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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K/A
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): DECEMBER 13, 2005 (DECEMBER 7,
2005)
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SPACEDEV, INC.
(Exact Name of Registrant as Specified in Charter)
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COLORADO 000-28947 84-1374613
(State or Other Jurisdiction (IRS Employer
of Incorporation) (Commission File Number) Identification No.)
13855 STOWE DRIVE, POWAY, CALIFORNIA 92064
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (858) 375-2030
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
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ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
On December 7, 2005, SpaceDev, Inc. ("SpaceDev") entered into Amendment No.
1, which we refer to as the amendment, to the Agreement and Plan of Merger and
Reorganization, which we refer to as the merger agreement, made as of October
24, 2005 with Starsys Research Corporation, a Colorado corporation ("Starsys"),
Scott Tibbitts, its largest shareholder, and Scott Tibbitts, as shareholder
agent for the other shareholders of Starsys. Pursuant to the merger agreement,
Starsys will merge with and into a newly-created, wholly-owned subsidiary of
SpaceDev, which we refer to as the merger.
The merger agreement is subject to a number of conditions described below.
One closing condition in the merger agreement required that the volume weighted
average price of SpaceDev common stock on the trading day prior to the closing
of the merger would be not less than $0.77 per share. The amendment increases
this minimum average price to $1.00 per share. If this condition was not
satisfied, both SpaceDev and Starsys would have to waive the condition to close
the merger.
The original merger agreement also contained a provision allowing either
SpaceDev or Starsys to terminate the merger agreement under certain
circumstances if the merger did not occur by December 31, 2005. This deadline
applied if the SEC did not review the Form S-4 registration statement being used
to register the shares being issued by SpaceDev in connection with the merger
(or any other SpaceDev filing with the SEC), and the shares of SpaceDev were not
then listed on the American Stock Exchange. The amendment extends this deadline
until January 31, 2006 .
The amendment also provides that the resignation, removal and succession of
the shareholder agent under the merger agreement will be governed by the
provisions of the related escrow agreement, which is to be signed by the parties
prior to or at the closing. Under the escrow agreement, the shareholder agent
may resign upon twenty days notice and may be removed at any time by the persons
who held a majority of the outstanding shares of Starsys immediately preceding
the merger. Upon a resignation or removal, persons who held a majority of the
outstanding shares of Starsys immediately preceding the merger would have the
obligation to appoint a successor shareholder agent. However, if they fail to do
so within ten days of the resignation or removal or the shareholder agent,
SpaceDev may petition a competent court to appoint a successor shareholder
agent.
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Merger Consideration. Starsys shareholders will be entitled to receive the
following consideration at the effective time of the merger, subject to
reduction as provided in the merger agreement:
- cash in the aggregate amount of up to $1,500,000; and,
- an aggregate number of shares of SpaceDev common stock equal to the
quotient of (A) up to $7,500,000 divided by (B) the volume weighted average
price of SpaceDev common stock for the 20 trading days preceding the
merger, but not less than $1.40 or more than $1.90.
The cash and shares to be paid at the closing of the merger are subject to
reduction for transaction expenses and a working capital adjustment. Starsys
management currently anticipates that, after these reductions, approximately
$605,000 in cash and up to $6,419,000 in shares of SpaceDev common stock,
calculated as described above, will be paid to Starsys shareholders at the
closing of the merger.
Approximately one half of the shares issued pursuant to the merger at the
closing or for the first performance period will be placed in escrow to satisfy
indemnification obligations of Starsys shareholders under the merger agreement
and to pay certain expenses of the shareholder agent. The indemnification escrow
will generally last until ten days following the date of audited financial
statements prepared for the surviving corporation for the fiscal year ending
2006 (i.e., approximately April 2007).
Following the merger, Starsys shareholders may also be entitled to receive,
based on the achievement by the Starsys business of certain performance criteria
after the closing, additional performance consideration consisting of up to an
aggregate of $1,050,000 in cash and shares of SpaceDev common stock valued at up
to $18,000,000, subject to reduction for some merger related expenses and to the
aforesaid escrow arrangements, as follows:
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- For the fiscal year ended December 31, 2005, up to $350,000 in cash and up
to an aggregate number of shares of SpaceDev common stock equal to the
quotient of (A) up to $3,000,000 divided by (B) the volume weighted average
price of SpaceDev common stock for the twenty trading days preceding the
date of the audit opinion for Starsys' fiscal year ended December 31, 2005,
but not less than $2.00;
- For the fiscal year ended December 31, 2006, up to $350,000 in cash and up
to an aggregate number of shares of SpaceDev common stock equal to the
quotient of (A) up to $7,500,000 divided by (B) the volume weighted average
price of SpaceDev common stock for the twenty trading days preceding the
date of the audit opinion for Starsys' fiscal year ended December 31, 2006,
but not less than $2.50; and
- For the fiscal year ended December 31, 2007, up to $350,000 in cash and up
to an aggregate number of shares of SpaceDev common stock equal to the
quotient of (A) up to $7,500,000 divided by (B) the volume weighted average
price of SpaceDev common stock for the twenty trading days preceding the
date of the audit opinion for Starsys' fiscal year ended December 31, 2007,
but not less than $3.00.
If any shares of SpaceDev common stock are payable as performance
consideration for the fiscal year ending December 31, 2005, fifty percent of
those shares will be deposited in the indemnification escrow described above. In
addition, 1% of any shares of SpaceDev common stock payable as performance
consideration will be paid as transaction expenses to Robert Vacek, the
president of Starsys.
Starsys shareholders will be entitled to receive the maximum amount of
performance consideration for a particular fiscal year if SpaceDev materially
breaches specific covenants of the merger agreement and is unable to cure the
breach within the cure period set forth in the merger agreement.
Each outstanding share of SpaceDev common stock will remain unchanged in
the merger.
Working Capital Contribution. SpaceDev will contribute $2.5 million to the
working capital of the surviving corporation through the end of 2006.
Treatment of Stock Options and Warrants. The holders of options, warrants
and other rights to purchase Starsys common stock must exercise such rights on
or before the closing of the merger. Any options, warrants or other rights to
purchase Starsys common stock which are not exercised prior to the closing of
the merger will be cancelled and will terminate and expire as of that closing of
the merger. SpaceDev will assume no options, warrants or other rights to
purchase Starsys common stock pursuant to the merger.
Loan Repayments. At the closing of the merger, SpaceDev will (i) pay off
the remaining principal and interest of all loans to Starsys from Vectra Bank
Colorado, which we refer to as Vectra, together with any other costs incurred in
connection with those loans, (ii) cancel and terminate the secured loan of $1.2
million and all accrued interest and fees, from SpaceDev to Starsys, which we
refer to as the SpaceDev loan, and (iii) pay off subordinated loans in the
aggregate amount of approximately $920,000 owed by Starsys to certain Starsys
shareholders. However, SpaceDev will not be obligated to pay off more than
$4,600,000 in the aggregate (excluding the amount of the SpaceDev loan) for all
of the loans and related costs described above.
Reservation of Options. SpaceDev has agreed to reserve for issuance to
Starsys officers, employees and consultants options to buy a number of shares of
SpaceDev common stock equal to at least 15% of the number of shares of SpaceDev
common stock issued at the closing and as earnout consideration. SpaceDev will
seek approval of its shareholders to increase the amount of shares available
under the SpaceDev 2004 Equity Incentive Plan, or under a new stock or equity
plan to be adopted, to provide sufficient reserves for the issuance of the
options referenced above.
Representations, Warranties and Covenants. SpaceDev and Starsys have made
customary representations, warranties and covenants in the merger agreement,
including, among others, covenants (i) not to (A) solicit proposals relating to
alternative business combination transactions or (B) subject to certain
exceptions, enter into discussions concerning or provide information in
connection with alternative business combination transactions, (ii) to cause
shareholder meetings to be held to consider approval of the merger agreement (in
the case of Starsys and SpaceDev), and (iii) subject to certain exceptions, for
the board of directors of Starsys to recommend adoption by its shareholders of
the merger agreement and for the board of directors of SpaceDev to recommend
adoption by its shareholders of the merger agreement.
Conditions to Closing. Consummation of the merger is subject to certain
closing conditions, including, among others, shareholder approvals, absence of
governmental restraints, effectiveness of the Form S-4 registration statement
described below, and accuracy of representations. The merger agreement allows
SpaceDev and Starsys to terminate the merger agreement upon the occurrence (or
non-occurrence) of certain events.
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Following the effective time of the merger, Scott Tibbitts, who is
currently the chief executive officer of Starsys, will become a director and
executive officer of SpaceDev. It is also anticipated that Robert Vacek,
president of Starsys, will remain president of Starsys .
A copy of the merger agreement has been previously filed on a Form 8-K
dated October 26, 2005 and is included in the registration statement on Form
S-4, File No. 333-130244, filed on December 9, 2005. The amendment to the
merger agreement is attached hereto as Exhibit 2.1 and is incorporated herein by
reference. The foregoing description of the merger agreement and amendment is
qualified in its entirety by reference to the full text of the merger agreement
and amendment.
ADDITIONAL INFORMATION; FILING OF FORM S-4
On December 9, 2005, SpaceDev filed a registration statement on Form S-4 in
connection with the merger. For more information about this registration
statement, please see the discussion under Item 8.01 below.
ITEM 8.01. OTHER EVENTS
On December 9, 2005, SpaceDev filed a registration statement on Form S-4,
File No. 333-130244, containing a joint proxy statement and prospectus, in
connection with a merger involving SpaceDev and Starsys Research Corporation.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THIS FILING BECAUSE IT CONTAINS
IMPORTANT INFORMATION ABOUT THE MERGER TRANSACTION. Investors and security
holders may obtain free copies of this document and other documents filed with
the SEC at the SEC's web site at http://www.sec.gov/. In addition, investors
and security holders may obtain free copies of the documents filed with the SEC
by SpaceDev by contacting SpaceDev Investor Relations at (858) 375-2026.
SpaceDev, Starsys and their directors and executive officers may be deemed
to be participants in the solicitation of proxies from the shareholders of
SpaceDev and Starsys in connection with the merger. Information regarding the
special interests of these directors and executive officers in the merger
transaction has been included in the joint proxy statement/prospectus of
SpaceDev and Starsys, which is a part of the registration statement described
above.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
2.1 Amendment No. 1 to Agreement and Plan of Merger and Reorganization dated
December 7, 2005
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SPACEDEV, INC.
Date: December 13, 2005 By: /s/ RICHARD B. SLANSKY
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Richard B. Slansky
President & Chief Financial Officer