S-8 POS No 1
As
filed
with the Securities and Exchange Commission on September 14, 2006
Registration
No. 333-123633
SECURITIES
AND EXCHANGE COMMISSION
FORM
S-8
POST-EFFECTIVE
AMENDMENT NO. 1 TO
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SpaceDev,
Inc.
(Exact
name of registrant as specified in its charter)
|
Colorado
(State
of other jurisdiction of
incorporation
or organization)
|
84-1374613
(IRS
Employer
Identification
No.)
|
|
13855
Stowe Drive, Poway, California
(Address
of Principal Executive Offices)
|
92064
(Zip
Code)
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Plan
Names:
2004
Equity Incentive Plan
|
Richard
B. Slansky
President
SpaceDev,
Inc.
13855
Stowe Drive
Poway,
CA 92064
(858)
375-2030
|
With
copies to:
Gretchen
Cowen, Esq.
Law
Offices of Gretchen Cowen, APC
1903
Wright Place, Suite 250
Carlsbad,
California 92008
(760)
931-0903
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(Name,
Address and Telephone Number, including area code of Agent for
Service)
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Calculation
of Registration Fee
|
Title
of securities to be registered
|
Amount
to be registered(1)
|
Proposed
maximum offering price per share(2)
|
Proposed
maximum aggregate offering price(2)
|
Amount
of registration fee(3)
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|
Stock
Options and Common Stock (par value $.0001)
|
5,000,000
Shares
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$1.27
|
$6,350,000
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$679.45
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(1)
Pursuant
to Rule 416(c) under the Securities Act of 1933, this Registration Statement
also covers an indeterminate amount of interest to be offered or sold pursuant
to the employee benefit plan(s) described herein. This Registration Statement
shall also cover any additional shares of common stock which become issuable
under the Plan being registered pursuant to this Registration Statement by
reason of any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results in
an
increase in the number of our outstanding shares of common stock.
(2)
Estimated solely for the purpose of calculating the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
upon the last sale of the Registrant’s common stock on August 31, 2006 which was
$1.27, as reported in the over-the-counter market.
(3)
2,000,000 of the shares authorized under the Plan were registered on March
29,
2005 pursuant to the original Registration Statement No. 333-123633. A fee
of
$410.99 was paid in connection with the original Registration Statement. The
$679.45 fee set forth above represents the fee paid in connection with the
additional 5,000,000 shares registered pursuant to this Post Effective Amendment
No. 1 to the original Registration Statement No. 333-123633.
(4)
Based
upon the registration of an additional 5,000,000 shares in connection with
this
Post Effective Amendment No. 1 to the original Registration Statement No.
333-123633.
Explanatory
Note
On
March
29, 2005, we
filed
with the Securities and Exchange Commission (“SEC”) a Registration Statement No.
333-123633 on Form S-8, pertaining to 2,000,000 shares of common stock, $0.0001
par value, and options to purchase common stock available for issuance under the
2004 Equity Incentive Plan of SpaceDev, Inc. (the “Plan”). On August 12, 2005,
the shareholders of the Company approved an increase in the number of shares
available under the Plan from 2,000,000 to 4,000,000, and on January 30, 2006,
at a special meeting of the shareholders, the shareholders approved the addition
of 3,000,000 shares, bringing the total authorized for issuance under the Plan
to 7,000,000 common shares. This Post Effective Amendment No. 1 to our
Registration Statement No. 333-123633 is being filed to register the additional
5,000,000 shares added to the Plan on August 12, 2005 and January 30,
2006.
As
of the
date of this Post Effective Amendment No. 1, a total of 3,849,000 shares have
been issued under the Amended 2004 Equity Incentive Plan for SpaceDev, Inc.
(the
“Company”), leaving 3,151,000 shares of our common stock and options to purchase
common stock available under the Plan.
The
Post-Effective Amendment No. 1 to the Registration Statement includes a reoffer
prospectus registering 1,849,900 shares of common stock, all of which represent
shares issuable upon exercise of outstanding options, awarded pursuant to the
Plan to certain officer and directors of the Company (the “Selling
Stockholders”) for resale by the Selling Stockholders. The
reoffer prospectus which is filed as a part of this Registration Statement
has
been prepared in accordance with the requirements of Form S-8, and, pursuant
to
General Instruction C of Form S-8, may be used for reoffers or resales of the
shares of common stock that have been acquired by the Selling Stockholders
pursuant to the Plan.
Except
as
described above, no other changes have been made to our Form S-8 Registration
Statement No. No. 333-123633. For the convenience of the reader and as required
under SEC rules, this Post-Effective Amendment No. 1 to Form S-8 sets forth
the
complete text of Form S-8 rather than just the amended portions thereof. For
Items not modified herein, reference should be made to our Registration
Statement No. 333-123633 on Form S-8 as filed with the SEC on March 29, 2005.
The filing of this Post-Effective Amendment No. 1 is not an admission that
our
Registration Statement No. 333-123633 on Form S-8, when filed, knowingly
included any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading.
REOFFER
PROSPECTUS
1,849,900
Shares of Common Stock under the 2004 Equity Incentive Plan
SPACEDEV,
INC.
The
shares of common stock, $.0001 par value (the “Common Stock” or “Shares”), of
SpaceDev, Inc. (the “Company” or “we”) covered by this Reoffer Prospectus
may be offered and sold to the public by stockholders of the Company
(the “Selling Stockholders”), some of whom may be deemed to be “affiliates”
(as that term is defined in Rule 405 of the General Rules and Regulations of
the
Securities Act of 1933, as amended (the “Securities Act”)) of the Company.
The Selling Stockholders acquired or will acquire the Shares through their
exercise of stock options or other awards granted to them under the Company’s
2004 Equity Incentive Plan (the “Plan”).
All
or a
portion of the Shares may be offered for sale, from time to time, on the Nasdaq
OTC Bulletin Board or otherwise, at prices and terms then obtainable, subject
to
certain limitations. However, any Shares covered by this Reoffer Prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act may be
sold
under Rule 144 instead of pursuant to this Reoffer Prospectus. See “Plan of
Distribution.”
We
will
not receive any of the proceeds from the sale of the Shares by the Selling
Stockholders, but we will receive funds in connection with the exercise of
stock
options relating to such Shares, which funds will be used by the Company for
working capital. All expenses of registration incurred in connection with this
offering are being borne by the Company, but all brokerage commissions,
discounts and other expenses incurred by individual Selling Stockholders will
be
borne by such Selling Stockholders.
Our
Common Stock is listed on the Nasdaq OTC Bulletin Board under the symbol “SPDV.”
The closing bid and ask prices of our Common Stock on the Nasdaq OTC Bulletin
Board on August 31, 2006 were $1.17 and $1.20, respectively.
See
“Risk
Factors” beginning on page 3 for information that should be carefully considered
by prospective investors.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS REOFFER
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The
date
of this Reoffer Prospectus is September 14, 2006.
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The
Company is subject to the information requirements of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and in accordance therewith is
required to file periodic reports, proxy statements and other information with
the U.S. Securities and Exchange Commission (the “Commission”).
The reports, proxy statements and other information filed by the Company
can be inspected and copied at the public reference facilities maintained by
the
Commission at 100
F
Street, N.E., Washington, D.C. 20549,
and at
the Commission’s Regional Offices. Copies of such materials can also be obtained
by mail from the public reference facilities of the Commission at 100
F
Street, N.E., Washington, D.C. 20549
at
prescribed rates. You may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-(800)-SEC-0330. The Commission
also maintains a site on the World Wide Web that contains reports, proxy and
information statements and other information regarding registrants that file
electronically. The address of such site is http://www.sec.gov.
See “Incorporation of Certain Documents by Reference.”
Our
public website is http://www.spacedev.com. We make available free of charge
on
our website, via a link to the SEC’s internet site at http://www.sec.gov, our
annual reports on Form 10-KSB, quarterly reports on Form 10-QSB, current reports
on Form 8-K, proxy statements and Forms 3, 4 and 5 filed on behalf of directors
and executive officers and any amendments to such reports filed or furnished
pursuant to the Exchange Act as soon as reasonably practicable after such
material is electronically filed with, or furnished to, the SEC.
The
Company has filed with the Commission a Registration Statement on Form S-8
under
the Securities Act with respect to the shares of Common Stock offered by this
Reoffer Prospectus. This Reoffer Prospectus does not contain all the information
set forth in or annexed as exhibits to the Registration Statement. For further
information with respect to the Company and the Shares of Common Stock offered
by this Reoffer Prospectus, reference is made to the Registration Statement and
to the financial statements, schedules and exhibits filed as part thereof or
incorporated by reference herein. Copies of the Registration Statement, together
with such financial statements, schedules and exhibits, may be obtained from
the
public reference facilities of the Commission at the addresses listed above,
upon payment of the charges prescribed therefor by the Commission. Statements
contained in this Reoffer Prospectus as to the contents of any contract or
other
document referred to are not necessarily complete and, in each instance,
reference is made to the copy of such contract or other documents, each such
statement being qualified in its entirety by such reference. Copies of such
contracts or other documents, to the extent that they are exhibits to the
Registration Statement or incorporated by reference, may be obtained from the
public reference facilities of the Commission, upon the payment of the charges
prescribed therefor by the Commission.
The
following documents heretofore filed by the Company with the Commission pursuant
to the Exchange Act are hereby incorporated by reference, except as superseded
or modified herein:
(A)
The
Company’s annual report on Form 10-KSB (Accession No. 0001031833-06-000071) for
the fiscal year ended December 31, 2005.
(B)
All
other
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the
end of the fiscal year covered by the Company’s annual report referred to in (a)
above.
(C) The
description of the Company’s common stock contained in its Registration
Statement on Form 10-SB (File No. 000-28947), pursuant to Section 12(g) of
the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
In
addition, all documents filed by the Company pursuant to Sections13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Reoffer Prospectus
and
prior to the termination of the offering of the Shares of Common Stock shall
be
deemed to be incorporated in and made a part of this Reoffer Prospectus by
reference from the date of filing of such documents. Any statement contained
in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Reoffer Prospectus
to the extent that a statement contained herein or in any subsequently
filed document that is also incorporated by reference herein modifies or
replaces such statement. Any statements so modified or superseded shall not
be
deemed, except as so modified or superseded, to constitute a part of this
Reoffer Prospectus.
The
Company hereby undertakes to provide without charge to each person, including
any beneficial owner of Shares of Common Stock, to whom this Reoffer Prospectus
is delivered, on written or oral request of any such person, a copy of any
or
all of the foregoing documents incorporated herein by reference (other than
exhibits to such documents). Written or oral requests for such copies should
be
directed to the Company at 13855 Stowe Drive, Poway, California 92064, telephone
number (858) 375-2030, attention Corporate Secretary.
This
summary highlights information contained elsewhere in this Reoffer Prospectus.
This summary is not complete and may not contain all of the information
that you should consider before purchasing our Common Stock. Certain statements
made in this Reoffer Prospectus constitute “forward-looking statements” under
the Private Securities Litigation Reform Act of 1995. See “Forward-Looking
Statements.”
Our
History
SpaceDev,
Inc. (“SpaceDev”) was incorporated under the laws of the State of Colorado on
December 23, 1996, and acquired its wholly-owned subsidiary, Starsys, Inc.
(“Starsys”), in a reverse triangular merger on January 31, 2006. In this Reoffer
Prospectus, when we refer to the “Company,” “we,” “us,” or “our,” we refer
primarily to the combined entities of SpaceDev and Starsys.
SpaceDev
was originally formed as Pegasus Development Group, Inc. (“Pegasus”). On October
22, 1997, Pegasus issued 8,245,000 shares of its common stock for a 100%
ownership interest in a Nevada corporation known as SpaceDev, Inc., and assumed
that name on December 17, 1997 following a merger of the two companies. SpaceDev
became a publicly traded company in October 1997, and currently trades on the
Nasdaq Over-the-Counter Bulletin Board (“OTCBB”) under the symbol
“SPDV”.
SpaceDev
acquired Starsys, a mature operating company with approximately $18 million
in
revenue and a loss of approximately $3.4 million for fiscal 2005, to compliment
and expand its own base of products, services and engineering capabilities.
We
believe there are numerous potential synergies between the historic SpaceDev
business and the business of Starsys, including but not limited to providing
SpaceDev with more production capacity as its technologies migrate from advanced
systems to products, access to quality facilities and a strong market of
aerospace engineers, a diversification of customers and revenues, and the
ability to bid on larger and more vertically integrated programs and
projects.
Our
principal executive offices are located at 13855 Stowe Drive, Poway, California
92064, and our telephone number is (858) 375-2000.
Our
Business and Objectives
We
are
engaged in the business of conception, design, development, manufacture,
integration and operations of space technology systems, products and services.
Through SpaceDev, we are currently focused on the commercial and military
development of low-cost microsatellites, nanosatellites and related subsystems,
hybrid rocket propulsion for space, launch and human flight vehicles, as well
as
the associated engineering and technical services. Currently, these products
and
services are primarily being sold to governmental agencies; particularly, the
Department of Defense. Although we believe there will be a long-term commercial
market for all of our products, the early adopter of our micro- and
nanosatellite products has been the military. We are developing commercial
hybrid rocket motors for possible use in small launch vehicles, targets and
sounding rockets, as well as for high-performance space vehicles and subsystems.
Because
SpaceDev’s business is primarily focused on governmental customers, it’s
“products” are considered to be the outcome of specific projects. SpaceDev’s
historic approach has been to provide smaller spacecraft - generally 250kg
(550
pounds) mass or less - and cleaner, safer hybrid propulsion systems to
commercial, international and government customers. We are developing smaller
spacecraft and miniaturized subsystems using proven, lower-cost, high-quality
off-the-shelf components. Our space products are modular and reproducible,
which
allows us to create afforadable space solutions for our SpaceDev customers.
By
utilizing our innovative technology and experience, and space-qualifying
commercial industry-standard hardware, software and interfaces, we provide
increased reliability with reduced costs and risks.
SpaceDev’s
business is complimented and expanded by Starsys, which is engaged in the design
and manufacture of mechanical and elctromechanical subsystems and components
for
spacecraft. Starsys subsystems enable critical spacecraft functions, such as
pointing solar arrays and communication antennas and restraining, deploying
and
actuating moving spacecraft components. Through Starsys, we manufacture a wide
range of products including, among other things, bi-axis gimbals, flat plate
gimbals, solar array pointing mechanisms, deployable booms, separation systems,
thermal louvers, actuators (including High Output Paraffin (“HOP”) actuators),
restraint devices, hinges, battery bypass switches and cover systems. We sell
these products directly to spacecraft manufacturers as both “off-the-shelf”
catalog products (representing qualified devices with spaceflight history)
and
custom systems (developed for specific applications). Our customer base for
these products falls into three primary categories: (1) domestic and
international commercial spacecraft (communication and imaging satellites),
(2)
civil spacecraft (NASA) that are primarily scientific in nature, and (3) defense
spacecraft that supports U.S. military capability. Our products are also offered
to non-space customers, including customers in the aerospace, maritime and
industrial industries.
The
engineering and manufacturing capabilities of Starsys position the Company
to
provide both mechanical and electromechanical subsystems for spacecraft.
Indentifying such opportunities is the primary objective of Starsys, which
has
developed and expanded a “product platform” business model to extend its product
life cycle. Product platforms are subsystems for which non-recurring and
developing engineering have been completed and for which there is continued
customer demand. The anticipated product life cycle for our existing Starsys
products in the space industry is approximately 15 years.
We
have
been awarded, have successfully completed and are successfully completing
contracts from such esteemed government, university and commercial customers
as
the Air Force Research Laboratory, The Boeing Company, the California Space
Authority, the Defense Advanced Research Projects Agency, NASA’s Jet Propulsion
Laboratory, Lockheed Martin, Lunar Enterprise Corporation, Malin Space Science
Systems, the Missile Defense Agency (formerly, the Ballistic Missile Defense
Organization), the National Reconnaissence Office, Scaled Composites, LLC,
and
the University of California at Berkeley via NASA.
We
will
continue to seek both government and commercial business, and anticipate that
net sales from government sources will continue to represent in excess of 80%
of
our net sales for the next several years. Currently, we are focused on the
domestic U.S. government market, which we believe represents approximately
half
of the global government market for our technology, products and services.
Although we are interested in exploring increased international revenue and
contract opportunities, our business is restricted by export control regulations
which limit our ability to develop either government or commercial opportunities
outside of the U.S. on some of our products.
The
Selling Stockholders may offer and sell up to 1,849,900 Shares of our Common
Stock under this Reoffer Prospectus. We will not receive any of the proceeds
from the sale of these Shares, but we will receive funds in connection with
the
exercise of stock options relating to such Shares, which funds will be used
by
the Company for working capital. See “Use of Proceeds” and “Selling
Stockholders” below.
Investing
in our Common Stock involves significant risks. You should consider the
information under the caption “Risk Factors” below in deciding whether to
purchase the Shares of Common Stock offered under this
Reoffer Prospectus.
RISK
FACTORS
Purchasing
the Shares of Common Stock offered by this Reoffer Prospectus involves a high
degree of risk. Before purchasing our Common Stock, you should carefully
consider the following risk factors and the other information contained
elsewhere in this Reoffer Prospectus or incorporated by reference. In addition
to historical information, the following discussion, including but not limited
to risks related to anticipated financial performance, and other parts of this
Reoffer Prospectus contain forward-looking information that involves risks
and
uncertainties. Such statements are based on management’s current expectations
and are subject to a number of factors and uncertainties which could cause
actual results to differ materially from those described in the forward-looking
statements, some of which are described in the following risk
factors.
Risks
Related to our
Company
SpaceDev
and Starsys have both experienced losses from operations in prior periods and
have been required to seek additional financing to support their
businesses.
In
prior
years, both SpaceDev and Starsys have experienced operating losses and, in
some
periods, revenues from operations have not been sufficient to fund their
respective operations. On a pro forma basis, the combined company would have
had
a net loss from operations of approximately $5.0 million for the year ended
December 31, 2004 and $2.9 million for the year ended December 31, 2005,
assuming the merger had occurred on January 1, 2004. The success of the combined
company’s business depends upon our ability to generate revenue from existing
contracts, to execute programs cost-effectively, to attract and complete
successfully additional government and commercial contracts, and possibly to
obtain additional financing. The likelihood of our success must be considered
in
light of the expenses, difficulties and delays frequently encountered in
connection with developing businesses, those historically encountered by us,
and
the competitive environment in which we operate.
If
we are unable to raise capital, we may be unable to fund operating cash
shortfalls and future growth opportunities.
In
the
past, both SpaceDev and Starsys have relied upon cash from financing activities
to fund part of the cash requirements of their respective businesses. We may
need additional financing to fund our projected operations or expansion plans.
Additional financing may not be available to us on acceptable terms, or at
all.
Any financing may cause additional dilution to existing shareholders. Any debt
financing or other issuance of securities senior to common stock likely will
include financial and other covenants that will restrict our operating
flexibility and our ability to pay dividends to common shareholders. SpaceDev
has not paid dividends on its common stock in the past and does not anticipate
paying dividends on its common stock in the foreseeable future.
Some
of our government contracts, including our large Missile Defense Agency
contract, are phased and we cannot guarantee that all phases of the contracts
will be awarded to us.
Some
of
our government contracts are phased contracts in which the customer may
determine to terminate the contract between phases for any reason. Accordingly,
the entire contract amount may not be realized by us. In the event that
subsequent phases of some of our government contracts, including but not limited
to the Missile Defense Agency contract, are not awarded to us, it could have
a
material adverse effect on our financial position and results of operations.
We
provide our products and services primarily through fixed-price and cost plus
fixed fee contracts. Starsys has experienced significant losses on fixed-price
contracts. Cost overruns may result in further losses and, if significant,
could
impair our liquidity position.
Under
fixed-price contracts, our customers pay us for work performed and products
shipped without adjustment for the costs we incur in the process. Therefore,
we
generally bear all or a significant portion of the risk of losses as a result
of
increased costs on these contracts. Starsys has experienced significant cost
overruns on development projects under its fixed-price contracts, resulting
in
estimated losses on uncompleted contracts of $2.7 million for Starsys’ fiscal
2004, and an additional $2.5 million for the twelve months ended December 31,
2005. As of December 31, 2005, based on a formal evaluation process, Starsys
reserved approximately $1.5 million for potential risks on these remaining
development projects, which has been reduced to approximately $1.0 million
as of
June 30, 2006. Fixed-price contracts may provide for sharing of unexpected
costs
incurred or savings realized within specified limits and may provide for
adjustments in price depending on actual contract performance other than costs.
We bear the entire risk of cost overruns in excess of the negotiated maximum
amount of unexpected costs to be shared. Any significant overruns in the future
could materially impair our liquidity and operations.
Under
cost
plus fixed fee contracts,
we are
reimbursed for allowable incurred costs plus a fee, which may be fixed or
variable. There is no guarantee as to the amount of fee we will be awarded
under
a cost plus fixed fee contract with a variable fee. The price on a cost plus
fixed fee reimbursable contract is based on allowable costs incurred, but
generally is subject to contract funding limitations. Therefore, we could bear
the amount of costs in excess of the funding limitation specified in the
contract, and we may not be able to recover those cost overruns.
If
we fail to integrate our operations effectively, the combination of SpaceDev
and
Starsys will not realize all the potential benefits of the merger and may be
counterproductive.
The
integration of SpaceDev and Starsys is ongoing and may be time consuming and
expensive and may disrupt the Company’s operations if it is not completed in a
timely and efficient manner. If this integration effort is not successful,
the
Company’s results of operations could be harmed. In addition, we may not achieve
anticipated synergies or other benefits of the merger. We may encounter
difficulties, costs and delays involved in integrating the operations of
SpaceDev and Starsys, including but not limited to the following:
| · |
failure
to successfully manage relationships with customers and other important
relationships;
|
| · |
failure
of customers to accept new services or to continue using the products
and
services of the Company;
|
| · |
difficulties
in successfully integrating the management teams and employees of
the two
companies;
|
| · |
potential
incompatibility of business cultures;
|
| · |
challenges
encountered in managing larger, more geographically dispersed operations;
|
| · |
the
loss of key employees;
|
| · |
diversion
of the attention of management from other ongoing business concerns;
|
| · |
potential
incompatibilities of processes, technologies and systems;
and
|
| · |
potential
difficulties integrating and harmonizing financial reporting
systems.
|
If
the
Company’s operations do not meet the expectations of existing customers of
either SpaceDev or Starsys, these customers may reduce the amount of business
or
cease doing business with the Company altogether, which would harm our results
of operations and financial condition.
If
the
anticipated benefits of the merger are not realized or do not meet the
expectations of financial or industry analysts, the market price of the common
stock may decline. This could occur if, among other reasons:
| · |
the
integration of the two companies is unsuccessful;
|
| · |
the
Company does not achieve the expected benefits of the merger as quickly
as
anticipated or the costs of or operational difficulties arising from
the
merger are greater than anticipated;
|
| · |
the
Company’s financial results after the merger are not consistent with the
expectations of management or financial or industry analysts;
|
| · |
the
anticipated operating and product synergies of the merger are not
realized;
|
| · |
the
Company experiences the loss of significant customers or employees
as a
result of the merger; or
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| · |
Starsys
business continues to incur major cost overruns or remains unprofitable
for other reasons.
|
If
we fail to integrate Starsys, our new wholly owned subsidiary, our cash flow
and
operating results could be adversely affected.
We
recently acquired Starsys, as a subsidiary of SpaceDev. Starsys was insolvent
at
the time of the merger and we have begun making post-acquisition cash
investments into Starsys. As stated previously, SpaceDev and Starsys have
experienced losses from operations in prior periods, requiring that we seek
additional financing to support operations. The operating plans of both
companies assume revenue and cash growth. If we are unable to effectively
integrate our new subsidiary, or if we are unable to create positive cash flow
within SpaceDev or Starsys, our cash flow and operating results could be
adversely affected.
A
substantial portion of our net sales are generated from government contracts,
which makes us susceptible to the uncertainties inherent in the government
budgeting process. In addition, many of our contracts can be terminated by
the
customer.
Our
concentration of government work makes us susceptible to government budget
cuts
and policy changes, which may impact the award of new contracts or future phases
of existing contracts. Government budgets (both in general and as to space
and
defense projects) are subject to the prevailing political climate, which is
subject to change at any time. Additionally, awarded contracts could be altered
or terminated prior to the time we recognize our projected revenue. Many
contracts are awarded in phases where future phases are not guaranteed to us.
In
addition, obtaining contracts and subcontracts from government agencies is
challenging, and contracts often include provisions that are not standard in
private commercial transactions. For example, government contracts
may:
| · |
include
provisions that allow the government agency to terminate the contract
without penalty under some circumstances;
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| · |
be
subject to purchasing decisions of agencies that are subject to political
influence;
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| · |
contain
onerous procurement procedures; and
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| · |
be
subject to cancellation if government funding becomes unavailable.
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Securing
government contracts can be a protracted process involving competitive bidding.
In many cases, unsuccessful bidders may challenge contract awards, which can
lead to increased costs, delays and possible loss of the contract for the
winning bidder.
In
addition, major contracts are often awarded to teams of companies. Therefore,
our ability to win contracts may depend not only on our own merits, but also
those of our bid team members. Also, if we do not lead the bid team as the
prime
contractor, we will have limited control over the contract bid and award
processes.
SpaceDev
common shareholders will experience dilution if our preferred stock is converted
or our outstanding warrants and options are
exercised.
As
of
August 31, 2006, SpaceDev is obligated to issue 9,402,873 shares of Common
Stock
if all of SpaceDev’s outstanding warrants are exercised and shares of preferred
stock converted. In addition, as of August 31, 2006, SpaceDev has
outstanding stock options to purchase an aggregate of 11,587,700 shares of
Common Stock, of which 10,266,700 are currently vested. The total number
of shares issuable upon the exercise or conversion of currently vested warrants,
options and preferred stock (19,669,573 shares) represents approximately 67%
of
SpaceDev’s issued and outstanding shares of common stock as of August 31,
2006.
If
we are unsuccessful in achieving and maintaining compliance with our
registration obligations with regard to the preferred stock and warrants, we
may
incur substantial monetary penalties.
The
agreements we entered into in connection with our issuance of the preferred
stock and warrants to Laurus Master Fund, Ltd. require us to, among other
things, register for resale the shares of common stock issued or issuable under
the note and the accompanying warrants and maintain the effectiveness of the
registration statements for an extended period of time. We are subject to
liquidated damage assessments for non-compliance with this requirement. If
we
are unable to obtain and maintain effectiveness of the required registration
statements, then we may be required to pay these liquidated damages, which
could
adversely affect our business, operating results, financial condition and
ability to service our other indebtedness by negatively impacting our cash
flows.
SpaceDev’s
limited operating history and lack of experience in our new or proposed lines of
business make it difficult to predict our future prospects.
SpaceDev
has a limited operating history and, as a result, our historical financial
information is of limited value in projecting our future success in these
markets. We launched our first microsatellite, CHIPSat, in January 2003 and,
in
June, September and October 2004, our hybrid rocket technology was first
utilized in connection with SpaceShipOne. We hope to sell an increasing
percentage of SpaceDev’s products and services in commercial markets, but
virtually all of SpaceDev’s historical work has been from government contracts
and government-related work. We recently announced our intention to enter the
launch services market by providing a microsat bus, integration services, and
a
launch vehicle as a package. We will be dependent on the performance of Space
Exploration Technologies, a small company with limited operating history which
has not yet had a successful launch, for our first launch vehicle. Our
microsatellites, nanosatellites and launch services may not achieve market
acceptance, and our future prospects are therefore difficult to evaluate.
We
may not successfully or timely develop products.
Many
of
our products and technologies are currently in various stages of development.
Further development and testing of our products and technologies will be
required to prove additional performance capability beyond current levels and
to
confirm commercial viability. Additionally, the final cost of development cannot
be determined until development is complete. Our ongoing and future product
development will depend, in part, on the ability to timely complete our projects
within estimated cost parameters and ultimately deploy the product in a
cost-effective manner. In addition, Starsys has contracted to execute
development programs under fixed price contracts. Under these contracts, even
if
our costs begin to exceed the amount to be paid by the customer under the
contract, we are required to complete the contract without receiving any
additional payments from the customer. It is difficult to predict accurately
the
total cost of executing these programs. If the costs to complete these programs
significantly exceed the payments from the customers under the contracts, our
results of operations will be harmed.
The
marketplace for our technology and products is
uncertain.
The
demand for our technology, products and services is uncertain and we may not
obtain a sufficient market share to sustain our business or to increase
profitability. Our business plan assumes that near-term revenues will be
generated largely from government contracts for microsatellites and
electromechanical systems for spacecraft with a long-term commercial market
developing for private manned and unmanned space exploration. Microsatellites
and commercial space exploration are still relatively new concepts, and it
is
difficult to predict accurately the ultimate size of the market. In addition,
we
are developing new product areas such as large deployable structures, solar
array drives, slip rings and precision scanning assemblies for spacecraft.
Many
of our products and services are new and unproven, and the true level of
customer demand is uncertain. Lack of significant market acceptance of our
products and services, delays in such acceptance, or failure of our markets
to
develop or grow could negatively affect our business, financial condition,
and
results of operations.
Our
operating results could fluctuate on a quarterly and annual basis, which could
cause our stock price to fluctuate or decline.
Our
operating results may fluctuate from quarter-to-quarter and year-to-year for
a
variety of reasons, many of which are beyond our control. Factors that could
affect our quarterly and annual operating results include those listed below
as
well as others listed in this “Risk Factors” section:
| · |
we
may not be awarded new contractors or all phases of existing or future
contracts;
|
| · |
the
timing of new technological advances and product announcements or
introductions by us and our competitors;
|
| · |
changes
in the terms of our arrangements with customers or suppliers;
|
| · |
our
current reliance on a few customers for a significant portion of
our net
sales;
|
| · |
the
failure of our key suppliers to perform as expected;
|
| · |
general
or particular political conditions that could affect spending for
the
products that we offer;
|
| · |
changes
in perception of the safety of space
travel;
|
| · |
delays
or failures to satisfy our obligations under our contracts on a timely
basis;
|
| · |
the
failure of our products to successfully launch or operate;
|
| · |
the
uncertain market for our technology and products;
|
| · |
the
availability and cost of raw materials and components for our products;
and
|
| · |
the
potential loss of or inability to hire key personnel.
|
As
a
result of these factors, period-to-period comparisons of our operating results
may not be meaningful, and you should not rely on them as an indication of
our
future performance. In addition, our operating results may fall below the
expectations of public market analysts or investors. In this event, our stock
price could decline significantly.
We
face significant competition and many of our competitors have greater resources
than we do.
We
face
significant competition for our government and commercial contracts. Many of
our
competitors have greater resources than we do and may be able to devote greater
resources than us to research, development and marketing. Given the
sophistication inherent in our operations, larger competitors may have a
significant advantage and may be able to more efficiently adapt and implement
technological advances. In addition, larger and financially stronger
corporations have advantages over us in obtaining space and defense contracts
due to their superior marketing (lobbying) resources and the perception that
they may be a better choice than smaller companies for mission-critical projects
because of the higher likelihood that they will be able to continue in business
for the necessary future period. Furthermore, it is possible that other domestic
or foreign companies or governments, some with greater experience in the space
industry and many with greater financial resources than we possess, could seek
to produce products or services that compete with our products or services,
including new mechanisms and electromechanical subsystems using new technology
which could render our products less viable. Some of our foreign competitors
currently benefit from, and others may benefit in the future from, subsidies
from or other protective measures implemented by their home countries.
Our
products and services may not function well under certain conditions.
Most
of
our products are technologically advanced and tested, but sometimes are not
space qualified for performance under demanding operating conditions. Our
products may not be successfully launched or operated, or perform as intended.
Like most organizations that have launched satellite programs, we have
experienced and in the future will likely experience some product and service
failures, cost overruns, schedule delays, and other problems in connection
with
our products. Our products and services are and will continue to be subject
to
significant technological change and innovation. Our success will generally
depend on our ability to continue to conceive, design, manufacture and market
new products and services on a cost-effective and timely basis. We anticipate
that we will incur significant expenses in the design and initial manufacture
and marketing of new products and services.
Launch
failures or delays could have serious adverse effects on our business.
Launch
failures or delays of our microsatellites could have serious adverse effects
on
our business. Microsatellite launches are subject to significant risks, the
realization of which can cause disabling damage to or total loss of a
microsatellite, as well as damage to our reputation among actual and potential
customers. Delays in the launch could also adversely affect our net sales.
Delays could be caused by a number of factors, including:
| · |
designing,
constructing, integrating, or testing the microsatellite, microsatellite
components, or related ground
systems;
|
| · |
delays
in receiving the license necessary to operate the microsatellite
systems;
|
| · |
delays
in obtaining the customer’s payload;
|
| · |
delays
related to the launch vehicle;
|
| · |
other
events beyond our control.
|
Delays
and the perception of potential delay could negatively affect our marketing
efforts and limit our ability to obtain new contracts and projects.
Our
U.S. government contracts are subject to audits that could result in a material
adverse affect on our financial condition and results of operations if a
material adjustment is required.
The
accuracy and appropriateness of our direct and indirect costs and expenses
under
our contracts with the U.S. government are subject to extensive regulation
and
audit by the Defense Contract Audit Agency, by other agencies of the U.S.
government or prime contractors. These entities have the right to audit our
cost
estimates and/or allowable cost allocations with respect to certain contracts.
From time to time we may in the future be required to make adjustments and
reimbursements as a result of these audits. Responding to governmental audits,
inquiries or investigations may involve significant expense and divert
management attention. Also, an adverse finding in any such audit, inquiry or
investigation could involve contract termination, suspension, fines, injunctions
or other sanctions and affect future contract awards.
Our
success depends on our ability to retain our key personnel. The December 20,
2005 acceleration of vesting on all outstanding stock options, in anticipation
of the January 2006 implementation of SFAS 123(R), reduced the effectiveness
of
stock options as a retention device.
Our
success will be dependent upon the efforts of key members of our management
and
engineering team, including our chairman and chief technology officer, James
W.
Benson, our chief executive officer and vice-chairman, Mark N. Sirangelo, our
president and chief financial officer, Richard B. Slansky, our vice president
of
engineering, Frank Macklin, our vice president of programs and new business
development, Randall K. Simpson, the managing director of SpaceDev, Scott
Tibbitts, the president of Starsys, Robert Vacek, and certain other SpaceDev
personnel. The loss of any of these persons, or other key employees, including
personnel with security clearances required for classified work and highly
skilled technicians and engineers, could have a material adverse effect on
us.
Our future success is likely to depend substantially on our continued ability
to
attract and retain highly qualified personnel. The competition for such
personnel is intense, and our inability to attract and retain such personnel
could have a material adverse effect on us. At this time we do not maintain
key
man life insurance on any of our key personnel.
One
device we have historically used to enhance our ability to retain and
incentivize key personnel is the grant of stock options which are subject to
vesting. If the employee leaves us before the vesting period has been completed,
the employee must forfeit a portion of the stock options. In December 2005,
in
order to avoid adverse financial reporting effects in future years under SFAS
123(R), a new accounting standard, we eliminated all future vesting requirements
on all of our stock options for 8,031,036 common shares then outstanding in
the
hands of employees, officers, and directors.
If
we grow but do not effectively manage the growth, our business could suffer
as a
result.
Even
if
we are successful in obtaining new business, failure to manage the growth could
adversely affect our operations. We may experience extended periods of very
rapid growth, which could place a significant strain on our management,
operating, financial and other resources. Our future performance will depend
in
part on our ability to manage growth effectively. We must develop management
information systems, including operating, financial, and accounting systems,
improve project management systems and processes and expand, train, and manage
our workforce to keep pace with growth. Our inability to manage growth
effectively could negatively affect results of operations and the ability to
meet obligations as they come due.
We
may not address successfully the problems encountered in connection
with
potential future acquisitions.
We
expect
to consider opportunities to acquire or make investments in other technologies,
products and businesses that could enhance our capabilities, complement our
current products or expand the breadth of our markets or customer base. We
have
limited experience in acquiring other businesses and technologies; the Starsys
acquisition was our first major acquisition. Potential and completed
acquisitions and strategic investments involve numerous risks,
including:
| · |
problems
assimilating the purchased technologies, products or business
operations;
|
| · |
problems
maintaining uniform standards, procedures, controls and policies;
|
| · |
unanticipated
costs associated with the acquisition;
|
| · |
diversion
of management’s attention from our core business;
|
| · |
adverse
effects on existing business relationships with suppliers and customers;
|
| · |
incompatibility
of business cultures;
|
| · |
risks
associated with entering new markets in which we have no or limited
prior
experience;
|
| · |
dilution
of common stock and shareholder value as well as adverse changes
in stock
price.
|
| · |
potential
loss of key employees of acquired businesses; and
|
| · |
increased
legal and accounting costs as a result of the newly adopted rules
and
regulations related to the Sarbanes-Oxley Act of
2002.
|
If
our key suppliers fail to perform as expected, our reputation may be damaged.
We
may experience delays, lose customers and experience declines in revenues,
profitability, and cash flow.
We
purchase a significant percentage of our product components and subassemblies
from third parties. If our subcontractors fail to perform as expected or
encounter financial difficulties, we may have difficulty replacing them or
identifying qualified replacements in a timely or cost effective manner. As
a
result, we may experience performance delays that could result in additional
program costs, contract termination for default or damage to our customer
relationships which may cause our revenues, profitability and cash flow to
decline. In addition, negative publicity from any failure of one of our products
or sub-systems as a result of a supplier failure could damage our reputation
and
prevent us from winning new contracts.
Our
limited insurance may not cover all risks inherent in our
operations.
We
may
find it difficult to insure certain risks involved in our operations, including
our launch vehicle and satellite operations, accidental damage to high value
customer hardware during the manufacturing process and damages to customer
spacecraft caused by our products not working to specification. Insurance market
conditions or factors outside of our control at the time insurance is purchased
could cause premiums to be significantly higher than current estimates.
Additionally, the U.S. Department of State has published regulations which
could
significantly affect the ability of brokers and underwriters to insure certain
launches. These factors could cause other terms to be significantly less
favorable than those currently available, may result in limits on amounts of
coverage that we can obtain, or may prevent us from obtaining insurance at
all.
Furthermore, proceeds from insurance may not be sufficient to cover losses.
Several
years of low demand and overcapacity in the commercial satellite market have
resulted in slow growth in demand for space products.
The
commercial satellite market has experienced pricing pressures due to excess
capacity in the telecommunications industry and weakened demand over the past
several years. Satellite demand, and thus subsystem and component orders, have
also been impacted by the business difficulties encountered by the commercial
satellite services industry. This has resulted in a reduction in the total
market size in the near term. While the market appears to be making a recovery,
growth in the demand for our products may be limited.
Our
competitive position will be seriously damaged if we cannot protect intellectual
property rights in our technology.
Our
success, in part, depends on our ability to obtain and enforce intellectual
property protection for our technology. We rely on a combination of patents,
trade secrets and contracts to establish and protect our proprietary rights
in
our technology. However, we may not be able to prevent misappropriation of
our
intellectual property, and the agreements we enter into may not be enforceable.
In addition, effective intellectual property protection may be
unavailable or limited in some foreign countries.
There
is
no guarantee any patent will be issued on any patent application that we have
filed or may file. Further, any patent that we may obtain will expire, and
it is
possible that it may be challenged, invalidated or
circumvented. If we do not secure and maintain patent protection
for our technology and products, our competitive position will be significantly
harmed because it will be much easier for competitors to sell products similar
to ours. Alternatively, a competitor may independently develop or patent
technologies that design around our patented technology. In addition,
it is possible that any patent that we may obtain may not provide
adequate protection and our competitive position could be significantly
harmed.
As
we
expand our product line or develop new uses for our products, these products
or
uses may be outside the scope of our current patent applications, issued
patents, and other intellectual property rights. In addition, if we
develop new products or enhancements to existing products, there is no guarantee
that we will be able to obtain patents to protect them. Even if we do receive
patents for our existing or new products, these patents may not provide
meaningful protection. In some countries outside of the United States, effective
patent protection is not available. Moreover, some countries that do allow
registration of patents do not provide meaningful redress for violations of
patents. As a result, protecting intellectual property in these countries is
difficult and our competitors may successfully sell products in those countries
that have functions and features that infringe on our intellectual property.
We
may
initiate claims or litigation against third parties in the future for
infringement of our proprietary rights or to determine the scope and validity
of
our proprietary rights or the proprietary rights of competitors. These claims
could result in costly litigation and divert the efforts of our technical and
management personnel. As a result, our operating results could suffer and our
financial condition could be harmed, regardless of the outcome of the
case.
Claims
by other companies that we infringe on their intellectual property or that
patents on which we rely are invalid could adversely affect our
business.
From
time
to time, companies may assert patent, copyright and other intellectual
proprietary rights against our products or products using our technologies
or
other technologies used in our industry. These claims may result in our
involvement in litigation. We may not prevail in such litigation given the
complex technical issues and inherent uncertainties in intellectual property
litigation. If any of our products were found to infringe on another company’s
intellectual property rights, we could be required to redesign our products
or
license such rights and/or pay damages or other compensation to such other
company. If we were unable to redesign our products or license such intellectual
property rights used in our products, we could be prohibited from making and
selling such products.
Other
companies or entities also may commence actions seeking to establish the
invalidity of our patents. In the event that one or more of our patents are
challenged, a court may invalidate the patent or determine that the patent
is
not enforceable, which could harm our competitive position. If any of our key
patents are invalidated, or if the scope of the claims in any of these patents
is limited by court decision, we could be prevented from licensing the
invalidated or limited portion of such patents. Even if such a patent challenge
is not successful, it could be expensive and time consuming to address, divert
management attention from our business and harm our reputation.
We
are subject to substantial regulation, some of which prohibits us to sell
internationally. Any failure to comply with existing regulations, or increased
levels of regulation, could have a material adverse effect on us.
Our
business activities are subject to substantial regulation by various agencies
and departments of the United States government and, in certain circumstances,
the governments of other countries. Several government agencies, including
NASA
and the U.S. Air Force, maintain Export Control Offices to ensure that any
disclosure of scientific and technical information complies with the Export
Administration Regulations and the International Traffic in Arms Regulations,
or
“ITAR.” Exports of our products, services and technical information require
either Technical Assistance Agreements, manufacturing license agreements or
licenses from the U.S. Department of State depending on the level of technology
being transferred. This includes recently published regulations restricting
the
ability of U.S.-based companies to complete offshore launches, or to export
certain satellite components and technical data to any country outside the
United States. The export of information with respect to ground-based sensors,
detectors, high-speed computers, and national security and missile technology
items are controlled by the Department of Commerce. Failure to comply with
the
ITAR and/or the Commerce Department regulations may subject guilty parties
to
fines of up to $1 million and/or up to 10 years imprisonment per
violation.
In
addition, the space industry has specific regulations with which we must comply.
Command and telemetry frequency assignments for space missions are regulated
internationally by the International Telecommunications Union, which we refer
to
as the ITU. In the United States, the Federal Communications Commission, which
we refer to as the FCC, and the National Telecommunications Information Agency,
which we refer to as NTIA, regulate command and telemetry frequency assignments.
All launch vehicles that are launched from a launch site in the United States
must pass certain launch range safety regulations that are administered by
the
U.S. Air Force. In addition, all commercial space launches that we would perform
require a license from the Department of Transportation. Satellites that are
launched must obtain approvals for command and frequency assignments. For
international approvals, the FCC and NTIA obtain these approvals from the ITU.
These regulations have been in place for a number of years to cover the large
number of non-government commercial space missions that have been launched
and
put into orbit in the last 15 to 20 years. Any commercial deep space mission
that we would perform would be subject to these regulations.
We
are
also subject to laws and regulations regulating the formation, administration
and performance of, and accounting for, U.S. government contracts. With respect
to such contracts, any failure to comply with applicable laws could result
in
contract termination, price or fee reductions, penalties, suspension or
debarment from contracting with the U.S. government.
We
are
also required to obtain permits, licenses, and other authorizations under
federal, state, local and foreign laws and regulations relating to the
environment. Our failure to comply with applicable law or government
regulations, including any of the above-mentioned regulations, could have
serious adverse effects on our business.
SpaceDev’s
stock price has been and may continue to be volatile, which could result in
substantial losses for investors purchasing shares of our common
stock.
The
market prices of securities of technology-based companies like ours,
particularly in industries (also like ours) where substantial value is ascribed
to a hope for future increase in the size of the total market, are often highly
volatile. The market price of our common stock has fluctuated significantly
in
the past. Our market price may continue to exhibit significant fluctuations
in
response to a variety of factors, many of which are beyond our control,
including without limitation:
| · |
deviations
in our results of operations from
estimates;
|
| · |
changes
in estimates of our financial
performance;
|
| · |
changes
in our markets, including decreased government spending or the entry
of
new competitors;
|
| · |
our
inability to obtain financing necessary to operate our
business;
|
| · |
potential
loss of key personnel;
|
| · |
changes
in market valuations of similar companies and stock market
price;
|
| · |
the
Starsys merger; and
|
| · |
volume
fluctuations generally, including resales by former Starsys stockholders
or by Laurus Master Fund, Ltd.
|
Changes
in stock option accounting rules may adversely affect our reported operating
results prepared in accordance with generally accepted accounting principles,
our stock price and our efforts in recruiting additional employees.
Technology
companies, in general, and our company in particular, depend upon and use broad
based employee stock option programs to hire, incentivize and retain employees
in a competitive marketplace. Through fiscal 2005, we did not recognize
compensation expense for stock options issued to employees or directors, except
in limited cases involving modifications of stock options, and we instead
disclosed in the notes to our financial statements information about what such
charges would be if they were expensed. SFAS 123(R), a new accounting standard,
will require us to record equity-based compensation expense for stock options
and employee stock purchase plan rights granted to employees based on the fair
value of the equity instrument at the time of grant. We are now recording these
expenses beginning with the first quarter of 2006. The change in accounting
rules will lead to a decrease in reported earnings, if we have earnings, or
an
increased loss, if we do not have earnings. This may negatively impact our
future stock price. In addition, this change in accounting rules could impact
our ability to utilize broad based employee stock plans to reward employees
and
could result in a competitive disadvantage to us in the employee
marketplace.
The
concentration of ownership of our common stock gives a few individuals
significant control over important policy decisions and could delay or prevent
changes in control.
As
of
August 31, 2006, our executive officers and directors together beneficially
owned approximately 36.% of the issued and outstanding shares of our common
stock. As a result, these persons could have the ability to exert significant
influence over matters concerning us, including the election of directors,
changes in the size and composition of the board of directors, and mergers
and
other business combinations involving us. In addition, through control of the
board of directors and voting power, our officers and directors may be able
to
control certain decisions, including decisions regarding the qualification
and
appointment of officers, dividend policy, access to capital (including borrowing
from third-party lenders and the issuance of additional equity securities),
and
the acquisition or disposition of our assets. In addition, the concentration
of
voting power in the hands of those individuals could have the effect of delaying
or preventing a change in control of our company, even if the change in control
would benefit our shareholders. A perception in the investment community of
an
anti-takeover environment at our company could cause investors to value our
stock lower than in the absence of such a perception.
We
have not paid dividends on our common stock in the past and do not anticipate
paying dividends on our common stock in the foreseeable
future.
We
have
not paid common stock dividends since our inception and do not anticipate paying
dividends in the foreseeable future. Our current business plan provides for
the
reinvestment of earnings in an effort to complete development of our
technologies and products, with the goal of increasing sales and long-term
profitability and value. In addition, the terms of our preferred stock currently
restrict, and any other credit or borrowing arrangements that we may enter
into
may in the future restrict or limit, our ability to pay common stock dividends
to our shareholders.
Our
expansion into other new lines of business may divert management’s attention
from our existing operations and prove to be too
costly.
Our
current business plan contemplates the migration of SpaceDev’s technology from
projects into products for microsatellites and hybrid rocket motors over the
next several years. In the meantime, we are investigating other applications
of
our technology and other markets for our technologies and prospective products.
Our expansion into new lines of business may be difficult for us to manage
because they may involve different disciplines and require different expertise
than our core business. Consequently, this expansion may divert management’s
time and attention away from our core business, and we may need to incur
significant expenses in order to develop the expertise, and reputation we
desire. Any revenues generated by new lines of business may not be significant
enough to offset the expenditures required to enter such business, or provide
the anticipated return on investment.
We
are subject to new corporate governance and internal control reporting
requirements, and our costs related to compliance with, or our failure to comply
with existing and future requirements, could adversely affect our
business.
We
face
new corporate governance requirements under the Sarbanes-Oxley Act of 2002,
as
well as new rules and regulations subsequently adopted by the SEC, the Public
Company Accounting Oversight Board and any stock exchange on which our stock
may
be listed in the future. These laws, rules and regulations, which are already
known to be burdensome and costly, continue to evolve and may become
increasingly stringent in the future. In particular, we will be required to
include management and independent registered public accounting firm reports
on
internal controls as part of our annual report for the year ended
December 31, 2007 pursuant to Section 404 of the Sarbanes-Oxley Act. We are
in the process of evaluating our control structure and processes to help ensure
that we will be able to comply with Section 404 of the Sarbanes-Oxley Act.
We
cannot assure you that we will be able to fully comply with these laws, rules
and regulations that address corporate governance, internal control reporting
and similar matters. Failure to comply with these laws, rules and regulations
could materially adversely affect our reputation, financial condition and the
value of our securities.
The
terms of our outstanding shares of preferred stock, and any shares of preferred
stock issued in the future, may reduce the value of your common stock.
We
have
authorized to issue up to 10,000,000 shares of preferred stock in one or more
series. We currently have outstanding 248,460 shares of our Series C Convertible
Preferred Stock and 5,075 shares of our Series D-1 Preferred Stock. Our board
of
directors may determine the terms of future preferred stock offerings without
further action by our shareholders. If we issue additional preferred stock,
it
could affect your rights or reduce the value of your common stock. In
particular, specific rights granted to future holders of preferred stock could
be used to restrict our ability to merge with or sell our assets to a third
party. These terms may include voting rights, preferences as to dividends and
liquidation, conversion and redemption rights, and sinking fund provisions.
Our
Series C Preferred Stock and Series D-1 Preferred Stock rank senior to the
common stock with respect to dividends and liquidation and have other important
preferred rights.
Because
the Common Stock is subject to the SEC’s penny stock rules, broker-dealers may
experience difficulty in completing customer transactions and trading activity
in SpaceDev securities may be adversely affected.
Transactions
in the Common Stock are currently subject to the “penny stock” rules promulgated
under the Securities Exchange Act of 1934. Under these rules, broker-dealers
who
recommend SpaceDev securities to persons other than institutional accredited
investors must:
| · |
make
a special written suitability determination for the purchaser;
|
| · |
receive
the purchaser’s written agreement to a transaction prior to
sale;
|
| · |
provide
the purchaser with risk disclosure documents which identify certain
risks
associated with investing in “penny stocks” and which describe the market
for these “penny stocks” as well as a purchaser’s legal remedies; and
|
| · |
obtain
a signed and dated acknowledgment from the purchaser demonstrating
that
the purchaser has actually received the required risk disclosure
document
before a transaction in a “penny stock” can be completed.
|
As
a
result of these rules, broker-dealers may find it difficult to effectuate
customer transactions and trading activity in SpaceDev securities may be
adversely affected. As a result, the market price of SpaceDev securities may
be
depressed, and you may find it more difficult to sell our
securities.
If
exemptions from registration are not available in the states where Shares are
sold under this Reoffer Prospectus, the value of the Shares may be adversely
affected.
We
believe that this Reoffer Prospectus, which is part of our registration
statement, may be used by the Selling Stockholders for the sale of the Shares
offered hereby for a period of nine months after the date on the cover page
hereof, provided that the information contained herein (including our financial
statements) is not more than 16 months old from the date of such prospectus
and
we otherwise comply with applicable securities laws. We cannot assure you,
however, that our registration statement will remain effective as we intend.
The
value of the Shares being offered by this Reoffer Prospectus could deteriorate
if a current prospectus covering the Shares is not part of an effective
registration statement, or if the Common Stock is not registered for sale or
exempt from registration in the jurisdictions governing the sales made under
this Reoffer Prospectus.
Certain
statements contained in this Reoffer Prospectus, including, without limitation,
statements containing the words “believes,” “anticipates,” “may,” “intends,”
“expects” and words of similar import, constitute “forward-looking statements”
within the meaning of the Private Securities Litigation Reform Act of 1995.
Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors that may cause our actual results, performance or achievements
(or
industry results, performance or achievements) expressed or implied by such
forward-looking statements to be substantially different from those predicted.
Such factors might include, among others, the following:
| |
-
|
general
economic and business conditions, both nationally and in the regions in
which we operate;
|
- changes
in market valuations of similar companies and stock market price;
- volume
fluctuations generally;
- resales
by stockholders such as by former Starsys stockholders or by Laurus Master
Fund,
Ltd.;
| |
-
|
changes
in business strategy or development plans or in estimates of our
financial
performance;
|
| |
-
|
decreased
government spending;
|
| |
-
|
existing
competition and the entry of new competitors in the markets in which
we
operate;
|
| |
-
|
our
ability to fully integrate Starsys;
|
| |
-
|
delays
in the development or testing of our
products;
|
| |
-
|
technological,
manufacturing, quality control or other problems which could delay
the
sale of our products;
|
| |
-
|
our
inability to obtain appropriate licenses from third parties, protect
our
trade secrets and intellectual property, operate without infringing
upon
the proprietary rights of others and prevent others from infringing
on our
proprietary rights;
|
| |
-
|
our
inability to obtain sufficient financing to continue operations;
and
|
| |
-
|
changes
in demand for products of our customers.
|
Certain
of these factors are discussed in more detail elsewhere in this Reoffer
Prospectus, including, without limitation, under the caption “Risk
Factors.”
We
do not
undertake any obligation to publicly update or revise any forward-looking
statements contained in this Reoffer Prospectus or incorporated by reference,
whether as a result of new information, future events or otherwise. Because
of
these risks and uncertainties, the forward-looking events and circumstances
discussed in this Reoffer Prospectus might not transpire.
All
of
the Shares of Common Stock are being offered by the Selling Stockholders. We
will not receive any proceeds from the sale of the Shares by the Selling
Stockholders, but we will receive funds in connection with the exercise of
stock
options relating to such Shares. The Company will use these funds for working
capital.
The
Shares offered under this Reoffer Prospectus are being registered for reoffers
and resales by Selling Stockholders of the Company who have and may in the
future acquire such Shares under the Plan. The Selling Stockholders named in
the
following table may resell all, a portion, or none of such Shares. There is
no
assurance that any of the Selling Stockholders will sell any or all of the
Shares offered by them hereunder.
Participants
in the Plan who are deemed to be “affiliates” of the Company who acquire Shares
of Common Stock under the Plan may be added to the Selling Stockholders listed
below from time to time by use of a prospectus supplement filed pursuant to
Rule
424(b) under the Securities Act.
The
following table sets forth certain information concerning the Selling
Stockholders as of the date of this Reoffer Prospectus, and as adjusted to
reflect the sale by the Selling Stockholders of the Shares offered hereby,
assuming all of the Shares offered hereby are sold:
|
|
Number
of Shares and Options Beneficially Owned(1)
|
Number
of Shares Upon Exercise of Options to be
Offered(2)(3)
|
Number
of Shares Held After
Offering
|
Percentage
Ownership
After Offering
|
|
Name
|
|
|
|
|
|
Curt
D. Blake(4)
|
309,829
|
93,000
|
216,829
|
*
|
|
Wesley
T. Huntress(5)
|
293,515
|
81,500
|
212,015
|
*
|
|
Scott
McClendon(6)
|
272,460
|
140,000
|
132,460
|
*
|
|
Robert
S. Walker(7)
|
169,035
|
56,500
|
112,535
|
*
|
|
Gen.
Howell M. Estes, III(8)
|
219,667
|
76,500
|
143,167
|
*
|
|
Stuart
E. Schaffer(9)
|
290,206
|
48,000
|
242,206
|
*
|
|
Macklin,
Frank(10)
|
323,173
|
40,000
|
283,173
|
*
|
|
Simpson,
Randy(11)
|
318,304
|
42,400
|
275,904
|
*
|
|
Vacek,
Robert(12)
|
844,812
|
825,000
|
19,812
|
*
|
|
SpaceDev
Employees
|
447,000
|
447,000
|
0
|
*
|
|
TOTAL
|
3,488,001
|
1,849,900
|
1,638,101
|
|
*
Represents less than 1% based on 29,172,635 shares of Common Stock outstanding
as of the date of this Reoffer Prospectus.
|
(1)
|
Represents
shares beneficially owned by the named individual, including shares
that
such person has the right to acquire within 60 days of the date of
this
Reoffer Prospectus pursuant to options granted under the Plan. Unless
otherwise noted, all persons referred to above have sole investment
power
and will, upon exercise of the options, have sole voting in the shares.
In
December 2005, the Company accelerated the vesting schedule for all
options granted under the Plan in response to Accounting Standards
SFAS
123(R) and, as a result, all options granted under the Plan are fully
vested and included in the calculation for share
ownership.
|
|
(2)
|
Represents
all outstanding options to purchase Shares of Common Stock granted
to the
named individuals under the Plan as if such options had been exercised.
The column does not include any shares that may be acquirable under
future
grants of options or other stock awards under the
Plan.
|
|
(3)
|
Does
not constitute a commitment to sell any or all of the stated number
of
Shares of Common Stock. The number of Shares offered shall be
determined from time to time by each Selling Stockholder at his sole
discretion.
|
|
(4)
|
Mr.
Blake is currently and has been an independent director of the Company
since September 2000 and is the current chairman of the Company’s Audit
Committee and a member of its Compensation
Committee.
|
|
(5)
|
Dr.
Huntress is and has been an independent director of the Company since
June
1999, and is a current member of the Company’s Audit Committee and the
Company’s Nominating & Corporate Governance
Committee.
|
|
(6)
|
Mr.
McClendon is and has been an independent director of the Company
since
June 2002, and is a current member of the Company’s Audit Committee and
chairman of the Company’s Compensation
Committee.
|
|
(7)
|
Mr.
Walker is and has been an independent director of the Company since
April
2001 and is currently a member of the Company’s Nominating & Corporate
Governance Committee.
|
|
(8)
|
Gen.
Estes is and has been an independent director of the Company since
April
2001 and is the current chairman of the Company’s Nominating &
Corporate Governance Committee and a member of the Company’s Compensation
Committee.
|
|
(9)
|
Mr.
Schaffer acted as a member of the Company’s Board of Directors from May
2002 to August 2006. Mr. Schaffer acted as the Company’s Vice President of
Product Development and Marketing from May 2002 to August
2003.
|
|
(10)
|
Mr.
Macklin is the Company’s Vice President of Engineering, a position he has
held since 2004. During the past three years, prior to his appointment
as
Vice President of Engineering, Mr. Macklin acted as chief engineer
of
hybrid propulsion systems and the technical leader for our National
Reconnaissance Office funded SPOTV Hybrid System Definition study.
Mr.
Macklin has served the Company in various roles since joining us
in 1998
as part of our acquisition of the former Integrated Space Systems,
Inc.
|
|
(11)
|
Mr.
Simpson is the Company’s Vice President of New Business Development, a
position he has held since January
2004.
|
|
(12)
|
Mr.
Vacek acts as President of Starsys, and served Starsys as vice-president
of programs from November 2004 to June 2005 and president and general
manager from June 2005 until the
merger.
|
The
sale
of the Shares by the Selling Stockholders may be effected in transactions on
the
Nasdaq OTC Bulletin Board, in negotiated transactions, or a combination of
such methods of sale. The Shares may be sold at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices. In addition, the Shares of Common Stock covered by this
Reoffer Prospectus may also be sold pursuant to Rule 144 under the Securities
Act, rather than pursuant to this Reoffer Prospectus. Because the Company does
not satisfy the requirements for use of Form S-3 under the Securities Act,
the
number of Shares to be sold by any Selling Stockholder (or any person with
whom
such Selling Stockholders is acting in concert for the purpose of selling
securities of the Company) selling “control securities” or “restricted
securities” (as such terms are defined under the Securities Act), whether
pursuant to this Reoffer Prospectus or otherwise, may not exceed, during any
three-month period, the amount specified by Rule144(e) under the Securities
Act.
The
Selling Stockholders may effect such transactions by selling the Shares directly
to purchasers or through underwriters or broker-dealers who may act as agents
or
principals. Such underwriters or broker-dealers may receive compensation in
the
form of discounts, concessions or commissions from the Selling Stockholders
or
the purchasers of the Shares for whom such underwriters or broker-dealers may
act as agent or to whom they may sell as principal, or both (which compensation
as to a particular underwriter or broker-dealer may be in excess of customary
compensation).
We
will
not receive any of the proceeds from the sale of the Shares, but we will receive
funds in connection with the exercise of stock options relating to such Shares.
While all expenses of registration incurred in connection with this offering
are
being borne by the Company, all brokerage commissions and other expenses
incurred by individual Selling Stockholders will be borne by such Selling
Stockholders.
Under
the
rules and regulations promulgated under the Exchange Act, subject to certain
exceptions, any person engaged in a distribution of securities may not
simultaneously engage in market making activities with respect to such
securities for a period of one business day (if such securities have an average
daily trading volume over a two-month period of $100,000 and the public float
value of the issuer’s equity securities is $25 million or more) or five business
days (in all other cases) prior to the day of the pricing of the securities
that
are the subject of the distribution. Trading in “actively traded securities” by
persons other than the issuer (or Selling Stockholder) and affiliates is exempt
from such restrictions. “Actively traded securities” are securities with an
average daily trading volume of $1,000,000 issued by companies with a public
float of at least $150 million. In addition, and without limiting the foregoing,
the Selling Stockholders and any other person participating in such distribution
will be subject to other applicable provisions of the Exchange Act, including
without limitation, Rules 100 through 105 of Regulation M promulgated under
the
Exchange Act, which provisions may limit the timing of purchases and sales
of
any of the Shares of Common Stock by the Selling Stockholders and any other
such
person.
There
can
be no assurance that any of the Selling Stockholders will sell any or all of
the
Shares of Common Stock offered by them hereunder.
An
investor may only purchase the Shares of Common Stock being offered hereby
if
such shares are qualified for sale or are exempt from registration under the
applicable securities laws of the state in which such prospective purchaser
resides. We have not registered or qualified the Common Stock under any state
securities laws and, unless the sale of such Shares to a particular investor
is
exempt from registration or qualification under applicable state securities
laws, the sale of such Shares to an investor may not be effected until such
Shares have been registered or qualified with applicable state securities
authorities.
The
Company’s Articles of Incorporation contain a provision which, in accordance
with Colorado law, eliminates or limits the personal liability of directors
and
officers of the Company for monetary damages for certain breaches of their
duty
of care or other duties if he or she acted in good faith and in a manner he
or
she believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his or her duty to the
Company unless otherwise determined by the court before which such action was
brought. The Company believes this provision is essential to maintain and
improve its ability to attract and retain competent directors. These
indemnification provisions do not reduce the exposure of directors and officers
to liability under federal and state securities laws, nor do they limit the
shareholders’ ability to obtain injunctive relief or other equitable remedies
for a violation of a director’s or officer’s duty to the Company or its
shareholders, although such equitable remedies may not be an effective remedy
in
certain circumstances.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company is informed that it is the opinion
of
the Securities and Exchange Commission that such indemnification is against
public policy and therefore unenforceable.
The
validity of the Shares of Common Stock offered hereby will be passed upon for
the Company by the Law Offices of Gretchen Cowen, APC of Carlsbad,
California.
The
financial statements incorporated by reference in this Reoffer Prospectus have
been audited by PKF, Certified Public Accountants, A Professional Corporation,
an independent registered public accounting firm, to the extent and for the
period set forth in their report, incorporated herein by reference, and are
incorporated herein in reliance upon such report given upon the authority of
said firm as experts in auditing and accounting.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference
The
following documents previously filed by SpaceDev, Inc. (the “Company”) with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(A)
The
Company’s annual report on Form 10-KSB (Accession No. 0001031833-06-000071)
for the fiscal year ended December 31, 2005.
(B)
All
other
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the
end of the fiscal year covered by the Company’s annual report referred to in (a)
above.
(C) The
description of the Company’s common stock contained in its Registration
Statement on Form 10-SB (File No. 000-28947), pursuant to Section 12(g) of
the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All
reports and documents subsequently filed by it pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 shall be deemed
to be
incorporated by reference in the registration statement and to be part thereof
from the date of filing of such documents.
Item
4.
Description of Securities
Not
applicable.
Item
5.
Interests of Named Experts and Counsel
Not
applicable.
Item
6.
Indemnification of Directors and Officers
The
Company’s Articles of Incorporation contain a provision which, in accordance
with Colorado law, eliminates or limits the personal liability of directors
and
officers of the Company for monetary damages for certain breaches of their
duty
of care or other duties if he or she acted in good faith and in a manner he
or
she believed to be in, or not opposed to, the best interests of the Company,
except that no indemnification shall be made in respect of any claim, issue
or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the Company
unless otherwise determined by the court before which such action was brought.
The Company believes this provision is essential to maintain and improve its
ability to attract and retain competent directors. These indemnification
provisions do not reduce the exposure of directors and officers to liability
under federal and state securities laws, nor do they limit the shareholders’
ability to obtain injunctive relief or other equitable remedies for a violation
of a director’s or officer’s duty to the Company or its shareholders, although
such equitable remedies may not be an effective remedy incertain
circumstances.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company is informed that it is the opinion
of
the Securities and Exchange Commission that such indemnification is against
public policy and therefore unenforceable.
Item
7.
Exemption from Registration Claim
The
Company has granted options to purchase 1,402,900 shares of its common stock
under the Plan pursuant to Rule 701 of the Securities Act of 1933 as follows:
|
Recipient
|
Exercise
Price
|
No.
of Shares
|
|
Curt
D. Blake
|
$1.48
|
93,000
|
|
Wesley
T. Huntress
|
$1.47
|
81,500
|
|
Scott
McClendon
|
$1.47
|
140,000
|
|
Robert
S. Walker
|
$1.48
|
56,500
|
|
Gen.
Howell M. Estes, III
|
$1.46
|
76,500
|
|
Stuart
E. Schaffer
|
$1.47
|
48,000
|
|
Macklin,
Frank
|
$1.40
|
40,000
|
|
Simpson,
Randy
|
$1.41
|
42,400
|
|
Vacek,
Robert
|
$1.46
|
825,000
|
The
exercise price of each of these options is the closing price of the Company’s
common stock on the date of grant.
Item
8.
Exhibits
4.1 The
Company’s 2004 Equity Incentive Plan*
|
4.2
|
Form
of Incentive or Non-statutory Stock Option Grant Notice under the
2004
Equity Incentive Plan, as amended*
|
4.3 First
Amendment to 2004 Equity Incentive Plan
4.4 Second
Amendment to 2004 Equity Incentive Plan
5.1 Opinion
of Law Offices of Gretchen Cowen, A Professional Corporation
|
23.1
|
Consent
of PKF, Certified Public Accountants, A Professional
Corporation
|
23.2 Consent
of Law Offices of Gretchen Cowen, A Professional Corporation. Reference is
made
to Exhibit 5.1
Item
9.
Undertakings
1.
The
undersigned registrant hereby undertakes:
(A)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(I)
To
include any prospectus required by section 10(a)(3) of the Securities
Act;
(II)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post- effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement.
(III)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided,
however, that paragraphs (a)(I) and (a)(II) do not apply if the registration
statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the issuer pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(B)
That,
for the purpose of determining any liability under the Securities Act, each
such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(C)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
2.
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3.
In so
far as indemnification for liabilities arising under the Securities Act may
be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the Poway, State of California, on September 14, 2006.
SpaceDev,
Inc.
By:
/s/
Mark N. Sirangelo
Mark
N.
Sirangelo
Vice-Chairman
of the Board of Directors and Chief
Executive
Officer
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
|
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
| |
|
|
|
|
|
/s/
James W. Benson
|
|
Chairman
of Board of the
|
|
September
14, 2006
|
|
James
W. Benson
|
|
Directors,
Chief Technology
|
|
|
| |
|
Officer
and Director
|
|
|
| |
|
|
|
|
|
/s/
Mark N. Sirangelo
|
|
Vice-Chairman
of the Board of
|
|
September
14, 2006
|
|
Mark
N. Sirangelo
|
|
Directors,
Chief Executive
|
|
|
| |
|
Officer
and Director
|
|
|
| |
|
(principal
executive officer)
|
|
|
| |
|
|
|
|
|
/s/
Richard B. Slansky
|
|
President,
Chief Financial Officer,
|
|
September
14, 2006
|
|
Richard
B. Slansky
|
|
Director,
and Corporate Secretary
|
|
|
| |
|
(principal
financial and accounting
|
|
|
| |
|
officer)
|
|
|
| |
|
|
|
|
|
/s/
Curt Dean Blake
|
|
Director
|
|
September
14, 2006
|
|
Curt
Dean Blake
|
|
|
|
|
| |
|
|
|
|
|
/s/
Howell M. Estes, III
|
|
Director
|
|
September
14, 2006
|
|
Gen.
Howell M. Estes, III
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Wesley T. Huntress
|
|
Director
|
|
September
14, 2006
|
|
Wesley
T. Huntress
|
|
|
|
|
| |
|
|
|
|
|
/s/
Scott McClendon
|
|
Director
|
|
September
14, 2006
|
|
Scott
McClendon
|
|
|
|
|
| |
|
|
|
|
|
/s/
Scott Tibbitts
|
|
Director
|
|
September
14, 2006
|
|
Scott
Tibbitts
|
|
|
|
|
| |
|
|
|
|
|
/s/
Robert S. Walker
|
|
Director
|
|
September
14, 2006
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Robert
S. Walker
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EXHIBIT
INDEX
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4.1
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The
Company’s 2004 Equity Incentive Plan*
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4.2
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Form
of Incentive or Non-statutory Stock Option Grant Notice under the
2004
Equity Incentive Plan, as amended*
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4.3
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First
Amendment to 2004 Equity Incentive Plan
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4.4
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Second
Amendment to 2004 Equity Incentive Plan
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5.1
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Opinion
of Law Offices of Gretchen Cowen, A Professional
Corporation
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23.1
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Consent
of PKF, Certified Public Accountants, A Professional
Corporation
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23.2
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Consent
of Law Offices of Gretchen Cowen, A Professional Corporation. Reference
is
made to Exhibit 5.1
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*
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Previously
Filed.
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