EXHIBIT 10.2 AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT

 

 

                                                                    EXHIBIT 10.2

 

               AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT

 

     THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT")

is   made   and   entered   into December 20, 2005, by and between SpaceDev, Inc., a

Colorado   corporation (together with its successors, the "COMPANY"), and Richard

B.   Slansky   ("EXECUTIVE").

 

                                    RECITALS

 

     WHEREAS,   the   Company   and   Executive entered into that certain Employment

Agreement   dated   as   of   February   10,   2003     (the   "PRIOR   AGREEMENT");   and

 

     WHEREAS,   the   Company   and   the Executive desire to amend and restate that

Employment   Agreement   as   set   forth   herein.

 

                                     AGREEMENT

 

     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 Executive's employment

hereunder   shall   be   for   a period of two (2) years (the "TERM"), commencing on

December   20,   2005   (the   "EFFECTIVE   DATE")   and continuing through the second

anniversary   date   thereof,   subject   to   earlier   termination   as    hereinafter

specified.   The   Company   and   Executive acknowledge that Executive's employment

with   the Company is "at-will," as defined under applicable law, and that either

party   may terminate Executive's employment with the Company at any time for any

reason,   and   with or without Cause (as defined below) or notice. If Executive's

employment terminates for any reason, neither Executive nor the Company shall be

entitled to any payments, benefits, damages, award or compensation other than as

expressly   provided   in   this   Agreement.

 

     (b) Renewal. This Agreement will be automatically renewed for an additional

twelve-month period after the expiration of the Term (the "RENEWAL TERM") unless

either   party   provides   written   notice   to the other at least thirty (30) days

prior to the expiration of the Term of its decision not to renew this Agreement.

If   the   Agreement   is not so renewed, it will terminate by its own terms as set

forth   herein   and the Company shall have no further obligation to pay Executive

any compensation or any other amounts, except as provided herein or as otherwise

required   by   law.

 

     2.      POSITION   AND   RESPONSIBILITIES.

 

     (a)      Position.   During the Term and any Renewal Term, Executive shall be

employed   by the Company with the title of President and Chief Financial Officer

of   the   Company.   Executive   shall   perform   all   services appropriate to those

positions   and   as assigned by the Company's Chief Executive Officer (the "CEO")

or,   if   there   be   no   Chief   Executive Officer, by the Board of Directors (the

 

 

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"BOARD").   Such services shall be consistent with the Outline of Executive Roles

and   Responsibilities for President and Chief Financial Officer, a copy of which

is   attached   hereto   as ExhibitA, as such Outline may be modified by the CEO or

the   Board   from   time   to   time   due   to   changed   business, market or economic

conditions   (as   so   modified,   the   "EXECUTIVE   ROLES"),    provided   that   such

modifications   shall be generally consistent with such positions.   Executive, in

such   capacities,   shall   faithfully   perform for the Company the duties of said

offices   and   shall   perform   such   other   duties of an executive, managerial or

administrative   nature, consistent with the Executive Roles and the offices held

by   Executive, as shall be reasonably specified and designated from time to time

by   the   CEO or the Board, including, in the discretion of the CEO or the Board,

services   to   be   rendered   to   and on behalf of the Company's subsidiaries (the

"RELATED   ENTITIES").   Executive   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 the

Company.

 

     (b) Other Activity. During the Term and any Renewal Term, the Executive may

undertake other investment and/or business and/or charitable activities, whether

or   not   for   pecuniary   advantage,   so long as such other activities (A) do not

interfere   with   the   business   of   the Company or any Related Entity (B) do not

materially   interfere   with   the performance of his duties to the Company or any

Related Entity, (C) are not competitive with the Company and (D) do not create a

conflict   of   interest   with   the   Company.   It   is   agreed   that if the Company

hereafter   engages   in   business   in any industry in which the Company is not so

engaged   on   the   date   hereof   (or   proposes on or before the date hereof to so

engage,   and   any   such   proposals   have been disclosed as of the date hereof to

Executive),   any   activities   which   the   Executive   engages   in   prior   to such

engagement   by   the   Company   shall   not   be   a breach of this Section 2(b), and

Executive   may   continue   to   engage   in   such   activities   thereafter.

 

     (c)   Representations.   Executive represents and warrants that his execution

of this Agreement, and the performance of his duties under this Agreement do not

violate   any   obligations   the Executive may have to any other person or entity,

including   any   obligations   with   respect   to   proprietary   or   confidential

information   of   any   other   person   or   entity.

 

     3.      COMPENSATION   AND   BENEFITS.

 

     (a)      Compensation.   In   consideration   of   the   services   to be rendered

under   this Agreement, the Company shall pay Executive a base salary of Fourteen

Thousand Five Hundred Dollars ($14,500) per month (the "BASE SALARY").   Upon the

earlier   of   (i)   completion   of the first Acquisition Transaction following the

Effective   Date   or   (ii)   eight   months   following the Effective Date, the Base

Salary shall be increased to Sixteen Thousand Five Hundred Dollars ($16,500) per

month.   Upon the earlier of (i) completion of the second Acquisition Transaction

following   the   Effective   Date   or   (ii) sixteen months following the Effective

Date,   the   Base   Salary shall be increased to Twenty Thousand Dollars ($20,000)

per   month.   The   Base Salary during the Renewal Term, if any, shall be at least

Twenty   Thousand   Dollars   ($20,000).    The    Base    Salary   shall   be    payable

semi-monthly   (or   at   such other regular intervals as the Company may establish

for payroll from time to time, provided such intervals or not less frequent than

monthly)   pursuant to the payroll procedures regularly established, and amended,

 

 

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by   the Company or its payroll company in their sole discretion, during the term

of this Agreement.   The Company shall not reduce the Base Salary during the Term

or   any   Renewal   Term   hereof.   Executive   shall   not   be   entitled to overtime

compensation.

 

The   term,   "ACQUISITION TRANSACTION" means any transaction or series of related

transactions   completed   during   the   Term   or   the Renewal Term, if applicable,

involving   (i)   the   acquisition   by the Company or any Related Entity of all or

substantially   all   of   the   assets or at least 50% of the voting control or the

total   amount   of   outstanding   securities   (on   an as-converted or exchanged to

common   stock   or   unit basis) of an entity unaffiliated with the Company or any

Related   Entity   or   (ii)   any   reorganization,   consolidation,   merger or other

similar   business   combination   between the Company or any Related Entity on the

one   hand,   and an entity unaffiliated with the Company or any Related Entity on

the other hand whereby the Company or any Related Entity, as the case may be, is

the   surviving   entity in such transaction or transactions; and provided, in the

case   of   either   (i) or (ii) of this sentence, such transaction or transactions

are   approved   by   the   Board.

 

     (b)      Bonus.   In   addition   to the Base   Salary set forth in Section 3(a)

above,   the   Board, or the Compensation Committee thereof, shall award Executive

bonus   compensation   at   quarterly intervals throughout the Term and the Renewal

Term,   if   applicable,   in the amounts set forth on Exhibit B hereto, subject to

the   achievement   of   the   performance   objectives   listed   therein.

 

     (c)   Stock Options. The Compensation Committee of the Board of Directors of

the   Company   has granted Executive Nonqualified Stock Options to purchase up to

1,400,000   shares   of common stock of the Company under the terms and conditions

set   forth   in   that certain Stock Option Agreement, a copy of which is attached

hereto   as   Exhibit   C   and   incorporated   herein   by   reference    (the   "OPTION

AGREEMENT"),   executed   by   the   Company   and   Executive   concurrently with this

Agreement.

 

     (d) Incentive, Savings and Retirement Plans. As Executive becomes eligible,

he   shall   be   entitled   to   participate   in   all other incentive, stock option,

savings   and   retirement   plans,   policies   and   programs   made available by the

Company   to   other   senior   executives   of   the   Company.

 

     (e)   Welfare   Benefit Plans. Executive shall receive benefits under welfare

benefit   plans, policies and programs, including medical, dental, disability and

life   insurance as he becomes eligible, consistent with the Company's policy for

other   senior   executives   of   the   Company.

 

     (f)   Paid   Vacation.   In addition to national and state designated holidays

observed   by   the   Company, Executive shall be entitled to time off per calendar

year as per the Company's paid-time off policy, as amended from time to time, or

such   greater   number of days as the Company generally affords senior executives

of   the   Company,   with   full pay to Executive, 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. Executive's

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 senior

executives of the Company. All unused paid time off that has accrued through the

date   hereof shall continue to be available to Executive in accordance with such

plans   and   policies   and   applicable   law.

 

 

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     (g)   Business   Expenses. The Company shall reimburse Executive for expenses

reasonably   incurred by Executive in carrying out his duties hereunder, promptly

after   presentation to the Company of receipts or other documents evidencing the

incurrence   of such expenses provided that the reimbursement of such expenses is

consistent   with   the   Company's   reimbursement   policy.

 

     (h) Reservation. Subject to the requirements of applicable law, the Company

reserves   the right to modify, suspend, or discontinue any and all of the plans,

practices,   policies   and   programs set forth in Sections 3(d) through (g) above

which   apply   to   its   senior   executives   generally at any time as long as such

action   is   taken   generally   with   respect   to   other similarly situated senior

executives   of   the   Company.

 

     4.      TERMINATION   OF   EMPLOYMENT.

 

     (a)      Upon   Death.   If   Executive dies during the term of this Agreement,

the   obligations   of   the   Company   to   or with respect to Executive, under this

Agreement,   shall terminate in their entirety except as otherwise provided under

this   Section   4.

 

     (b)   Upon   Disability. Subject to applicable law, the Company may terminate

Executive's   employment   upon 30 days written notice of termination if the Board

determines   in   good faith that Executive is Disabled (as defined below). In the

event   that   Executive   elects to challenge the Board's determination based on a

disagreement   regarding   a   medical   diagnosis   concerning   Executive   (it being

understood   that   all   other disagreements shall be resolved pursuant to Section

8), Executive 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 Executive's notice of his election

to   challenge   the   Board's   determination,   the   Company   and Executive (or his

authorized   legal   representative)   shall   in   good   faith attempt to agree on a

physician   for   purposes   of   examining Executive regarding the disputed medical

diagnosis;   provided   that if the Company and Executive (or his authorized legal

representative)   cannot agree on a physician within such 30-day period, then the

Company   and   Executive   (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 Executive is Disabled (to the extent

disagreement   on   such   issue is based on a medical diagnosis). "DISABLED" means

that   Executive   is   prevented   or unable, after reasonable accommodation by the

Company,   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,   the   Company   may terminate this Agreement immediately, at any time,

for   Cause.   For   purposes   of   this   Agreement,   "CAUSE"   shall   mean:

 

 

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           (i)   any   willful   breach   or habitual neglect of Executive's material

     duties   (other   than   due   to a Disability or death) that he is required to

     perform   under   the terms of this Agreement or the Inventions Agreement (as

     defined   in   Section   6(e)   herein);

 

          (ii)   conviction for committing (A) a felony, (B) fraud, (C) financial

     impropriety,   (D)   dishonesty   or   (E)   other   act   of   moral   turpitude;

 

          (iii)   any   knowing   or   deliberate   violation of a requirement of the

     Sarbanes-Oxley   Act   of   2002   or   other material provisions of the federal

     securities   laws;   or

 

          (iv) failure to obey the lawful and reasonable direction of the CEO or

     the Board, or breach of any fiduciary duty owed by Executive to the Company

     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   the Company or any Related Entity.

 

Notwithstanding   the   foregoing,   if there exist (without regard to this and the

next   succeeding   sentence)   events   or   conditions   that constitute Cause under

subsection   (i)   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   CEO   or the Board shall promptly notify Executive 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 Cause.   Executive 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 Executive has effectively cured the events or conditions

constituting   Cause, subject to Executive's right to dispute such determinations

in   accordance   with Section 8 hereof.   The Company shall be entitled to suspend

Executive's   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,   and   provided   further,   that the compensation and other benefits

provided   herein shall continue to be paid and afforded to Executive during such

period.

 

     (d)   Good   Reason.   Executive   may   terminate   this   Agreement upon 30 days

written   notice   to   the CEO and the Board for Good Reason. For purposes of this

Agreement,   "GOOD REASON" means any of the following events and conditions shall

have   occurred   without   Executive's   express   written   consent:

 

           (i) the assignment to Executive of any substantial and material duties

     inconsistent   with   his   status   or position with the Company, or any other

     action   by   the   Company   that   results in a substantial diminution in such

     status   or   position;

 

          (ii)   any   material   breach   of   this   Agreement   by   the   Company; or

 

          (iii)   any   Change   in   Control   (as defined in the Option Agreement);

     unless   following   a Change in Control the successor organization offers to

      continue   this   Agreement for one (1) year following such Change in Control

 

          (iv)   Net   Exercise is deemed unavailable by the board pursuant to the

     last   sentence   of   Section   4.3   of   the   option   agreement.

 

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     or offers Executive a one (1) year contract incorporating substantially all

     of   the terms of this Agreement and maintaining, at least, his then current

     Base   Salary   and   benefits.

 

Notwithstanding   the   foregoing,   if there exist (without regard to this and the

next   succeeding   sentence)   events   or   conditions that constitute Good Reason,

Executive   shall promptly notify the CEO and the Board 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.   The Company 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   or Without Good Reason. The Company may terminate this

Agreement at any time, for any reason or no reason. Executive may terminate this

Agreement   on fifteen (15) days' notice at any time for any reason or no reason.

 

     (f)   Obligations   ofExecutive   on   Termination.   Executive 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   Executive   by   the Company or any Related Entity

(including   prior   to   such   Related Entity being one), belong to the Company or

such   Related   Entity, as the case may be, and shall be promptly returned to the

Company   or   such   Related   Entity,   as   the   case   may   be,   or destroyed if in

electronic   format, upon termination of employment. Further, upon termination of

employment,   Executive   shall   be   deemed   to have resigned from all offices and

directorships   then   held   with   the   Company   or   any   Related   Entity.

 

     (g)   Obligations   ofthe   Company   on   Termination.

 

          (i)   General. As of the date of termination of this Agreement, without

     prejudice   to   any   other   written agreements the Company and Executive may

     enter into from time to time, the Company's obligations to pay Executive or

     his   estate, beneficiaries, or legal representatives any other compensation

     or   any   other   amounts   hereunder   shall cease, except as provided in this

     Section   4(g)   or   otherwise   provided   by   law.

 

          (ii)   Death   or Disability. If Executive's employment is terminated by

     reason of Executive's death, Disability, this Agreement shall terminate and

     the   Company's   obligations   to   Executive   under   this   Agreement shall be

     limited   to (a) the prorated payment of Executive's 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   additional   payments due

     Executive,   if any, at the time of termination under any bonus or incentive

     plans   applicable   to Executive or in which Executive participated prior to

     termination   (his   "EARNED INCENTIVE COMPENSATION"); (c) the payment of any

     additional   bonus   or   additional   payments that would have been payable to

     Exec