SPACEDEV, INC. AMENDMENT TO THE STOCKHOLDER AGREEMENT
AMENDMENT
TO THE
This
Amendment (the “Amendment”) to the Stockholder
Agreement dated September 14, 2007
(the “Agreement”)
is made as of December 12, 2007 by and among SpaceDev,
Inc., a Delaware corporation (the
“Company”) and the stockholders
listed on Exhibit A to
the Agreement (the
“Stockholders”). Capitalized terms which
are not otherwise defined shall have the same meaning as in the
Agreement.
Recitals
Whereas,
the Stockholders hold 7,095,566 shares (the “Prior
Shares”) of the Company’s common stock, $.0001 par value per share
(the “Common Stock”) and are parties to the
Agreement.
Whereas,
the Stockholders are purchasing 877,563 shares of the Company’s Common
Stock (the “Current Shares” and collectively with the
Prior Shares, the “Shares”) pursuant to a Stock
Purchase Agreement dated as of the date hereof (the “Purchase
Agreement”).
Whereas,
the Stockholders hold at least a majority of the Prior Shares and desire to
amend the Agreement to conform certain rights under the Agreement to the rights
provided to Loeb Partners Corporation under the Stockholder Agreement dated
November 29, 2007 and to add the Current Shares as Shares under the
Agreement.
Agreement
Now,
Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree hereto as follows:
1. The
definition of Shares in the Agreement is hereby amended to mean both the Prior
Shares and the Current Shares.
2. Section
4.1 of the Agreement is hereby amended and restated in its entirety as
follows:
“4.1 General.
(a) Each
Stockholder agrees not to make any disposition of all or any portion of the
Shares issued pursuant to the Purchase Agreement unless and until:
(i) there
is
then in effect a registration statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with such
registration statement; or
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(ii) (A) the
transferee has agreed in writing to be bound by the terms of this Agreement,
(B) such Stockholder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement
of
the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Stockholder shall have furnished
the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that
such disposition will not require registration of such shares under the
Securities Act.
(b) Notwithstanding
the provisions of subsection (a) above, no such restrictions shall apply to
a
transfer by a Stockholder that is (A) corporation transferring to any
Affiliate or other affiliated entity, including, without limitation, any
subsidiary or parent corporation, or affiliated partnership or limited liability
company, (B) a limited liability company transferring to Affiliates, its
members or former members in accordance with their interest in the limited
liability company or (C) any other form of entity transferring to Affiliates;
provided that in each case the transferee will agree in writing to be subject
to
the terms of this Agreement to the same extent as if he, she or it were the
original Stockholder hereunder.
(c) Each
certificate representing Shares shall be stamped or otherwise imprinted with
legends substantially similar to the following (in addition to any legend
required under applicable state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
SALE,
PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDER
AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
(d) Any
legend endorsed on an instrument pursuant to applicable state securities laws
and the stop-transfer instructions with respect to such securities shall be
removed upon receipt by the Company of an order of the appropriate blue sky
authority authorizing such removal.
(e) The
Company shall be obligated to reissue promptly unlegended certificates at the
request of a Stockholder, if such Stockholder shall have obtained an opinion
of
counsel reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.”
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3. Section
5.3(a) of the Agreement is hereby amended and restated in its entirety as
follows:
(a) “Make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144 or any similar or analogous rule promulgated under the
Securities Act; and”
4. Section
5.4 of the Agreement is hereby amended and restated in its entirety as
follows:
“5.4 Registration
Rights.
(a) Demand
Registration.
(i) If
the
Company shall receive a written request from the holders (the
“Initiating Holders”) of a majority of the Shares
purchased by the Stockholder from the Company pursuant to the Purchase Agreement
that the Company file a registration statement under the Securities Act covering
the registration of such Shares, then the Company shall, within
thirty (30) days of the receipt thereof, effect, as expeditiously as reasonably
possible, the registration under the Securities Act of all such
Shares.
(ii) The
Company shall not be required to effect a registration pursuant to this
Section 5.4(a):
(A) prior
to
first anniversary of the date of this
Agreement;
(B) after
the
Company has effected one registration pursuant to this
Section 5.4(a), and such registration has been declared or ordered
effective;
(C) during
the period starting with the date of filing of, and ending on the date one
hundred eighty (180) days following the effective date of a registration
statement pertaining to a public offering of Company Common Stock by the
Company, provided that the Company makes
reasonable good faith efforts to cause such registration statement to become
effective;
(D) if
within
thirty (30) days of receipt of a written request from the Initiating Holders,
the Company gives notice to the Initiating Holders of the Company’s intention to
file a registration statement pertaining to a public
offering of Company Stock by the Company within ninety
(90) days;
(E) if
the
Company shall furnish to the Initiating Holders a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Board
of
Directors of the Company, it would be seriously detrimental to the Company
and
its stockholders for such registration statement to be effected at such time,
in
which event the Company shall have the right to defer such filing for a period
of not more than one hundred twenty (120) days after receipt of the request
of
the Initiating Holders; provided that such right to delay a request
shall be exercised by the Company not more than twice in any twelve (12) month
period; or
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(F) in
any
particular jurisdiction in which the Company would be required to qualify to
do
business or to execute a general consent to service of process in effecting
such
registration, qualification or compliance.
(iii) The
Company shall use all commercially reasonable efforts to cause such registration
statement to become effective, and, upon the request of the Initiating Holders,
keep such registration statement effective so long as the participating
Stockholders continue to beneficially own, in the aggregate, in excess of an
aggregate of 4.99% of the Company’s issued and outstanding Common
Stock. Notwithstanding the foregoing, at any time, upon written
notice to the participating Stockholders and for a period not to exceed sixty
(60) days thereafter (the “Suspension Period”), the
Company may delay the effectiveness of any registration statement or suspend
the
use or effectiveness of any registration statement (and the participating
Stockholders hereby agree not to offer or sell any Shares pursuant to such
registration statement during the Suspension Period) if the Company’s Board of
Directors, upon the written advice of counsel, reasonably believes that the
Company may, in the absence of such delay or suspension hereunder, be required
under state or federal securities laws to disclose any corporate development
the
disclosure of which could reasonably be expected to have a material adverse
effect upon the Company and its stockholders, a potentially significant
transaction or event involving the Company, or any negotiations, discussions,
or
proposals directly relating thereto. In the event that the Company
shall exercise its right to delay or suspend the filing or effectiveness of
a
registration hereunder, the applicable time period during which the registration
statement is to remain effective shall be extended by a period of time equal
to
the duration of the Suspension Period.
(b) Piggyback
Registrations.
(i) The
Company shall notify the Stockholders in writing at least fifteen (15) days
prior to the filing of any registration statement under the Securities Act
for
purposes of a public offering of securities of the Company (including, without
limitation, registration statements relating to secondary offerings of
securities of the Company, but excluding Special Registration Statements) and
will afford each such Stockholder an opportunity to include in such registration
statement all or part of such Shares held by such Stockholder. Each
Stockholder desiring to include in any such registration statement all or any
part of the Shares held by it shall, within ten (10) days after the
above-described notice from the Company, so notify the Company in writing and
the Company shall include in such registration statement all or any part of
such
Shares such Stockholder requests to be registered to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement. If a Stockholder decides not to include all of its
Shares in any registration statement thereafter filed by the Company, such
Stockholder shall nevertheless continue to have the right to include any Shares
in any subsequent registration statement or registration statements as may
be
filed by the Company with respect to offerings of its securities, all upon
the
terms and conditions set forth herein.
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(ii) If
the
registration statement under which the Company gives notice under this Section
5.4(b) is for an underwritten offering, the Company shall so advise the
Stockholders. In such event, the right of any such Stockholder to be
included in a registration pursuant to this Section 5.4(b) shall be conditioned
upon such Stockholder’s participation in such underwriting and the inclusion of
such Stockholder’s Shares in the underwriting to the extent provided
herein. All Stockholders proposing to distribute their Shares through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Agreement, if
the underwriter determines in good faith that marketing factors require a
limitation of the number of shares to be underwritten, the number of shares
that
may be included in the underwriting shall be allocated, first, to the Company;
second, to any stockholder of the Company (other than the Stockholders and
Loeb)
that is entitled to piggyback registration rights pursuant to agreements in
effect on the date hereof, on a pro rata basis and third, to Loeb and
any Stockholders parri passu on a pro rata but only as to the
shares and the shares of Company Common Stock entitled to piggyback registration
rights under the Loeb Agreement. If any Stockholder disapproves of
the terms of any such underwriting, such Stockholder may elect to withdraw
therefrom by written notice to the Company and the underwriter, delivered at
least ten (10) business days prior to the effective date of the registration
statement.
(iii) The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 5.4 prior to the effectiveness of such registration
whether or not any Stockholder has elected to include securities in such
registration.”
5. Section
6.5(b) of the Agreement is hereby amended and restated in its entirety as
follows:
(b) “stock
issued or issuable pursuant to any rights or agreements, options, warrants
or
convertible securities outstanding as of the date of this Agreement; and stock
issued pursuant to any such rights or agreements after the date of this
Agreement; provided that the preemptive rights established by this
Section 6 applied with respect to the initial sale or grant by the Company
of
such rights or agreements, options, warrants or convertible
securities;”
6. Waiver
of Preemptive Rights. The Purchasers hold a majority of the
shares of Company Common Stock under the Agreement and have the right to waive
any provision under the Agreement. By executing this Amendment, such
Purchasers hereby waive the preemptive rights established under Section 6
of the Agreement as to the issuance of 3,750,000 shares of Company Common Stock
to Loeb Partners Corporation, including any notice provisions. This
waiver shall not apply to any other issuance of Equity Securities under the
Agreement other than the issuance of the Shares.
7. All
other provisions of the Agreement shall remain in full force and
effect.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to the
Stockholder Agreement on the date first written above.
By: /s/
Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: President
and Chief Financial Officer
Stockholders:
OHB
Technology AG
By: /s/
Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title: Chief
Executive Officer
By: /s/
Xxxxxxx
Xxxxx
Name: Xxxx.
Xxxxxxx Xxxxx
Title: Chief
Operating Officer
MT
Aerospace AG
By: /s/
Xxxx
Xxxxxxxxxx
Name: Xxxx
Xxxxxxxxxx
Title: Chief
Executive Officer
By: /s/
Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title: Chief
Operating Officer
3796187_2.DOC
