SPACEDEV, INC. STOCKHOLDER AGREEMENT
EXHIBIT
99.2
SPACEDEV,
INC.
This
Stockholder Agreement (the “Agreement”) is made as of September
19, 2007 by and among SpaceDev, Inc., a
Delaware corporation (the “Company”) and the stockholders listed on Exhibit A
hereto (referred to hereinafter as the “Stockholders” and each individually as a
“Stockholder”). Capitalized terms which are not otherwise defined
shall have the same meaning as in the Purchase Agreement (as defined
below).
Recitals
Whereas,
the Stockholders are purchasing shares of the Company’s Common Stock
(the “Shares”) pursuant to that certain Stock Purchase Agreement between the
Company and the Stockholders (the “Purchase Agreement”) of even date
herewith;
Whereas,
the obligations in the Purchase Agreement are conditioned upon the execution
and
delivery of this Agreement by the Company and the Stockholders; and
Whereas,
the parties desire to enter into this Agreement in order to grant board rights
to the Stockholders and restrict the transfer of the Shares, among other
covenants, as set forth below.
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:
Section 1. Definitions. As
used in this Agreement the following terms shall have the following respective
meanings:
1.1 “Affiliate”
means, an “affiliate,” as defined in Rule 405 of Regulation C of the Securities
Act, of the Stockholder.
1.2 “Change
of Control” means (1) any consolidation or merger
of the Company with or into any other corporation or other entity or person,
or
any other corporate reorganization, in which the stockholders of the Company
immediately prior to such consolidation, merger or reorganization, own less
than
fifty percent (50%) of the voting power of the surviving or successor entity
(or
in the event stock or ownership interests of an affiliated entity are issued
in
such transaction, less than fifty percent (50%) of the voting power of such
affiliated entity) immediately after such consolidation, merger or
reorganization; (2) any transaction or series of related transactions to which
the Company is a party in which in excess of fifty percent (50%) of the
Company’s outstanding voting power is transferred; provided that such
transactions shall not include any consolidation or merger effected exclusively
to change the domicile of the Company.
1.3 “Exchange
Act” shall means the Securities Exchange Act of 1934, as
amended.
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1.4 “Restricted
Territory” means the United States.
1.5 “Securities
Act” shall mean the Securities Act of 1933, as
amended.
1.6 “Special
Registration Statement” shall mean (i) a registration statement
relating to any employee benefit plan or (ii) with respect to any corporate
reorganization or transaction under Rule 145 of the Securities Act, including
any registration statements related to the issuance or resale of
securities.
Section 2. Election
Of Stockholder Nominee To Board Of Directors.
2.1 Nomination. At
the next meeting of the Company’s Board of Directors, the Company shall take all
steps as are necessary and appropriate and otherwise use its best efforts to
cause an individual designated by the Stockholders (such individual so initially
designated by the Stockholders, and each other individual from time to time
designated by Stockholders in the event any individual theretofore designated
is
unable or unwilling to serve as a member of the Board of Directors of the
Company, being hereinafter called the “Stockholder Nominee”) to be duly and
properly elected to a seat on the Board of Directors of the
Company. Thereafter, until the Termination Date (as defined below),
at each annual or special meeting of the stockholders of the Company, or in
connection with any written consent solicited from any or all of the
stockholders of the Company, at or with respect to which a vote is taken to
elect a director to fill the seat occupied by the Stockholder Nominee
theretofore serving as a member of the Board of Directors of the Company
(whether upon the expiration or such Stockholder Nominee’s then current term as
a member of the Board of Directors of the Company or otherwise), the Company
shall nominate the Stockholder Nominee for election to the Board of Directors
of
the Company. The Stockholders shall provide the Secretary of the
Company within 10 days after the Company notifies the Stockholders that the
Company is preparing its proxy statement with (i) the required background
information under Regulation 14A of the Exchange Act or the rules of any
security exchange that the Company common stock is then listed, and
(ii) such other information regarding such individual and their
affiliations and background as the Company may reasonably request.
2.2 Vacancies
and Insurance. Until the Termination Date, in the event that
the individual at any time serving on the Board of Directors of the Company
as
the Stockholder Nominee shall, for any reason, cease or be unable so to serve,
the Company shall take all steps as are necessary or appropriate to cause the
vacancy on the Board of Directors of the Company thereby created to be filled
promptly by the election to the Board of Directors of the Company of another
Stockholder Nominee. The Stockholder Nominee shall be entitled to
directors’ insurance at the Company’s cost and expense and indemnification
coverage by the Company on terms and conditions no less favorable than those
available to other members of the Board of Directors of the
Company.
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2.3 Stockholder
Nominee. The Stockholder Nominee shall be an individual that
shall have such business or technical experience, stature and character as
is
commensurate with service on the board of directors of a public company and
that
shall be reasonably acceptable to the Company, it being agreed that either
Xxxxx
X. Xxxxx or Xxxx X. Xxxxxxxxxx is an acceptable nominee. It is
understood by the Stockholders that any individual that would be required to
make disclosure under Item 401(f) of Regulation S-K in connection with the
Company’s proxy statement under Regulation 14A of the Exchange Act, shall not be
an acceptable nominee. Without limiting the foregoing, without the
prior written consent of the Company, Stockholder shall not designate any
individual as the Stockholder Nominee if such individual is then an officer,
director, employee, consultant or stockholder (then holding more than
1% percent of any company’s issued and outstanding capital stock or other
equity interests) of any business that is a competitor of the
Company.
2.4 Exclusion. The
Company reserves the right to exclude the Stockholder Nominee from any meeting
or portion thereof and from access to any material, if the Company believes
upon
advice of counsel that such exclusion is reasonably necessary to avoid the
Stockholder being deemed to hold “dominant minority” control of the total
outstanding voting securities of the Company under the U.S. Department of the
Treasury’s Regulations Pertaining to Mergers, Acquisitions, and Takeovers by
Foreign Persons (31 C.F.R. Sec. 800.204). Exclusion rights also apply
as necessary for the Company to remain in compliance with the Arms Export
Control Act, the Export Administration Act, and the International Economic
Emergency Powers Act, and regulations issued pursuant to these, including the
International Traffic in Arms Regulations (ITAR), 22 C.F.R. parts 120-130,
the
Export Administration Regulations (EAR), 15 C.F.R. parts 730-774 or any other
U.S. regulation or classified defense related issue, as well as any other
situation where the information may be adverse to the interest of the
Company.
Section 3. Covenants
of the Stockholders.
3.1 Standstill. Each
Stockholder agrees that, during the period commencing on the date hereof and
ending on the Termination Date, neither such Stockholder nor any of its
Affiliates will in any manner, directly or indirectly (i) purchase
additional shares of Common Stock of the Company or rights to purchase such
shares of Common Stock of the Company, (ii) effect, seek, offer or propose
to effect any acquisition of any securities or assets of the Company, any tender
or exchange offer, merger, business combination, recapitalization or other
extraordinary transaction involving the Company or any solicitation of proxies
or consents to vote any voting securities of the Company, (iii) form, join
or in any way participate in a “group” (as defined in the Exchange Act) with
respect to any voting securities of the Company, (iv) solicit or
participate in any solicitation of proxies relating to the election of directors
of the Company, (v) enter into any agreement with any other person with
respect to the foregoing, or assist any other person to do any of the foregoing
or (vi) nominate any person to the Board of Directors of the Company other
than
the Stockholder Nominee; provided that (A) Stockholder may
purchase additional Company securities in an amount sufficient to allow
Stockholder to continue to own up to 19% of the outstanding shares of Common
Stock of the Company; (B) Stockholder may exercise its rights in
Section 6; and (C) each Stockholder may sell their Shares in
connection with (1) the acquisition by any person or group (as defined in
the Exchange Act), other than by or on behalf of any Stockholder and their
Affiliates, of more than 50% of the outstanding voting securities of the Company
or (2) in a tender offer for the Company’s voting securities other than by
or on behalf of any of the Stockholders or their Affiliates (with securities
or
cash) which has not been approved by a majority of the Company’s Board of
Directors.
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3.2 Voting
of Shares. Each Stockholder may vote their shares in their
sole discretion; provided, however, that each Stockholder agrees that during
the
first two (2) years of this Agreement, with respect to the election of directors
of the Company, the Shares shall be present and voted “for” the nominees
recommended by the Company’s Board of Directors, provided the Company is in
compliance with the terms of Section 2 of this Agreement. Following
the two (2) year anniversary of this Agreement, each Stockholder agrees that
with respect to the election of directors of the Company, the Shares shall
be
present and voted “for” any nominees recommended by the Company’s Board of
Directors (i) if such nominee is currently a member of the Company’s Board of
Directors or (ii) if the recommendation of the Company’s Board of Directors for
such nominee includes the Stockholder Nominee, provided the Company is in
compliance with the terms of Section 2 of this Agreement. The
provisions of this Section 3.2 shall apply to both the casting of votes at
general meetings of stockholders and any execution of stockholder action by
written consent. Each Stockholder agrees, and shall cause its
Affiliates, to execute and deliver to the Secretary of the Company not later
than 20 days prior to the date of any general meeting of stockholders of the
Company, a proxy (in such form as provided by and on behalf of the Company’s
Board of Directors) representing all Shares beneficially owned by such
Stockholder and its Affiliates voted in accordance with this
Agreement.
3.3 Noncompetition.
(a) So
long
as each Stockholder continues to hold the Shares, such Stockholder shall not,
directly or indirectly through any subsidiary, partnership, joint venture or
agent, for its own account or as an owner, stockholder, operator, manager,
advisor or consultant of or to any person solicit the clients and customers,
or
potential clients and customers, of the Company in the Restricted Territory
for
similar products and services as offered by the Company.
(b) The
parties hereto recognize that the laws and public policies of various
jurisdictions may differ as to the validity and enforceability of covenants
similar to those set forth in this Section 3.3. It is the
intention of the parties hereto that the provisions of this Section 3.3 be
enforced to the fullest extent permissible under the laws and policies of each
jurisdiction in which enforcement may be sought, and that the unenforceability
of any provisions of this Section 3.3 shall not render unenforceable, or
impair, the remainder of the provisions of this
Section 3.3. Accordingly, if at the time of enforcement of any
provision of this Section 3.3 a court of competent jurisdiction holds that
the restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or geographic
area reasonable under such circumstances will be substituted for the stated
period, scope or geographical area and that such court shall be allowed to
revise the restrictions contained herein to cover the maximum period, scope
and
geographical area permitted by applicable law.
(c) Each
Stockholder acknowledges that (i) its obligations under this Section 3.3 are
reasonable in the context of the nature of the Company’s business and the access
each Stockholder will have to the Company and its confidential information
as a
result of this Agreement and the Purchase Agreement and the competitive injuries
likely to be sustained by the Company if Stockholder were to violate such
obligations and (ii) the covenants in this Section 3.3 are adequately supported
by consideration from the Company. Accordingly, each Stockholder
acknowledges and agrees that the remedy at law available to the Company for
breach of any of Stockholder’s obligations under this Section 3.3 would be
inadequate; therefore, in addition to any other rights or remedies that the
Company may have at law or in equity, temporary and permanent injunctive relief
may be granted in any proceeding which may be brought to enforce any provision
contained in this Section 3.3, without the necessity of proof of actual
damage.
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3.4 Confidentiality
of Records. Each Stockholder agrees, and
shall cause its Affiliates, to use the same degree of care as such Stockholder
uses to protect its own confidential information to keep confidential any
information furnished to it that the Company identifies as being confidential
or
proprietary (so long as such information is not in the public domain), except
that such Stockholder may disclose such proprietary or confidential information
(i) to any manager (in the event of a limited liability company),
subsidiary or parent of Stockholder for the purpose of evaluating its investment
in the Company as long as such manager, subsidiary or parent is advised of
the
confidentiality provisions of this Section 3.4; (ii) at such time as
it enters the public domain through no act of such Stockholder; (iii) that
is
communicated to it free of any obligation of confidentiality; or (iv) that
is
developed by such Stockholder or its Affiliates independently of and without
reference to any confidential information communicated by the Company as
definitively shown by the written records of the Stockholder or its
Affiliates.
3.5 Export
Control. Each Stockholder acknowledges it
is not incorporated or licensed to do business in the United States, and is
a
foreign person as defined in 22 C.F.R. Section 120.16. Stockholder
acknowledges and understands that: (a) the Company is subject to U.S. export
controls that may restrict Stockholder’s access to certain articles, technical
data, and /or services; and (b) an export license from the U.S.
government may be required prior to transfer to any Stockholder of controlled
articles, technical data, or services. Each Stockholder agrees to
comply with all U.S. export control laws and the Company’s export control
policies and practices, including exclusion from export-controlled Board of
Directors activities and communications. Each Stockholder agrees to
cooperate with the Company to obtain any necessary U.S. government
authorizations required to allow such Stockholder access to controlled articles,
technical data and/or services.
Section 4. Restrictions
on Transfer.
4.1 General. Each
Stockholder agrees not to make any disposition of all or any portion of the
Shares unless and until:
(a) 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
(b) (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.
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(c) Notwithstanding
the provisions of subsection (a) above, no such restriction shall apply to
a
transfer by a Stockholder that is (A) corporation transferring to any
affiliated entity, including, without limitation, any subsidiary or parent
corporation, or affiliated partnership or limited liability company, or
(B) a limited liability company transferring to Affiliates, its members or
former members in accordance with their interest in the limited liability
company; 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.
(d) 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 SHAREHOLDER
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.
(e) 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.
4.2 “Market
Stand-Off” Agreement.
(a) Each
Stockholder hereby agrees that it shall not sell, transfer, make any short
sale
of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, the Shares (or other
securities) of the Company held by such Stockholder for a period of one (1)
year
following the Closing Date.
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(b) Each
Stockholder hereby agrees that it shall not sell, transfer, make any short
sale
of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any Common Stock (or other
securities) of the Company held by such Stockholder (other than those included
in or acquired after the below registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities) of
the
Company not to exceed one hundred eighty (180) days following the effective
date
of a registration statement of the Company filed under the Securities Act (or
such longer period, not to exceed 18 days after expiration of the 180-day
period, as the Company or the underwriters shall request in order to facilitate
compliance with NASD Rule 2711); provided that all officers and
directors of the Company enter into similar agreements.
Section 5. Covenants
of the Company.
5.1 Indemnification.
(a) The Company
hereby agrees to hold harmless and indemnify the Stockholders, the Stockholders’
direct and indirect subsidiaries, affiliated entities and corporations, and
each
of their partners, officers, directors, employees, stockholders, agents, and
representatives (collectively, referred to as the “Stockholder
Indemnitees”) against any and all expenses (including attorneys’ fees),
damages, judgments, fines, amounts paid in settlements, or any other amounts
that a Stockholder Indemnitee incurs as a result of any claim or claims made
against it in connection with any threatened, pending or completed action,
suit,
arbitration, investigation or other proceeding arising out of, or relating
to,
the breach of the Company’s representations and warranties contained in the
Purchase Agreement.
(b) The
Company’s indemnity obligations set forth above are subject to the Stockholder
Indemnitees providing prompt written notice of a claim. The Company
shall control the defense of any such action and, at its discretion, may enter
into a stipulation of discontinuance or settlement thereof; provided that the
Company may not discontinue any action or settle any claim in a manner that
does
not unconditionally release the Stockholders without the Stockholders’ prior
written approval. The Stockholders shall, at the Company’s expense
and reasonable request, cooperate with the Company in any such defense and
shall
make available to the Company at the Company’s expense all those persons,
documents (excluding attorney/client or attorney work product materials)
reasonably required by the Company in the defense of any such
action. The Stockholders may, at their expense, assist in such
defense.
(c) The
Company’s aggregate cumulative liability under this Section shall be limited to
the amount received by the Company pursuant to the transactions contemplated
by
the Purchase Agreement.
(d) Each
Stockholder Indemnitee acknowledges that, from and after the Closing Date,
its
sole and exclusive remedy with respect to any and all claims and causes of
action relating to the Purchase Agreement and the transactions contemplated
thereby shall be pursuant to the indemnification provisions set forth in this
section, provided that nothing in this Agreement shall limit the Stockholder
Indemnitees’ right to recover against the Company with respect to any claim
arising from the Company’s fraudulent acts or bad faith.
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5.2 Observer
Rights. The
Company shall allow one representative designated by the Stockholders, who
shall
initially be either Xxxxx X. Xxxxx or Xxxx X. Xxxxxxxxxx, whomever is not
the Stockholder Nominee, to attend all meetings of the Company’s
Board of Directors in a nonvoting capacity, and in connection therewith, the
Company shall give such representative copies of all notices, minutes, consents
and other materials, financial or otherwise, which the Company provides to
its
Board of Directors; provided, however, that the Company reserves the right
to
exclude such representative from access to any material or meeting or portion
thereof (1) if the Company believes upon advice of counsel that such exclusion
is reasonably necessary to preserve the attorney-client privilege, to protect
highly confidential proprietary information or for other similar reasons or
(2)
as provided in Section 2.4.
5.3 Rule
144 Reporting. With a view to making
available to the Stockholders the benefits of certain rules and regulations
of
the SEC which may permit the sale of the Shares to the public without
registration, the Company agrees to use its best efforts to:
(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, at all times after the effective date of the first registration
filed by the Company for an offering of its securities to the general public;
and
(b) File
with
the SEC, in a timely manner, all reports and other documents required of the
Company under the Exchange Act.
5.4 Registration
Rights.
(a) Demand
Registration.
(i) If
the
Company shall receive a written request from the Stockholders of a majority
of
the Shares (the “Initiating Holders”) that the Company
file a registration statement under the Securities Act covering the registration
of all of the 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 the
Shares.
(ii) The
Company shall not be required to effect a registration pursuant to this
Section 5.4:
(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, 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, 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 Stockholders of the Company’s intention to file
a registration statement a public offering within ninety
(90) days;
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(E) if
the
Company shall furnish to the Stockholders requesting a registration statement
pursuant to this Section 5.4, 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
(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 Stockholders continue
to beneficially own 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, 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 (and any
extension of the Suspension Period pursuant to the following
sentence).
(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) who
currently has piggyback registration rights on a pro rata basis and
third, to any Stockholders on a pro rata basis based on the total
number of Shares held by such other Stockholders. 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.
5.5 Use
of Proceeds. The Company shall use the net
proceeds from the sale of the Shares for general work capital.
5.6 Integration. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the
Securities Act) that would be integrated with the offer or sale of the Shares
in
a manner that would require the registration under the Securities Act of the
sale of the Shares to the Stockholders.
Section 6. Preemptive
Rights
6.1 Subsequent
Offerings. Subject to applicable securities laws and
existing preemptive rights, if the Board of Directors of the Company determines
that an increase in the Stockholders’ ownership percentage will not create an
undue influence on the Company each Stockholder shall have the right to purchase
its pro rata share of all Equity Securities, as defined below, that the
Company may, from time to time, propose to sell and issue after the date of
this
Agreement up to twenty-five percent (25%) (including the Shares) of the
Company’s issued and outstanding Company Common Stock following the sale of the
Equity Securities, other than the Equity Securities excluded by Section 6.5
hereof. Each Stockholder’s pro rata share is equal to the
ratio of (a) the number of shares of the Company’s Common Stock of which such
Stockholder is deemed to be a holder immediately prior to the issuance of such
Equity Securities to (b) the total number of shares of the Company’s outstanding
Common Stock held by the Stockholders. The term “Equity
Securities” shall mean (i) any Common Stock, Preferred Stock or
other security of the Company, (ii) any security convertible into or exercisable
or exchangeable for, with or without consideration, any Common Stock, Preferred
Stock or other security (including any option to purchase such a convertible
security), (iii) any security carrying any warrant or right to subscribe to
or
purchase any Common Stock, Preferred Stock or other security or (iv) any such
warrant or right.
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6.2 Exercise
of Rights. If the Company proposes to issue any Equity
Securities, it shall give each Stockholder written notice of its intention,
describing the Equity Securities, the price and the terms and conditions upon
which the Company proposes to issue the same. Each Stockholder shall
have ten (10) days from the giving of such notice to agree to purchase such
Stockholder’s pro rata share of the Equity Securities for the price and
upon the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of Equity Securities to be
purchased. Notwithstanding the foregoing, the Company shall not be
required to offer or sell such Equity Securities to any Stockholder who would
cause the Company to be in violation of applicable federal securities laws
by
virtue of such offer or sale.
6.3 Issuance
of Equity Securities to Other Persons. If the Stockholders
fail to exercise in full the preemptive rights set forth in this Section 6,
the
Company shall have one hundred eighty (180) days following the notice provided
pursuant to Section 6.2 to sell the Equity Securities in respect of which the
Stockholders’ rights were not exercised, at a price and upon general terms and
conditions not more favorable to the purchasers thereof than specified in the
Company’s notice to the Stockholders pursuant to Section 6.2
hereof. If the Company has not sold such Equity Securities within
ninety (90) days of the notice provided pursuant to Section 6.2, the Company
shall not thereafter issue or sell any Equity Securities, without first offering
such securities to the Stockholders in the manner provided above.
6.4 Termination
and Waiver of Preemptive Rights. The preemptive rights
established by this Section 4 shall terminate three years from the date
hereof. The preemptive rights established by this Section 6 may be
amended, or any provision waived, either prospectively or retrospectively,
with
the written consent of Stockholders holding not less than a majority of the
Shares, or as permitted by Section 7.5.
6.5 Excluded
Securities. The preemptive rights established by this
Section 6 shall have no application to the issuance of any of the following
Equity Securities:
(a) Shares
of
Common Stock and/or options, warrants or other Common Stock purchase rights
and
the Common Stock issued pursuant to such options, warrants or other rights
issued or issuable after the date hereof to employees, officers or directors
of,
or consultants or advisors to, the Company or any of its subsidiaries pursuant
to stock purchase or stock option plans or other arrangements that are approved
by the Board of Directors;
11
(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 granted after the date of
this
Agreement;
(c) any
Equity Securities issued for consideration other than cash pursuant to a merger,
consolidation, acquisition, strategic alliance or similar business combination
approved by the Board of Directors;
(d) any
Equity Securities issued pursuant to any equipment loan or commercial credit
or
leasing arrangement, real property leasing arrangement, or debt financing from
a
bank or similar financial or lending institution approved by the Board of
Directors;
(e) shares
of
Common Stock issued in connection with any stock split, stock dividend,
reclassification or similar non-economic event by the Company; and
(f) shares
of
Common Stock issued upon conversion of shares of the Company’s Preferred
Stock.
Section 7. Miscellaneous
7.1 Termination
of this Agreement. This Agreement shall continue in full
force and effect from the date hereof through the earliest of the following
dates (collectively, the “Termination Date”), on which date it shall terminate
in its entirety:
(a) upon
a
Change of Control;
(b) the
ten
(10) year anniversary of the date of this Agreement;
(c) the
date
as of which the parties hereto terminate this Agreement by written consent
of
the Company and the Stockholders holding a majority of the Shares;
(d) if
the
Stockholders no longer beneficially own an aggregate of at least 4.99% of the
Company’s issued and outstanding Common Stock; or
(e) the
date
on which the Stockholders sell all of the Shares pursuant to either (i) Rule
144
under the Securities Act or (ii) an effective registration statement under
the
Securities Act.
7.2 Severability. It
is the desire and intent of the parties that the provisions of this Agreement
be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall
be
ineffective, without invalidating the remaining provisions of this Agreement
or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or enforceable in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other
jurisdiction.
12
7.3 Governing
Law; Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Colorado
as
applied to contracts entered into and performed entirely in Colorado by Colorado
residents without regard to conflicts of law principles, except for matters of
corporate law, which shall be governed by the laws of the State of
Delaware.
7.4 Assignments;
Successors and Assigns. Except in connection with any
transfer of Shares in accordance with this Agreement, the rights of each party
under this Agreement may not be assigned. This Agreement shall bind
and inure to the benefit of the parties and their respective successors,
permitted assigns, legal representatives and heirs.
7.5 Amendments;
Waivers. Except as otherwise provided herein, neither this
Agreement nor any provision hereof may be changed, waived, discharged,
terminated, modified or amended except upon the written consent of the Company
and the Stockholders holding a majority of the Shares.
7.6 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:30 p.m. (New York City time) on a business
day, (ii) the business day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in the Purchase Agreement later than 5:30 p.m. (New York City time)
on
any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the business day following the date of mailing, if sent by nationally
recognized overnight courier service, (iv) upon five days after mailing if
sent by certified or registered mail or (v) actual receipt by the party to
whom such notice is required to be given if delivered by hand. The
address for such notices and communications shall be as follows:
(i) if
to the
Company, to:
SpaceDev,
Inc.
00000
Xxxxx Xxxxx
Xxxxx,
Xxxxxxxxxx
Attention: Xxxxxxx
X. Xxxxxxx
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
13
With
a
copy to:
Holland
& Xxxx LLP
000
Xxxxxxxxxxx Xxxxxx
Xxxxx
0000
Xxxxxx,
Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xxxxxx
(ii) if
to the
Stockholders, at the addresses set forth on the Schedule of Stockholders, or
at
such other addresses as may have been furnished to the Company in writing with
a
copy to:
Xxxxxxxxxx
& Xxxxx LLP
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxxxxx
X. San Xxxxxx
7.7 Headings. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed to be a part of this
Agreement.
7.8 Nouns
and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and vice
versa.
7.9 Entire
Agreement. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
7.10 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW
14
IN
WITNESS WHEREOF, the parties hereto have executed this Stockholder Agreement
on
the date first written above.
SpaceDev,
Inc.
/s/
Xxxx X.
Xxxxxxxxx
By: Xxxx
X. Xxxxxxxxx
Chief
Executive 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/
Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Title: Chief
Operating Officer
15
EXHIBIT
A
Schedule
of Stockholders
|
Stockholders
|
Shares
|
|
OHB
Technology XX
Xxxx-Xxxxxxxxx-Xxxxx
Xxx. 0
X-00000
Xxxxxx/Xxxxxxx
Telephone:
+49 (0) 421.2020-8
Facsimile:
+49 (0) 421.2020-613
Attention: Xxxxx
X. Xxxxx
|
1,773,892
|
|
MT
Aerospace XX
Xxxxx-Xxxxx-XxxxxX
Xxx. 0
00000
Xxxxxxxx/Xxxxxxx
Telephone:
+49 (0) 821.505-1030
Facsimile:
+49 (0) 821.505-1903
Attention: Xxxx
X. Xxxxxxxxxx
|
5,321,674
|
|
TOTAL
|
7,095,566
|
3743616_9.DOC
