form8-k.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of Earliest Event Reported): October 20, 2008
SPACEDEV,
INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
|
000-28947
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84-1374613
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
|
13855
Stowe Drive, Poway, California
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92064
|
|
(Address
of Principal Executive Offices)
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(Zip
Code)
|
Registrant’s
Telephone Number, Including Area Code: (858) 375-2000
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement
On
October 20, 2008, SpaceDev, Inc, a Delaware corporation (the “Company”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”) with Sierra Nevada
Corporation, a Nevada company (“Parent”), and SDV Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub”).
The
Merger Agreement provides for the acquisition of the Company by Parent by way of
a statutory merger of Merger Sub with and into the Company (the “Merger”), with
the Company surviving the Merger as a wholly owned subsidiary of
Parent. Under the Merger Agreement, the holders of the Company’s
common stock will receive, in the aggregate with respect to their shares of
common stock, an amount equal to $38 million less amounts (where applicable, in
excess of stated thresholds) paid to repurchase, redeem or terminate the
Company’s preferred stock, stock options and certain warrants, or to satisfy
certain other expenses. After taking account anticipated expenses
associated with such matters, it is expected that upon consummation of the
merger, each outstanding share of common stock of the Company, other than any
dissenting shares, will be cancelled and converted into the right to receive
between $0.68 and $0.72 in cash, without interest. The final amount
payable to holders of common stock at the effective time of the Merger will vary
based upon, among other things, the amount of such expenses actually incurred by
the Company and the effect, if any, of certain adjustment provisions set forth
in the Merger Agreement.
The
closing of the Merger is subject to certain closing conditions, including
adoption of the Merger Agreement by the Company’s stockholders.
Either
party may terminate the Merger Agreement under certain circumstances including
if the Merger is not consummated by December 31, 2008 (subject to extension in
the event that the Company’s proxy materials regarding the Merger are reviewed
by the Securities and Exchange Commission).
The
Merger Agreement contains a 45-day “window-shop” provision.
The
Company may terminate the Merger Agreement under certain specified
circumstances, including if its Board of Directors determines in good faith that
it has received an unsolicited superior proposal, and otherwise complies with
certain terms of the Merger Agreement. In connection with such
termination, the Company would have to pay a fee of $1.5 million to Parent. The
$1.5 million fee is also payable in other limited circumstances involving a
termination of the Merger Agreement.
The
foregoing summary of the Merger Agreement and the transactions contemplated
thereby do not purport to be complete and is subject to, and qualified in its
entirety by, the full text of the Merger Agreement.
The
Merger Agreement has been attached hereto to provide investors and security
holders with information regarding its terms. It is not intended to provide any
other factual information about the Company. The representations, warranties and
covenants contained in the Merger Agreement were made only for purposes of such
agreement and as of the specific dates therein, were solely for the benefit of
the parties to such agreement and may be subject to limitations agreed upon by
the contracting parties, including being qualified by confidential disclosures
exchanged between the parties in connection with the execution of the Merger
Agreement. The representations and warranties may have been made for the
purposes of allocating contractual risk between the parties to the agreement
instead of establishing those matters as facts, and may be subject to standards
of materiality applicable to the contracting parties that differ from those
applicable to investors. Investors are not third party beneficiaries under the
Merger Agreement and should not rely on the representations, warranties and
covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company, Parent, Merger Sub or any of their
respective subsidiaries or affiliates. Moreover, information concerning the
subject matter of the representations and warranties may change after the date
of the Merger Agreement, which subsequent information may or may not be fully
reflected in the Company’s public disclosures.
It is expected that a special meeting
of stockholders of the Company to consider the Merger Agreement will be held in
the fourth quarter of 2008 and that, if the stockholders approve the Merger
Agreement, the Merger would be consummated promptly after the stockholders
meeting. Parent has advised the Company that certain officers,
directors and stockholders of the Company, beneficially owning in the aggregate
approximately 37% of the Company’s common stock (calculated in accordance with
Securities Exchange Act Rule 13d-3), have agreed to vote their shares in favor
of the Merger and have granted proxies to Parent for that purpose. A
form of Voting Agreement and Irrevocable Proxy is filed as an exhibit hereto and
incorporated herein by reference.
Item 8.01
Other Events
On
October 20, 2008, the Company and Parent issued separate but related press
releases announcing that they had entered into the Merger
Agreement.
A copy of
the Company’s press release is furnished as Exhibit 99.1.
Additional
Information and Where To Find It
In
connection with the proposed transaction, a proxy statement of the Company and
other materials will be filed with the Securities and Exchange Commission
(“SEC”). COMPANY INVESTORS ARE URGED TO READ THE PROXY STATEMENT AND THE OTHER
MATERIALS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT THE COMPANY AND THE PROPOSED
TRANSACTION. Investors will be able to obtain copies of the proxy
statement (when available) as well as other filed documents containing
information about the Company without charge at www.sec.gov, the SEC’s internet
site. Copies of the Company’s SEC filings are also available without charge on
the Company’s internet site at www.spacedev.com. Stockholders may also obtain
copies of these documents without charge by requesting them from the Company in
writing at 13855 Stowe Drive, Poway, CA 92064, or by phone at (858)
375-2026.
The
Company and its directors and executive officers may be deemed participants in
the solicitation of proxies from the stockholders of the Company in connection
with the proposed transaction. Information regarding the interests of these
directors and executive officers in the proposed transaction will be included in
the proxy statement/prospectus described above. Additional information regarding
the directors and executive officers of the Company is also included in the
Company’s Annual Report on Form 10-KSB which was filed with the SEC on March 28,
2008. Investors may obtain additional information regarding the
direct and indirect interests of the Company, Parent and their respective
executive officers and directors in the proposed transactions by reading the
proxy statement and other public filings referred to above.
Forward
Looking Information
This
report may contains, among other things, certain statements of a forward-looking
nature. Such statements include all statements other than those made
solely with respect to historical fact. Numerous risks, uncertainties
and other factors may cause actual results to differ materially from those
expressed in any forward-looking statement. These factors include,
but are not limited to, (1) the occurrence of any event, change or other
circumstance that could give rise to the termination of the Merger Agreement;
(2) the outcome of any legal proceedings that may be instituted against the
Company and others following the announcement of the Merger Agreement; (3) the
inability to complete the Merger due to the failure to obtain stockholder
approval or the failure to satisfy other conditions to the Merger; (4) risks
that the proposed transaction disrupts current plans and operations and the
potential difficulties in employee retention as a result of the Merger; and (5)
other factors described in the Company’s filings with the Securities and
Exchange Commission, including its reports on Forms 10-KSB, 10-Q, and
8-K. Except as may be required by law, the Company undertakes no
obligation to revise or update any forward-looking statements, or to make any
other forward-looking statements, whether as a result of new information, future
results or otherwise.
ITEM
9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d)
EXHIBITS.
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2.1 Agreement
and Plan of Merger, effective October 20, 2008, by and among Parent,
Merger Sub and the Company*
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10.1
Form of
Voting Agreement and Irrevocable Proxy between Parent and certain
officers, directors and security holders of the
Company
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99.1 Press
Release of SpaceDev, Inc., dated October 20,
2008
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*
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Schedules
and exhibits omitted pursuant to Item 601(b)(2) of Regulation
S-K. The Company agrees to furnish supplementally a copy
of any omitted schedule to the Securities and Exchange Commission upon
request.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
SPACEDEV, INC.
Date: October
20,
2008 By: /s/ Richard B. Slansky
Richard B.
Slansky
President
& Chief Financial Officer