UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): FEBRUARY 6, 2006 (JANUARY 31,
2006)
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SPACEDEV, INC.
(Exact Name of Registrant as Specified in Charter)
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COLORADO 000-28947 84-1374613
(State or Other Jurisdiction (IRS Employer
of Incorporation) (Commission File Number) Identification No.)
13855 STOWE DRIVE, POWAY, CALIFORNIA 92064
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (858) 375-2030
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
PAGE
ITEM 1.01. ENTRY INTO MATERIAL DEFINITIVE AGREEMENTS.
Entry into Employment Agreements.
In connection with the consummation of the merger described in Item 2.01
below, which we refer to as the merger, we entered into employment agreements
with each of Scott Tibbitts and Robert Vacek, which we refer to as the
employment agreements.
The employment agreement with Mr. Tibbitts sets forth the terms of his
employment with us as our managing director and provides for, among other
matters: (1) an initial term of three years, with the option to renew the
agreement for additional one-year terms, (2) a base salary of $12,500 per month,
and (3) performance-based cash bonuses up to 50% of his base salary per year,
based on the achievement of specific goals set forth in the agreement.
The employment agreement with Mr. Vacek sets forth the terms of his
employment with us as our president, Starsys division, and provides for, among
other matters: (1) an initial term of two years, with automatic renewal for a
third year unless either party provides written notice of its intent not to
renew, (2) a base salary of $17,000 per month, subject to adjustment to $18,000
per month after eight months and $19,000 per month after sixteen months, (3)
performance-based cash bonuses up to $75,000 for fiscal year 2006 and $50,000
for fiscal year 2007 based on the achievement of specific goals set forth in the
agreement, and (4) an option to purchase up to 825,000 shares of our common
stock, the vesting of which is based on the achievement of specific goals in the
agreement and under the terms and conditions of our form of stock option
agreement under our 2004 Equity Incentive Plan between us and Mr. Vacek. The
vesting of the option will accelerate in full upon the occurrence of a change in
control of our company.
Under each employment agreement, the executive is an "at-will" employee,
which means that either we or the executive may terminate employment at any
time. However, if the executive's employment with us is terminated without cause
(as that term is defined in the employment agreements), that executive will be
entitled to a severance payment equal to his then-current base salary per month
multiplied by, in the case of Mr. Tibbitts, the number of months remaining in
the term, and in the case of Mr. Vacek, the greater of (a) 12 months and (b) the
number of months remaining in the term. If the executive terminates his
employment with us for good reason (as that term is defined in the employment
agreements), that executive will be entitled to a severance payment equal to his
then-current base salary per month multiplied by the lesser of (a) 12 months and
(b) the number of months remaining in the term, but in no event less than six
months. If we opt not to renew the employment agreement with Mr. Vacek, he will
be entitled to a severance payment equal to his then-current base salary per
month multiplied by six months.
Under each employment agreement, we will indemnify the executive to the
extent provided in our articles of incorporation and our standard
indemnification agreement with our officers, as each may be amended from time to
time. However, we will have no obligation to indemnify or defend either
executive for any action, suit or other proceeding to the extent based on acts,
omissions, events or circumstances occurring prior to the merger.
A copy of the executive employment agreements with Messrs. Tibbitts and
Vacek are attached hereto as Exhibits 99.1 and 99.2, respectively, and each
agreement is incorporated herein by reference. The foregoing descriptions of the
executive employment agreements are qualified in their entirety by reference to
the full text of the agreements.
PAGE 1
Entry into Non-Competition Agreement.
In connection with the consummation of the merger, we also entered into a
non-competition agreement with Mr. Tibbitts, pursuant to which Mr. Tibbitts has
covenanted for a period of three years not to be employed by or have any
interest in an entity that engages in a similar business to Starsys related to
the aerospace industry, not to solicit any business from any past or present
customer of SpaceDev, not to solicit or encourage any of our employees to leave
or to reduce his or her employment, not to encourage a consultant under contract
with us to cease or diminish his or her work with us, not to use our
intellectual property other than for our benefit, and not to make any negative
or disparaging statements regarding us to any third party. We have agreed to
pay Mr. Tibbitts $100,000 annually if he abides by these covenants. In the
event Mr. Tibbitts breaches his covenants, the agreement provides that he will
no longer be entitled to his annual payments and, if the breach was willful and
material, we will not be required to pay Mr. Tibbitts any further consideration
under the merger agreement.
A copy of the non-competition agreement is attached hereto as Exhibit 99.3,
and is incorporated herein by reference. The foregoing description of the
non-competition agreement is qualified in its entirety by reference to the full
text of the agreement.
Entry into Standstill and Lock-up Agreements
In connection with the consummation of the merger, we entered into
standstill and lock-up agreements with pre-merger shareholders of Starsys,
including Messrs. Tibbitts and Vacek, who may have been entitled to receive more
than 50,000 aggregate shares at the closing of the merger and as performance
consideration for the first performance period pursuant to the merger. We refer
to these pre-merger Starsys shareholders as the locked-up shareholders. The
standstill and lock-up agreement prevents the locked-up shareholders from
selling or otherwise transferring the shares of our common stock received at the
closing of the merger, or to transfer an economic interest in these shares, for
a period of 270 days after the closing, except for some exempt transactions. In
addition, for a period of three years after the closing, the standstill and
lock-up agreements restrict the locked-up shareholders from attempting to obtain
control of our company, including by prohibiting those shareholders from
soliciting other shareholders and from acquiring beneficial ownership of any
shares of our common stock if, after the acquisition, the shareholder would
beneficially own more than 5% of the outstanding shares of our common stock.
A copy of the form of standstill and lock-up agreement is attached hereto
as Exhibit 99.4, and is incorporated herein by reference. The foregoing
description of the standstill and lock-up agreement is qualified in its entirety
by reference to the full text of the agreement.
Entry into Escrow Agreement and Amendment No. 2 of Agreement and Plan of Merger
and Reorganization.
On January 31, 2006, we entered into an escrow agreement with Zions First
National Bank, N.A., as escrow agent, and Scott Tibbitts, as shareholder agent
for the pre-merger shareholders of Starsys. Mr. Tibbitts became our managing
director and a director of our board of directors upon consummation of the
merger. The escrow agent is responsible for establishing, maintaining and
administrating the escrow account and the shareholder agent's expense fund. On
the same date, we amended the merger agreement. For more information on the
merger amendment and escrow agreement, see Item 2.01.
A copy of the amendment no. 2 to the merger agreement and of the escrow
agreement are attached hereto as Exhibits 2.3 and 2.4, respectively, and are
incorporated herein by reference. The descriptions of the merger amendment and
escrow agreement above and in Item 2.01 are qualified in their entirety by
reference to the full text of the amendment and agreement.
PAGE 2
Amendment of 2004 Equity Incentive Plan.
In November 2005, our Board of Directors approved Amendment No. 2 to our
2004 Equity Incentive Plan, which we refer to as the plan amendment, subject to
shareholder approval. On January 30, 2006, at the special meeting of our
shareholders described in Item 8.01, our shareholders approved the plan
amendment and it became effective at that time. The plan amendment increased by
3,000,000 shares the number of authorized shares under the plan; added per
person annual share grant limits; and clarified the limitation on the number of
shares which may be issued per participant as incentive stock options.
A copy of the plan amendment is attached hereto as Exhibit 99.5 and is
incorporated herein by reference. The foregoing description of the plan
amendment is qualified in its entirety by reference to the full text of the plan
amendment.
For more information about our 2004 Equity Incentive Plan, please see the
joint proxy statement/prospectus included as a part of Amendment No. 1 to our
Registration Statement on Form S-4 (File No. 333-130244) filed with the SEC on
December 28, 2005.
ITEM 1.02. TERMINATION OF MATERIAL DEFINITIVE AGREEMENTS.
Upon consummation of the merger on January 31, 2006, we canceled and
terminated the $1.2 million secured bridge loan we extended to Starsys on
September 8, 2005, and we repaid and terminated Starsys' credit facility with
Vectra Bank Colorado and Starsys' subordinated loans from four of its
shareholders. See the disclosure under the heading "Termination of Loans" in
Item 2.01 for a description of these terminations.
ITEM 2.01. COMPLETION OF ACQUISITION OF ASSETS.
Acquisition of Starsys
On January 31, 2006, we completed the acquisition of Starsys Research
Corporation pursuant to an agreement and plan of merger and reorganization,
which we refer to as the merger agreement, with Starsys Research Corporation,
Scott Tibbitts, its largest shareholder, and Scott Tibbitts, as shareholder
agent for the other shareholders of Starsys. The merger agreement was dated
October 24, 2005 and amended on December 7, 2005 and January 31, 2006. Pursuant
to the merger agreement, Starsys merged with and into a newly-created,
wholly-owned subsidiary of our company. Immediately after the merger, the
subsidiary was renamed Starsys, Inc.
Starsys shareholders received approximately $411,000 in cash and 3.8
million shares of our common stock at the consummation of the merger. We also
paid approximately $705,000 in Starsys transaction expenses connected to the
merger.
Following the merger, the pre-merger Starsys shareholders may also be
entitled to receive additional performance consideration, based on the
achievement by the Starsys business of specific financial performance criteria
for fiscal years 2005, 2006 and 2007. This consideration could consist of up to
an aggregate of $1,050,000 in cash and shares of our common stock valued at up
to $18 million, subject to reduction for some merger related expenses and to
escrow arrangements, as follows:
- For the fiscal year ended December 31, 2005, up to $350,000 in cash and
up to an aggregate number of shares of our common stock equal to (A) up to
$3 million divided by (B) the volume weighted average price of our common
stock for the twenty trading days preceding the date of the audit opinion
for Starsys' fiscal year ended December 31, 2005, but not less than $2.00
per share;
PAGE 3
- For the fiscal year ended December 31, 2006, up to $350,000 in cash and
up to an aggregate number of shares of our common stock equal to (A) up to
$7.5 million divided by (B) the volume weighted average price of our common
stock for the twenty trading days preceding the date of the audit opinion
for Starsys' fiscal year ended December 31, 2006, but not less than $2.50
per share; and
- For the fiscal year ended December 31, 2007, up to $350,000 in cash and
up to an aggregate number of shares of our common stock equal to (A) up to
$7.5 million divided by (B) the volume weighted average price of our common
stock for the twenty trading days preceding the date of the audit opinion
for Starsys' fiscal year ended December 31, 2007, but not less than $3.00
per share.
Starsys shareholders will be entitled to receive the maximum amount of
performance consideration for a particular fiscal year if we breach specified
covenants of the merger agreement and are unable to cure the breach within
applicable the cure period set forth in the merger agreement.
Approximately one-half of the shares issued to Starsys shareholders at the
closing have been placed in escrow to satisfy indemnification obligations of
Starsys shareholders under the merger agreement and to pay reasonable expenses
of the shareholder agent. Approximately one-half of the shares (if any) to be
issued for the first performance period will similarly be placed in escrow. The
indemnification escrow will generally last until ten days following the date of
audited financial statements prepared for the Starsys business for the fiscal
year ending 2006 (approximately April 2007). In addition, 1% of any shares of
SpaceDev common stock payable as performance consideration will be paid as
transaction expenses to Robert Vacek, who became our president, Starsys
division, after the merger and who was the president of Starsys prior to the
merger.
The outstanding shares of our common stock remained unchanged in the
merger. For more information about the merger agreement and the merger, please
see the joint proxy statement/prospectus included as a part of Amendment No. 1
to our Registration Statement on Form S-4 (File No. 333-130244) filed with the
SEC on December 28, 2005 and the joint proxy statement/prospectus supplements
included in Forms 8-K filed with the SEC on January 24, 2006 and January 30,
2006.
Scott Tibbitts, who became our managing director and a director of our
board of directors after the merger, and Robert Vacek, who became our president,
Starsys, Inc., a division of SpaceDev, Inc., after the merger, were both
shareholders, directors and/or officers of Starsys prior to the merger and
received merger consideration as part of the merger. For more information about
the relationships between us and Messrs. Tibbitts and Vacek, see Items 1.01 and
5.02.
Working Capital Contribution.
Under the merger agreement, we are obligated to contribute $2.5 million to
the working capital of the Starsys business through the end of 2006, half of
which must be contributed by March 2, 2006.
Reservation of Options.
Under the merger agreement, we have agreed to reserve for issuance to
Starsys officers, employees and consultants options to buy a number of shares of
our common stock equal to at least 15% of the number of shares of SpaceDev
common stock issued at the closing of the merger, or approximately 570,000
shares, or as performance consideration. At the special meeting of our
shareholders held on January 30, 2006, we sought and obtained approval from our
shareholders to increase the amount of shares of common stock available for
awards under our 2004 Equity Incentive Plan by 3,000,000 shares to provide
sufficient reserves for the issuance of the options referenced above. For more
information about the shareholder meeting, see Item 8.01.
PAGE 4
Termination of Loans
On March 30, 2005, Starsys entered into a secured credit facility with
Vectra Bank Colorado. The facility included a $4.25 million line of credit,
which accrued interest at a prime rate plus 0.5% and matured March 30, 2006, a
$2.1 million term note A which accrued interest at 7.25% and matured April 1,
2010, and a $1.25 million term note B which accrued interest at LIBOR plus 5%
and matured March 30, 2006. On June 24, 2005, Starsys entered into a
forbearance agreement for various financial covenant and other violations under
its existing loans with Vectra, which provided for default interest rates of
prime rate plus 3.5% on the line of credit, 10.25% on the term note A and LIBOR
plus 8% on the term note B. The forbearance agreement also required Starsys to
raise the necessary capital to bring Starsys in compliance with its borrowing
base and other financial covenants and to provide progress payments toward
repayment of the outstanding loans via cash equity infusions. The forbearance
agreement also accelerated and amended the maturity date of the term note B from
March 30, 2006 to the earlier of the required cash equity amounts received or
January 31, 2006.
On July 26, 2005, Starsys raised $800,000 from current shareholders to make
the first progress payment under the Vectra forbearance agreement. The
shareholder loans had a 10% premium, which was capitalized to principal and
accrued interest at 15% per annum. These loans would have matured on March 31,
2006.
On September 8, 2005, we entered into a secured bridge loan facility with
Starsys under which we loaned Starsys $1.2 million until December 31, 2005 for
the purpose of Starsys making the second progress payment under the Vectra
forbearance agreement. The bridge loan accrued interest at 8% per annum and was
originally set to mature on December 31, 2005, or earlier in certain
circumstances. On December 20, 2005, we agreed to extend the final maturity date
of the bridge loan until January 31, 2006. No principal or interest payments
were due before maturity. For more information on this bridge loan, please see
our Form 8-K filed with the SEC on September 14, 2005.
In connection with the consummation of the merger with Starsys on January
31, 2006, pursuant to which Starsys became a wholly-owned subsidiary of our
Company:
- We paid off in full the remaining principal and interest of all loans
extended to Starsys by Vectra pursuant to the credit facility and
forbearance agreement, together with all other costs incurred in connection
with those loans, which aggregated approximately $3.7 million. The credit
facility and associated security agreements with Vectra were terminated
upon receipt of the payment by Vectra.
- We cancelled and terminated our $1.2 million secured bridge loan to
Starsys, together with accrued interest, in accordance with the terms of
the merger agreement.
- We paid off in full the remaining principal and interest of all
subordinated loans extended to Starsys by four of its shareholders, which
aggregated approximately $944,000. The notes evidencing the loans were
terminated upon receipt of payment in full by the individual Starsys
shareholders.
Shareholder Agent
Under the merger agreement and escrow agreement, Scott Tibbitts, who became
our managing director and a director of our board of directors upon the
consummation of the merger, is the shareholder agent for the pre-merger
shareholders of Starsys. The shareholder agent is the exclusive representative
and agent of the pre-merger Starsys shareholders under the merger agreement and
the escrow agreement and, as such, is responsible for the following:
PAGE 5
- Acting with respect to claims made or potentially made against, or
any other action to be taken by or on behalf of, any shareholders pursuant to
the merger agreement or the escrow agreement or otherwise in connection with the
merger, including with respect to any indemnification claims, performance
consideration calculations, breaches of representations, warranties or covenants
and any other matters;
- Providing and receiving notices and communications from and to us, the
escrow agent, Starsys shareholders or other persons;
- Negotiating, arbitrating and settling indemnification claims;
- Satisfying indemnity claims from us and related persons described in the
merger agreement from the escrow account; and
- Agreeing to amendments and waivers of the merger agreement and escrow
agreement.
The shareholder agent is not compensated for his services. At the closing
of the merger, on behalf of the pre-merger Starsys shareholders, we transferred
69,754 shares of our common stock from the escrow account to a separate escrow
account, which separate escrow account we refer to as the expense fund. The
escrow agent will maintain the expense fund solely for the purpose of paying the
out-of-pocket fees and expenses, including independent accounting firm fees and
attorneys' fees, reasonably incurred by the shareholder agent in connection with
performing and exercising his duties under the merger agreement and escrow
agreement. The shares held in the expense fund may not be sold or otherwise
transferred until October 28, 2006. The expense fund will be terminated after
the escrow period has lapsed and the final determination of the performance
consideration (if any) for the final performance period. Upon termination any
remaining assets will be transferred to the escrow account for release and
distribution in accordance with its terms.
Under the escrow agreement, the shareholder agent may resign at any time by
written notice to us and the escrow agent, and the shareholder agent may be
removed at any time by written notice signed by pre-merger Starsys shareholders
holding not less than a majority of the shares of Starsys common stock
outstanding immediately preceding the merger. The pre-merger Starsys
shareholders will be responsible for appointing a successor shareholder agent by
act of pre-merger Starsys shareholders holding not less than a majority of the
shares of Starsys outstanding immediately preceding the merger. To qualify, the
successor shareholder agent must be Mr. Tibbitts, a pre- or post-merger director
or officer of Starsys, or reasonably acceptable to us. If the shareholders fail
to appoint a successor shareholder agent within ten days of the resignation or
removal of the shareholder agent, we may petition a proper court to appoint a
successor. Any successor shareholder agent under the escrow agreement will
automatically, without any further act or notice, become the successor
shareholder agent for all purposes of the merger agreement.
Funding
On January 12, 2006, we entered into a securities purchase agreement with a
limited number of institutional accredited investors. On January 13, 2006, we
issued and sold to these investors 5,150 shares of our Series D-1 Amortizing
Convertible Perpetual Preferred Stock under the purchase agreement for an
aggregate purchase price of $5.15 million, or $1,000 per share. We also issued
various warrants to these investors. The proceeds of this financing were used
to repay the loans described above, to pay certain transaction expenses incurred
by Starsys and by us in connection with the merger and/or to pay the cash
consideration to the Starsys shareholders. For more information about this
financing, please see our Form 8-K filed with the SEC on January 13, 2006.
PAGE 6
Amendment of Agreement and Plan of Merger and Reorganization.
On January 31, 2006, we entered into amendment no. 2 to the merger
agreement, which we refer to as the merger amendment. The merger amendment
allocates responsibility under the merger agreement for the content of the joint
proxy statement/prospectus included as a part of the Amendment No. 1 to our
Registration Statement on Form S-4 (File No. 333-130244) filed with the SEC on
December 28, 2005, and the two joint proxy statement/prospectus supplements
thereto filed with the SEC on January 24, 2006 and January 30, 2006; consents to
and waives certain transactions Starsys engaged to after the signing of the
merger agreement and prior to the consummation of the merger; and increases our
indemnification rights under the merger agreement related to export laws.
A copy of the merger amendment is attached hereto as Exhibit 2.3 and is
incorporated herein by reference. The foregoing description of the merger
amendment is qualified in its entirety by reference to the full text of the
merger amendment.
ITEM 5.02. ELECTION OF DIRECTOR; APPOINTMENT OF PRINCIPAL OFFICER.
Election of New Director.
On January 30, 2006, our board of directors appointed Scott Tibbitts as a
director of our company, commencing February 1, 2006, pursuant to the terms of
the merger agreement described in Item 2.01. Mr. Tibbitts was also appointed as
managing director of our company, an executive officer position, commencing on
January 31, 2006. We also entered into an executive employment agreement and a
non-competition agreement with Mr. Tibbitts which are described under Item 1.01.
Prior to the merger described in Item 2.01, Mr. Tibbitts was a guarantor of
Starsys' obligations under a forbearance agreement between Starsys and Vectra
Bank of Colorado, Starsys' primary lender, dated June 24, 2005. Pursuant to the
merger agreement, SpaceDev paid approximately $3.7 million to satisfy in full
Starsys' obligations to Vectra under the forbearance agreement at the closing of
the merger, and Mr. Tibbitts was removed as a guarantor of those obligations.
Jack Tibbitts, Steve Tibbitts, and Ted Tibbitts, relatives of Scott
Tibbitts, each loaned $100,000 to Starsys pursuant to subordinated notes issued
by Starsys. Each of these loans had a loan premium of $10,000 and bore interest
at 15% per annum. Pursuant to the merger agreement, SpaceDev paid $354,000 to
satisfy in full Starsys' obligations under these loans at the closing of the
merger.
Immediately prior to the consummation of the merger, Scott Tibbitts
beneficially owned approximately 45% of the total outstanding shares of Starsys
capital stock. Mr. Tibbitts received approximately 1.7 million shares of our
common stock at the closing of the merger, half of which are subject to the
escrow arrangements described under Item 2.01.
At the special meeting of shareholders of Starsys held on January 30, 2006,
the shareholders of Starsys appointed Mr. Tibbitts to act as shareholder agent
under the merger agreement and related escrow agreement. The shareholder agent
is the exclusive agent of the pre-merger Starsys shareholders under the merger
agreement, as described under the caption "Shareholder Agent" in Item 2.01.
Scott Tibbitts co-founded Starsys in 1988 and has served as its president
and chief executive officer, and as a member of its Board of Directors, from
1988 until May 2005; and since May 2005 has served as chief executive officer
and a member of the Board of Directors. From 1986 to 1988, Mr. Tibbitts served
as the Engineering Manager for Maus Technologies, Inc., a developer of high
technology domestic water heaters and thermal actuator technologies. Mr.
Tibbitts holds a B.S. in Chemical Engineering from the University of Wisconsin.
PAGE 7
Appointment of President, Starsys Division.
On January 31, 2006, Robert Vacek was appointed as our president, Starsys
division, pursuant to the terms of his employment agreement described in Item
1.01. We entered into an executive employment agreement with Mr. Vacek that is
described under Item 1.01.
Pursuant to his employment agreement with Starsys entered into prior to the
merger on June 10, 2005, Mr. Vacek was entitled to a bonus in connection with
the merger of Starsys into our wholly-owned subsidiary described in Item 2.01.
The amount of the bonus equaled 1% of the total consideration for the merger.
Pursuant to that employment agreement and the merger agreement, SpaceDev paid
Mr. Vacek approximately $65,000 in cash and 38,000 shares of our common stock,
valued at approximately $56,000, at the closing (half of which stock is subject
to the escrow provisions described under Item 2.01), and will pay him 1% of the
performance consideration, if any, to be paid in cash and stock to Starsys
shareholders for fiscal years 2005, 2006 and 2007.
Mr. Vacek has served as president and general manager of Starsys since June
2005. From November 2004 to June 2005, Mr. Vacek served as Vice President of
Programs of Starsys. From 1996 until joining Starsys, Mr. Vacek held a variety
of management positions at Ball Aerospace and Technologies Corp., a provider of
advanced imaging, communications and information solutions to the aerospace
market, including director of Defense Systems. Mr. Vacek holds a B.S. in
electrical engineering from the University of Minnesota and an MBA from the
University of New Mexico.
ITEM 8.01. OTHER EVENTS.
Special Meeting of Shareholders.
On January 30, 2006, at a special meeting of our shareholders, our
shareholders approved each of the following proposals, as described in the joint
proxy statement/prospectus included as a part of the Amendment No. 1 to our
Registration Statement on Form S-4 (File No. 333-130244) filed with the SEC on
December 28, 2005:
Proposal No. 1 - To adopt and approve the Agreement and Plan of Merger and
Reorganization (referred to in this joint proxy statement/prospectus as the
merger agreement) dated as of October 24, 2005, as amended, with Starsys
Research Corporation, Monoceros Acquisition Corp., our wholly-owned
subsidiary, and certain other parties, and to approve the merger
contemplated thereby and the issuance and reservation for issuance of
shares of our common stock to Starsys shareholders pursuant to the merger
agreement. Of the 24,410,196 shares of our outstanding common stock,
15,720,249 shares (or 64.4%) voted in person or by proxy on this proposal,
with over 99.4% of those shares voted in favor of the proposal.
Proposal No. 2 - To approve amendments to our 2004 Equity Incentive Plan:
(1) to increase the number of authorized shares under the plan by 3,000,000
shares of our common stock; (2) to add per person annual share award
limits; and (3) to clarify the limitation on the number of shares which may
be issued as incentive stock options. Of the 24,410,196 shares of our
outstanding common stock, 15,720,249 shares (or 64.4%) voted in person or
by proxy on this proposal, with over 94.9% of those shares voted in favor
of the proposal.
Proposal No. 3 - To approve an amendment to our articles of incorporation
to increase the number of authorized shares of common stock by 50,000,000
shares, to a total of 100,000,000 shares. Of the 24,410,196 shares of our
outstanding common stock, 15,720,252 shares (or 64.4%) voted in person or
by proxy on this proposal, with over 97.4% of those shares voted in favor
of the proposal.
PAGE 8
Proposal No. 4 - To give to our board of directors discretionary authority
to sell more than 20% of our common stock (or securities convertible into
or exercisable for common stock) in one or more private financings. Of the
24,410,196 shares of our outstanding common stock, 15,720,252 shares (or
64.4%) voted in person or by proxy on this proposal, with over 97.2% of
those shares voted in favor of the proposal.
Increase in Board Size.
Effective on January 30, 2006, our board of directors increased from 10 to
11 the number of our authorized directors and appointed Mr. Tibbitts to fill the
vacancy created by the new board seat, as discussed more fully in Item 5.02,
effective on the closing date of the merger.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
Financial Statements of Businesses Acquired.
The audited financial statements of Starsys Research Corporation for the
years ended December 31, 2004 and 2003, and the unaudited financial statements
of Starsys Research Corporation for the nine-month period ended September 30,
2005, are filed with this report as Exhibit 99.6 and 99.7, respectively, and
incorporated by reference herein.
Pro Forma Financial Information.
The unaudited pro forma combined consolidated balance sheet of SpaceDev,
Inc. and Starsys Research Corporation as of September 30, 2005, and the
unaudited pro forma combined consolidated statements of operations of SpaceDev,
Inc. and Starsys Research Corporation for the year ended December 31, 2004, and
for the nine months ended September 30, 2005, are filed with this report as
Exhibit 99.8 and incorporated by reference herein.
Exhibits.
2.1 Agreement and Plan of Merger and Reorganization dated as of October 24,
2005 (incorporated by reference to Exhibit 2.1 to the Form 8-K filed on
October 26, 2005)
2.2 Amendment No. 1 to Agreement and Plan of Merger and Reorganization dated as
of December 7, 2005 (incorporated by reference to Exhibit 2.1 to the Form
8-K filed on December 13, 2005)
2.3 Amendment No. 2 to Agreement and Plan of Merger and Reorganization dated as
of January 31, 2006 *
2.4 Escrow Agreement dated as of January 31, 2006 *
23.1 Consent of Clifton Gunderson LLP
99.1 Executive Employment Agreement with Scott Tibbitts dated January 31, 2006
99.2 Executive Employment Agreement with Robert Vacek dated January 31, 2006
99.3 Non-Competition Agreement with Scott Tibbitts dated January 31, 2006
99.4 Form of Standstill and Lock-up Agreement
99.5 Amendment No. 2 to the SpaceDev 2004 Equity Incentive Plan
99.6 Audited Financial Statements of Starsys Research Corporation for the years
ended December 31, 2004 and 2003
99.7 Unaudited Financial Statements of Starsys Research Corporation for the
nine-month period ended September 30, 2005
99.8 Unaudited pro forma Combined Consolidated Financial Statements of SpaceDev,
Inc. and Starsys Research Corporation for the nine-month period ended
September 30, 2005 and for the year ended December 31, 2004
* Certain schedules have been omitted and SpaceDev agrees to furnish to the SEC
supplementally a copy of any omitted schedules upon request.
PAGE 9
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: February 6, 2006 By: /s/ RICHARD B. SLANSKY
-------------------------
Richard B. Slansky
President & Chief Financial Officer
PAGE 10