,
SpaceDev shall be entitled to injunctive relief against Xxxxxxxx in the event of
any such breach or threatened breach, in addition to any other relief (including
damages) available to SpaceDev under this Agreement, at law or in equity.
8. INDEMNIFICATION. SpaceDev shall indemnify Xxxxxxxx (a) to the extent
provided in SpaceDev's Articles of Incorporation, as the same may be amended
from time to time, and (b) pursuant to SpaceDev's standard indemnification
agreement with its officers and directors, as the same may be in effect from
time to time; provided that none of such provisions shall apply, and SpaceDev
shall not have any obligation whatsoever to indemnify or defend Xxxxxxxx or hold
Xxxxxxxx harmless, for any action, suit or other proceeding to the extent based
on acts, omissions, events or circumstances occurring prior to the Merger.
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9. DISPUTE RESOLUTION.
(a) All disputes ("CLAIMS") between the parties arising from or relating to
this Agreement or SpaceDev's employment of Xxxxxxxx, whether or not pursuant to
this Agreement, shall be resolved by binding arbitration as provided in this
Section 9. The parties each waive their right to commence an action in any court
to resolve any Claim, and each party agrees not to initiate or prosecute any
lawsuit in any way related to any Claim; provided, however, that this Section 9
shall not apply to any Claim (i) for workers compensation or unemployment
benefits; (ii) by SpaceDev for injunctive or other equitable relief; or (iii)
the determination of Disability (which shall be determined pursuant to the
procedures set forth in Section 4(b)). With respect to matters referred to in
clause (ii) next above, SpaceDev may seek and obtain injunctive relief in court,
and then proceed with arbitration under this Agreement.
(b) A Claim must be processed in the manner set forth below, otherwise the
Claim shall be void and deemed waived even if there is a federal or state
statute of limitations which would allow more time to pursue the Claim.
(i) The Claim must initially be raised in writing by the party brining the
claim (the "AGGRIEVED PARTY") to Xxxxxxxx or the Board, as the case may be (the
"OTHER PARTY"). The Other Party shall respond to the Claim within 30 days after
the Claim is presented. The failure of the Other Party to respond within such
time shall be deemed a general denial of the Aggrieved Party's Claim.
(ii) If the Aggrieved Party is not satisfied with the Other Party's
response, the Aggrieved Party may present the Claim for resolution by final and
binding arbitration. If the Aggrieved Party desires to proceed to arbitration,
the Aggrieved Party must give written notice to the Other Party of its intention
to arbitrate within 60 days from either the mailing of the Other Party's final
decision or the expiration of the foregoing 30-day period.
(iii) If the Other Party desires to initiate arbitration, it must give
written notice to the Aggrieved Party within 60 days after either its mailing to
the Aggrieved Party of notice of its final decision or the expiration of the
foregoing 30-day period.
(c) The arbitration shall be conducted in accordance with the then-current
Model Employment Arbitration Procedures of the American Arbitration Association
("AAA") before a single arbitrator. The arbitration shall be conducted in the
English language and shall take place in Denver, Colorado.
(d) Each party shall have the right to take the deposition of three
individuals and any expert witness designated by the other party. Each party
also shall have the right to make requests for production of documents to any
party. Additional discovery may be had only where the arbitrator so orders, upon
a showing of substantial need. All issues related to discovery will be resolved
by the arbitrator. The parties waive the provisions of any law that modifies,
expands or adds to the discovery and deposition rules set forth in this Section
9(d).
(e) The arbitrator shall not have the authority to (i) adopt new policies
or procedures for SpaceDev or any Related Entity; (ii) modify this Agreement or
any existing policies, procedures, wages or benefits of SpaceDev or any Related
Entity; or (iii) hear or decide any matter that was not processed in accordance
with this Agreement. The arbitrator shall have exclusive authority to resolve
any Claim, including a dispute relating to the interpretation, applicability,
enforceability or formation of this Agreement, or any contention that all or any
part of this Agreement is void or voidable. The arbitrator shall have the
authority to award any form of remedy or damages that would be available in a
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court; provided that neither party shall seek, and the arbitrator shall have no
authority to award, punitive or exemplary damages.
(f) Each party shall pay one-half of all reasonable and necessary fees of
the AAA and the arbitrator.
(g) To the extent permitted by law, Xxxxxxxx agrees not to initiate or
prosecute against SpaceDev any administrative action (other than an
administrative charge of discrimination) in any way related to any Claim covered
by this Agreement.
(h) The arbitration shall be conducted in private, and will not be open to
the public or the media. The testimony and other evidence presented, and the
results of the arbitration, unless otherwise agreed by both parties, shall be
confidential and shall not be made public or reported by either SpaceDev or
Xxxxxxxx.
(i) The arbitrator shall render a written decision and award (the "AWARD"),
which shall set forth the facts and reasons that support the Award. The Award
shall be final and binding on SpaceDev and Xxxxxxxx.
10. FEES. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which that party may be entitled. This provision shall be
construed as applicable to the entire contract.
11. CONSTRUCTION. The rules of construction specified in Section 11.17
(Construction) of the Merger Agreement are hereby incorporated by reference
herein and shall apply to this Agreement mutatis mutandis, as if expressly set
forth herein.
12. TITLES AND HEADINGS. The section and paragraph titles and headings
contained herein are inserted purely as a matter of convenience and for ease of
reference and shall be disregarded for all other purposes, including the
construction, interpretation or enforcement of this Agreement or any of its
terms or provisions.
13. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof; provided
that if any provision of this Agreement, as applied to any party or to any
circumstance, is adjudged by a court, tribunal or other governmental body,
arbitrator or mediator not to be enforceable in accordance with its terms, the
parties agree that such governmental body, arbitrator or mediator making such
determination shall have the power to modify the provision in a manner
consistent with its objectives such that it is enforceable, and to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced.
14. ASSIGNMENT. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned without the prior written consent of
each other party; provided, however, that SpaceDev may assign, in its sole
discretion, any or all of its rights, interests and obligations under this
Agreement to any successor by merger or consolidation. Any assignment in
violation of the preceding sentence shall be null and void and of no force or
effect. Subject to the preceding sentence, this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and permitted assigns.
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15. AMENDMENTS AND MODIFICATION. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by each of the parties hereto.
16. NO WAIVER. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, or any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance. No waiver by any party of any default, misrepresentation or breach
hereunder, whether intentional or not, shall be effective unless in writing and
signed by the party against whom such waiver is sought to be enforced, and no
such waiver shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence.
17. NOTICES. All notices and other communications hereunder shall be made
and delivered as set forth in Section 11.4 of the Merger Agreement, provided
that for Xxxxxxxx the address shall be as set forth on the signature page hereof
below his signature.
18. GOVERNING LAW. This Agreement and the performance of the transactions
and obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of Colorado applicable to contracts
negotiated, executed and to be performed entirely within such State.
19. ENTIRE AGREEMENT. The parties hereby acknowledge and re-affirm the
terms and provisions of Section 11.1 of the Merger Agreement.
20. THIRD-PARTY BENEFICIARIES. This Agreement is made solely for the
benefit of the parties to this Agreement and their respective permitted
successors and assigns, and no other person or entity shall have or acquire any
right or remedy by virtue hereof except as otherwise expressly provided herein.
21. SUBMISSION TO JURISDICTION; NO JURY TRIAL. Except as provided in
Section 9, the terms and provisions of Section 11.6 (Submission to Jurisdiction;
No Jury Trial; Service of Process) of the Merger Agreement are hereby
incorporated by reference herein and shall apply to this Agreement mutatis
mutandis, as if expressly set forth herein.
22. REPRESENTATION BY COUNSEL. Xxxxxxxx acknowledges that he has been
represented by legal counsel in connection with this Agreement, that he has read
and understands this Agreement, that he is fully aware of its legal effect, and
that he has entered into it freely and voluntarily and based on his own judgment
and not on any representations or promises other than those contained in this
Agreement.
23. IRC SECTION 409A. To the extent that this Agreement or any part thereof
is deemed to be a nonqualified deferred compensation plan subject to Section
409A of the Code and the regulations and guidance promulgated thereunder, (i)
the provisions of this Agreement shall be interpreted in a manner to comply in
good faith with Section 409A of the Code, and (ii) the parties hereto agree to
amend this Agreement, if necessary, for the purposes of complying with Section
409A of the Code promptly upon issuance of any regulations or guidance
thereunder; provided that any such amendment shall not materially change the
present value of the benefits payable to Xxxxxxxx hereunder or otherwise
materially and adversely affect Xxxxxxxx, or SpaceDev or any of SpaceDev's
Related Entities, without the written consent of Xxxxxxxx or SpaceDev, as the
case may be.
PAGE 10
24. SURVIVAL. The terms and provisions of Section 7 through this Section
24, inclusive, shall survive the termination hereof and the termination of
SpaceDev's employment of Xxxxxxxx.
25. COUNTERPARTS. This Agreement may be executed in two or more original or
facsimile counterparts, each of which shall be deemed an original but all of
which together shall constitute but one and the same instrument.
26. FACSIMILE EXECUTION. A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK ]
PAGE 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
SPACEDEV, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
President
Address: 00000 Xxxxx Xxxxx
Xxxxx, XX 00000
Fax: (000) 000-0000
/s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx
Address:
0000 Xxxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
PAGE
EXHIBIT A
OUTLINE OF EXECUTIVE ROLES AND RESPONSIBILITIES
MANAGING DIRECTOR
APPOINTED BY: CEO WITH CONSENT OF THE BOARD OF DIRECTORS
REPORTS TO: CHIEF EXECUTIVE OFFICER
MAJOR RESPONSIBILITIES
The Managing Director will, operate within the authority and direction given by
the Chief Executive Officer, and consistent with his Employment Agreement:
- Be a member of the Company's executive management team and actively
participate in its activities
- Participate in the ongoing development and refinement of the Company's
technology development roadmap and implementation strategy;
- Lead the development of a corporate wide plan to establish a standard for
the
- Company's values, internal communication programs and employee interaction
systems;
- In conjunction with the CEO, help identify and pursue strategic potential
new lines of business that are consistent with the mission and goals of the
Company;
- Identify potential business alliances or acquisition opportunities and
then transition opportunities to the appropriate internal resource for further
inquiry and due diligence;
- Serve as advisor on new project kick-offs, proof-of-concept technologies,
and product initiatives;
- Participate in the development of the Company's corporate strategic plan;
- As requested participate in the interview process for prospective senior
executive employees;
- Advance the position of the Company in the aerospace industry consistent
with the policies of the Board, CEO and Executive Management Team;
- Help management understanding industry and customer needs, and assure that
the Company can maintain high customer satisfaction levels;
- Professionally represent the Company at conferences and symposia;
- Develop and maintain relationships with academic institutions for the
purposes of research collaboration;
- Chair special project committees as requested by the CEO;
- Monitor and brief Executive Management on changes and developments in
external and internal industry environment.
PAGE
EXHIBIT B
FORM OF INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT
(Attached)
PAGE
