exhibit10-1.htm


    RELEASE

    


    This Release (hereinafter “Release”) is
made and given by and between (i) Scott Tibbitts (the “Shareholder Agent”), as
(A) the Shareholder Agent designated pursuant to Section 7.5 of the Agreement
and Plan of Merger and Reorganization dated October 24, 2005, as subsequently
amended, among Starsys Research Corporation, a Colorado corporation, Monoceros
Acquisition Corp., a Colorado corporation, SpaceDev, Inc., a Colorado
corporation, the Shareholder Agent as a Key Shareholder, and the Shareholder
Agent as such Shareholder Agent (the “Merger Agreement”), acting as the agent
for and with binding effect upon all of the Shareholders, and also (B) to the
extent expressly indicated in this Release, in his personal capacity, and (ii)
SpaceDev, Inc., a Delaware corporation (hereinafter “SpaceDev”).  The
following terms not otherwise defined in this Release shall have the meanings
given to them in the Merger Agreement:  “Key Shareholder,”
“Performance Consideration,” “Shareholders” and “Accounting
Dispute.”

    


    RECITALS

    


    A.           SpaceDev
is the successor to SpaceDev, Inc., a Colorado corporation.

    


    B.           The
Merger Agreement provided for the payment of earnout Performance Consideration
under certain conditions (see, e.g., Section 2.4(c) of the Merger Agreement) to
the Shareholders.

    


    C.           A
dispute exists between the Shareholder Agent (acting as the agent for and with
binding effect upon all of the Shareholders) and SpaceDev as to whether any such
Performance Consideration (or, in the alternative, damages for Merger Agreement
breaches which defeated Performance Consideration) is rightly payable, and if so
then in what amount; this dispute is not solely an Accounting
Dispute.

    


    D.           Under
Sections 2.5(c)(2) and 8.3 of the Merger Agreement, such disputes are subject to
dispute resolution as if they had arisen under Section 7.4(b)(1) of the Merger
Agreement.  Such dispute resolution could involve arbitration under
Section 7.6 of the Merger Agreement.  In addition, in the event of
disputes under Section 7.4(b)(1) (and/or Section 7.6) of the Merger Agreement,
SpaceDev is entitled under Section 7.4(c) of the Merger Agreement to withhold
distribution of disputed Performance Consideration pending dispute
resolution.

    


    E.           Section
7.5 of the Merger Agreement provides that the Shareholder Agent is appointed and
constituted as the exclusive agent for the Shareholders to agree to, negotiate
and enter into settlements and compromises with respect to claims made or any
other action to be taken by or on behalf of any Shareholders under Article VII
of the Merger Agreement.

    


    
      
         

      

      
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    F.           Section
2.17(c)(2) of the Merger Agreement provides that if the Merger Agreement is
adopted by the Shareholders (which it indeed was), then all Shareholders shall
be deemed to have consented to and approved the terms and conditions of the
Escrow Agreement contemplated thereby and the appointment of the Shareholder
Agent as the attorney-in-fact and agent for the Shareholders.  In
turn, the Escrow Agreement (among SpaceDev, Inc., a Colorado corporation, Scott
Tibbitts, as Shareholder Agent, and Zions First National Bank; dated January 31,
2006) provides in Section 4.2 thereof that the Shareholder Agent shall serve as
the exclusive representative and agent for the Shareholders in relation to or in
connection with (among other things) the Merger Agreement or the Transactions
(as defined in the Merger Agreement), including to (among other things) agree
to, negotiate and enter into settlements and compromises with respect to any
action to be taken by or on behalf of any Shareholders under Article VII of the
Merger Agreement. Moreover, Section 4.6 of the Escrow Agreement confirms
explicitly that any decision, act, omission, consent or instruction of the
Shareholder Agent in relation to any matter referred to in Article VII of the
Merger Agreement shall constitute a decision, omission, act, consent or
instruction for all of the Shareholders, and shall be final, binding and
conclusive upon each and every Shareholder, and SpaceDev may, without inquiry,
conclusively rely upon any such decision, act, omission, consent or instruction
of the Shareholder Agent as being the decision, act, omission, consent or
instruction of every Shareholder.

    


    G.           SpaceDev
denies all allegations and claims of the Shareholder Agent and the Shareholders,
but in order to achieve the benefits of peace and avoid the expense of
contentious dispute resolution is willing to, in exchange for and subject to the
release and agreements set forth in this Release made by the Shareholder Agent,
acting as the agent for and with binding effect upon all of the Shareholders,
pay the Shareholder Agent, acting as the agent for and for the purpose of pro
rata distribution to all of the Shareholders, the following consideration (the
“Settlement Amount”), which the Shareholder Agent, acting as the agent for and
with binding effect upon all of the Shareholders, acknowledges that SpaceDev
would not agree to pay but for this Release:

     

    
      	
              ·  

            	
              $116,667
      cash within thirty (30) days after the date of this Release;
      and

            


    

     

    
      	
              ·  

            	
              833,333
      shares of common stock of SpaceDev, to be issued in certificated form
      pursuant to the Form S-4 registration statement, registration file No.
      333-130244, as declared effective by the Securities and Exchange
      Commission -- such shares to be issued of record forthwith, but the
      certificates representing such shares to be delivered initially to Scott
      McClendon (the “Certificates Holder”) to be delivered by the Certificates
      Holder to the Shareholder Agent only as follows (and subject to Section 1
      below):

            


    

     

    
      
         

      

      
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              ·  

            	
              certificates
      (as specified in detail on Exhibit A hereto) representing in the aggregate
      108,286 shares of common stock of SpaceDev shall be delivered within
      thirty (30) days after the date of this
Release.

            


    

     

    
      	
              ·  

            	
              certificates
      (as specified in detail on Exhibit A hereto) representing in the aggregate
      356,953 shares of common stock of SpaceDev shall be delivered
      approximately 6 months after the date of this Release, but no later than
      the third day after the 6-month anniversary of the date of this
      Release;

            


    

     

    
      	
              ·  

            	
              certificates
      (as specified in detail on Exhibit A hereto) representing in the aggregate
      184,049 shares of common stock of SpaceDev shall be delivered
      approximately 9 months after the date of this Release, but no later than
      the third day after the 9-month anniversary of the date of this Release;
      and

            


    

     

    
      	
              ·  

            	
              certificates
      (as specified in detail on Exhibit A hereto) representing in the aggregate
      184,045 shares of common stock of SpaceDev shall be delivered
      approximately 12 months after the date of this Release, but no later than
      the third day after the 12-month anniversary of the date of this
      Release.

            


    

     

    H.           The
Shareholder Agent, acting as the agent for and with binding effect upon all of
the Shareholders, acknowledges the sufficiency of the Settlement Amount to be
received by him, and in return desires to release SpaceDev from any and all
claims which the Shareholder Agent, each Shareholder and all of the Shareholders
has, or might have, against SpaceDev relating to or in connection with the
Merger Agreement and/or the Transactions.

    


    NOW, THEREFORE:

     

    1. Settlement
Amount.  Subject to this Release, SpaceDev shall (a) pay the
$116,667 cash portion of the Settlement Amount to the Shareholder Agent by no
later than the thirtieth day after the date of this Release, (b) cause
SpaceDev’s transfer agent to issue and deliver stock certificates (as specified in detail on Exhibit A
hereto) representing the 833,333-shares portion of the Settlement Amount
to the Certificates Holder
forthwith, and (c) cause the Certificates Holder to
deliver the applicable stock certificates (as specified in detail on Exhibit A
hereto) representing in the aggregate 108,286, 356,953, 184,049 and 184,045
shares of common stock of SpaceDev to the Shareholder Agent by no later
than the respective dates specified in Recital G above.  Provided,
that if SpaceDev common stock shall generally have, by merger or other corporate
action, been converted into the right to receive other cash, property or
securities, then any such other securities shall be delivered by the applicable
respective dates instead of such certificates for shares of SpaceDev common
stock; but any such other cash or property shall be delivered within thirty (30)
days after the merger or other corporate action (again, instead of any delivery
of such certificates for shares of SpaceDev common stock).

     

    
      
         

      

      
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    2. Distribution. The
Shareholder Agent agrees to forthwith distribute the Settlement Amount, as and
when each respective segment thereof is received, pro rata to all of the
Shareholders (including to himself to the extent of his pro rata interest as a
Shareholder), without any deduction or holdback of any kind, except as may be
agreed upon by the Shareholders and the Shareholder Agent.

     

    3. Release.  The
Shareholder Agent, for and with binding effect upon each and every one of the
Shareholders and for his and their respective heirs, executors, administrators,
personal representatives, legatees, relatives, spouse, officers, directors,
employees, agents, managers, members, partners, fiduciaries, affiliates, assigns
and successors, fully and forever releases and discharges SpaceDev and each of
its current, former and future parents, subsidiaries, related entities and
employee benefit plans and its and their respective fiduciaries, predecessors,
successors, officers, directors, shareholders, agents,
affiliates,  employees and assigns (collectively, “SpaceDev
Releasees”), with respect to any and all claims, liabilities and causes of
action, of every nature, kind and description, in law, equity or otherwise,
relating to or in connection with
the Merger Agreement and/or the Transactions, which have arisen, occurred
or existed at any time before the signing of this Release, including, without
limitation, any and all claims, liabilities and causes of action arising out of
or relating to Performance Consideration.

     

    SpaceDev,
for and with binding effect upon each and every one of its current, former and
future parents, subsidiaries, related entities and employee benefit plans and
its and their respective fiduciaries, predecessors, successors, officers,
directors, shareholders, agents, affiliates,  employees and assigns,
fully and forever releases and discharges the Shareholders and their respective
heirs, executors, administrators, personal representatives, legatees, relatives,
spouse, officers, directors, employees, agents, managers, members, partners,
fiduciaries, affiliates, assigns and successors (collectively, “Shareholders
Releasees”), with respect to any and all claims, liabilities and causes of
action, of every nature, kind and description, in law, equity or otherwise
relating to or in connection with the Merger Agreement and/or the Transactions,
which have arisen, occurred or existed at any time before the signing of this
Release; PROVIDED, that any claims, liabilities and causes of action arising
from obligations, acts or omissions in any capacity other than strictly as a
Shareholder of Starsys and/or as the Shareholder Agent are not hereby released;
and provided further, for avoidance of doubt, that any claims, liabilities and
causes of action against Scott Tibbitts arising from obligations, acts or
omissions in his capacity as signatory to the Merger Agreement as a “Key
Shareholder” (as opposed to in his capacity as a Shareholder generally with
regard to the Merger Agreement) are not hereby released.

     

    
      
         

      

      
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    4. Unknown Claims. The
Shareholder Agent, acting as the agent for and with binding effect upon all of
the Shareholders, expressly waives any and all rights and benefits conferred
upon him and them by Section 1542 of the Civil Code of the State of California,
which states as follows, and under all similar federal and state statutes and
common law principles:

     

    “A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”

    


    The Shareholder Agent, acting as the
agent for and with binding effect upon all of the Shareholders, expressly agrees
and understands that the release given by him pursuant to this Release applies
to all unknown, unsuspected and unanticipated claims, liabilities and causes of
action which he (as Shareholder Agent or as a Key Shareholder or as a general
Shareholder) or any Shareholder may have against SpaceDev or any of the other
SpaceDev Releasees relating to or in connection with the Merger Agreement and/or
the Transactions.

     

    SpaceDev expressly waives any
and all rights and benefits conferred upon it by Section 1542 of the Civil Code
of the State of California, which states as follows, and under all similar
federal and state statutes and common law principles:

     

    “A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”

    


    SpaceDev expressly agrees and
understands that the release given by it pursuant to this Release applies to all
unknown, unsuspected and unanticipated claims, liabilities and causes of action
(other than those excluded by an express proviso) which it may have against the
Shareholders or any of the other Shareholders Releasees relating to or in
connection with the Merger Agreement and/or the Transactions.

     

    
      
         

      

      
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    5. Severability  of
Release Provisions.  The Shareholder Agent, acting as the agent
for and with binding effect upon all of the Shareholders, and SpaceDev agree
that this Release is severable and that, without limitation, if any provision of
the release given by SpaceDev under this Release is found to be unenforceable
and/or if any provision of the release given by the Shareholder Agent under this
Release is found to be unenforceable,  it will not affect the
enforceability of the remaining  provisions of this Release and it is
the parties’ intent that the courts shall construe such provision as if it were
written so as to be enforceable to the greatest possible extent, and to enforce
all remaining provisions of this Release to the maximum extent permitted by
law.

     

    6. Promise to Refrain from Suit
or Administrative Action.  The Shareholder Agent, acting as the
agent for and with binding effect upon all of the Shareholders, promises and
agrees that he and they will never sue SpaceDev or any of the other SpaceDev
Releasees, or otherwise institute or participate in any legal or administrative
proceedings against SpaceDev or any of the other SpaceDev Releasees, with
respect to any claim covered by (and not excluded by express proviso from) the
release provisions of this Release.

     

    SpaceDev promises and agrees that it
will never sue the Shareholders or any of the other Shareholders Releasees, or
otherwise institute or participate in any legal or administrative proceedings
against the Shareholders or any of the other Shareholders Releasees, with
respect to any claim covered by (and not excluded by express proviso from) the
release provisions of this Release.

     

    7. Integrated
Agreement.  The parties acknowledge and agree that no promises
or representations were made to them concerning the subject matter of this
Release which do not appear written herein and that this Release contains the
entire agreement of the parties on the subject matter thereof.  The
parties further acknowledge and agree that parol evidence shall not be required
to interpret the intent of the parties.

     

    8. Waiver, Amendment and
Modification of Agreement.  The parties agree that no waiver,
amendment or modification of any of the terms of this Release 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 Release shall be construed as a waiver of any other term, condition or
default.

     

    9. Drafting.  The
parties agree that this Release shall be construed without regard to the drafter
of the same and shall be construed as though each party to this Release
participated equally in the preparation and drafting of this
Release.

     

    10. Counterparts.  This
Release may be signed in counterparts and said counterparts shall be treated as
though signed as one document.

     

    11. Attorneys’
Fees.  Each party shall be responsible for his/its own legal
fees incurred in connection with the entering into, enforcement and
interpretation of this Release.

     

    12. Governing
Law.  This Release and its terms shall be governed by and
construed under Colorado law.

     

    
      
         

      

      
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    13.  Representation by Counsel;
No Coercion .  The Shareholder Agent acknowledges that Heller
Ehrman LLP and Hayden Trubitt have represented SpaceDev in connection with this
Release, and have not represented and will not be representing the Shareholder
Agent in connection with this Release.  The Shareholder Agent
understands that he has the right to consult with, and has consulted with, an
attorney of his own choosing before signing this Release; that he has read and
understands this Release; and that he signs this Release voluntarily, without
coercion, and based upon his own judgment.  The Shareholder Agent,
acting as the agent for and with binding effect upon all of the Shareholders,
understands and agrees that if any of the facts or matters upon which he now
relies in making this Release hereafter prove to be otherwise, this Release will
nonetheless remain in full force and effect.

     

    14. No Rush Toward
Agreement.  The Shareholder Agent, acting as the agent for and
with binding effect upon all of the Shareholders, acknowledges that he executes
this Release having had sufficient time within which to consider its
terms.

     

    15. Representation and
Warranty.  Scott Tibbitts, in his personal capacity, represents
and warrants to SpaceDev that the contract provisions referenced in the recitals
of this Release haven not been amended, revoked, rescinded or terminated, and
that they are in full force and effect and are not inconsistent with any other
agreement or instrument, and that he has full right, power and authority to bind
all the Shareholders to this Release.

     

    16. Other
Agreements.  The Shareholder Agent acknowledges that in his
personal capacity he is a party to and bound by the terms and conditions of that
certain Non-Competition Agreement by and between SpaceDev and him dated January
31, 2006 (the “Non-Competition Agreement”).  The Shareholder Agent
understands that his duties under the Non-Competition Agreement survive this
Release and will continue to remain in effect.  The Shareholder Agent
and SpaceDev acknowledge that in the Shareholder Agent’s personal capacity he is
a party to and bound by the terms and conditions of that certain Executive
Employment Agreement by and between SpaceDev and him dated January 31, 2006 (the
“Executive Employment Agreement”).  The Shareholder Agent and SpaceDev
understand that their respective obligations under the Executive Employment
Agreement survive this Release and will continue to remain in
effect.  The Shareholder Agent and SpaceDev acknowledge that in the
Shareholder Agent’s personal capacity (specifically, in his capacity as a Key
Shareholder) he is a party to and bound by the terms and conditions of the
Merger Agreement.  The Shareholder Agent in his personal capacity
(specifically, in his capacity as a Key Shareholder) understands that his
obligations under the Merger Agreement survive this Release and will continue to
remain in effect.

     

    


    
      
         

      

      
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    Dated:
July 15,
2008                                                                                      /s/ Scott
Tibbitts

    SCOTT
TIBBITTS, as the Shareholder Agent, acting as the agent for and with binding
effect upon all of the Shareholders, and also, to the extent expressly indicated
in this Release, in his personal capacity

    


    


    SPACEDEV, INC.

    


    By:           /s/ Mark N.
Sirangelo

    Title:                      Chief
Executive Officer

    


    


    I agree
to serve as and fulfill the duties of the Certificates Holder as specified
above.

    


    


    


       /s/ Scott
McClendon                                                      

    Scott
McClendon

     

     

     

     

    
      
         

      

      
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