VOTING AGREEMENT
Exhibit 2.3
7
This
VOTING AGREEMENT (this “Agreement”), is made and
entered into as of October 14, 2008, by and between Sierra Nevada Corporation, a
Nevada corporation (“Buyer”), and the undersigned
securityholder (“Stockholder”) of SpaceDev,
Inc., a Delaware corporation (the “Company”).
RECITALS
A.
Concurrently with or shortly following
the execution of this Agreement, Buyer, SDV Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Buyer (“Merger Sub”), and the Company
are entering into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant
to which Merger Sub will be merged with and into the Company (the “Merger”). Capitalized terms
used but not defined herein shall have the meanings given to them in the Merger
Agreement.
B.
As of the date hereof,
Stockholder is the direct, indirect and/or beneficial owner of certain shares of
Company capital stock as is indicated on the signature pages to this
Agreement.
C.
As a material
inducement to enter into the Merger Agreement, Buyer desires Stockholder to
agree, and Stockholder is willing to agree, to vote the Shares (as defined in
Section 1.1
below), and such other shares of capital stock of the Company over which
Stockholder has voting power, so as to facilitate consummation of the
Merger.
In consideration of the foregoing and the representations, warranties, covenants
and agreements set forth in this Agreement, the parties agree as
follows:
1. Voting of
Shares.
1.1 Shares. The term
“Shares” shall mean all
issued and outstanding shares of Company Common Stock and Preferred Stock owned
of record and beneficially owned (as defined in Rule 13d-3 under the
Exchange Act of 1934, as amended ( “Rule 13d-3”)) by
Stockholder or over which Stockholder exercises sole voting power, in each case,
as of the date of this Agreement. Stockholder agrees that any shares of capital
stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership of after the date of this
Agreement and prior to the termination of this Agreement pursuant to Section 5 below shall
be subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares as of the date hereof.
1.2 Agreement to Vote
Shares. Stockholder hereby covenants and agrees that during the period
commencing on the date hereof and continuing until this Agreement terminates
pursuant to Section 5
hereof, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the stockholders of the Company, however
called, and in any action by written consent of the stockholders of the Company,
Stockholder shall appear at the meeting or otherwise cause any and all Shares to
be counted as present thereat for purposes of establishing a quorum and vote (or
cause to be voted) any and all Shares: (i) in favor of the approval of the
Merger and adoption of the Merger Agreement; (ii) against any Acquisition
Proposal or Superior Proposal; and (iii) against any proposal or
transaction which could prevent or delay the consummation of the Merger or the
Merger Agreement. Stockholder further agrees not to enter into any agreement or
understanding with any person or entity the effect of which would be
inconsistent with or violative of any provision contained in this Section 1.2.
Notwithstanding anything to the contrary contained herein, nothing in this
Agreement shall be construed to limit or restrict Stockholder from acting in
Stockholder’s capacity as a director or officer of the Company or voting in
Stockholder’s sole discretion on any matter other than those matters referred to
in the first sentence of this Section 1.2.
1.3 Irrevocable Proxy.
Concurrently with the execution of this Agreement, Stockholder agrees to deliver
to Buyer a proxy in the form attached hereto as Exhibit A (the
“Proxy”), which shall
be irrevocable, with respect to the Shares, subject to the other terms of this
Agreement.
1.4 Adjustments Upon Changes in
Capitalization. In the event of any change in the number of issued and
outstanding shares of Company Common Stock by reason of any stock split, reverse
split, stock dividend (including any dividend or distribution of securities
convertible into Company Common Stock), combination, reorganization,
recapitalization or other like change, conversion or exchange of shares, or any
other change in the corporate or capital structure of the Company, the term
“Shares” shall be
deemed to refer to and include the Shares as well as all such stock dividends
and distributions and any shares into which or for which any or all of the
Shares may be changed or exchanged.
2. Transfer and Other
Restrictions. Stockholder represents, covenants and agrees that, except
for the proxy granted in Section 1.3
hereof and as contemplated by this Agreement: (i) Stockholder shall not,
directly or indirectly, during the period commencing on the date hereof and
continuing until this Agreement terminates pursuant to Section 5
hereof, offer for sale or agree to sell, transfer, tender, assign, pledge,
hypothecate or otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to, or consent to, the offer for sale,
sale, transfer, tender, pledge, hypothecation, encumbrance, assignment or other
disposition of, or create any Encumbrance of any nature whatsoever with respect
to, any or all of the Shares or any interest therein; (ii) Stockholder
shall not grant any proxy or power of attorney, or deposit any Shares into a
voting trust or enter into a voting agreement or other arrangement, with respect
to the voting of Shares (each a “Voting Proxy”) except as
provided by this Agreement; and (iii) Stockholder has not granted, entered
into or otherwise created any Voting Proxy which is currently (or which will
hereafter become) effective, and if any Voting Proxy has been created, such
Voting Proxy is hereby revoked. Notwithstanding the foregoing, Stockholder may
sell, transfer, tender, assign, pledge, hypothecate or otherwise
dispose of any Shares (A) in open market resale transactions (e.g. in a
transaction in which there have been no discussions, agreements or
understandings between the seller and the buyer or their respective agents or
representatives and in connection with which no solicitation of buyers or offers
to buy has occurred) with respect to resales of any shares of Company Common
Stock, (B) to any affiliate of Stockholder, and (C) as a bona fide gift or
gifts, provided that it shall be a condition to the transfers identified in
clauses (B) and (C) that each transferee or donee thereof executes and delivers
to Buyer (1) an agreement with Buyer in the form of this Agreement and
(2) an irrevocable proxy in the form attached hereto as Exhibit A, in
each case with respect to any and all Shares so transferred, and (C) to the
Company.
3. Representations and
Warranties of Stockholder. Stockholder represents and warrants to Buyer
that:
3.1 Authority; Validity.
Stockholder has all requisite capacity, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Stockholder and the consummation by
Stockholder of the transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Stockholder. This Agreement
has been duly executed and delivered by Stockholder. If this Agreement is being
executed in a representative or fiduciary capacity with respect to Stockholder,
the person signing this Agreement has full power and authority to enter into and
perform this Agreement.
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3.2 Non-Contravention.
The execution, delivery and performance of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, contravene, conflict with, or result in any
violation of, breach of or default by (with or without notice or lapse of time,
or both) Stockholder under, or give rise to a right of termination, cancellation
or acceleration of any obligation under, or result in the creation of any
Encumbrance upon any of the properties or assets of Stockholder under, any
provision of (i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Stockholder or (ii) any judgment, order, decree,
statute, law, ordinance, injunction, rule or regulation applicable to
Stockholder or any of Stockholder’s properties or assets, other than any such
conflicts, violations, defaults, rights, or Encumbrances that, individually or
in the aggregate, would not impair the ability of Stockholder to perform
Stockholder’s obligations hereunder or prevent, limit or restrict in any respect
the consummation of any of the transactions contemplated hereby. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which Stockholder is settlor or trustee or any other person or entity,
including any Governmental Entity, whose consent, approval, order or
authorization is required by or with respect to Stockholder for the execution,
delivery and performance of this Agreement by Stockholder or the consummation by
Stockholder of the transactions contemplated hereby.
3.3 Litigation. There is
no action pending, or to the knowledge of Stockholder, threatened with respect
to his ownership of the Shares, nor is there any judgment, decree, injunction or
order of any applicable Governmental Entity or arbitrator outstanding which
would prevent the carrying out by Stockholder of his obligations under this
Agreement or any of the transactions contemplated hereby, declare unlawful the
transactions contemplated hereby or cause such transactions to be
rescinded.
3.4 Title. Stockholder is
the beneficial owner (as defined in Rule 13d-3) of the Shares of indicated
on the signature pages hereto, which, on and as of the date hereof, are free and
clear of any Encumbrances that, individually or in the aggregate, would impair
the ability of Stockholder to perform Stockholder’s obligations hereunder or
prevent, limit or restrict in any respect the consummation of any of the
transactions contemplated hereby. The number of Shares set forth on the
signature pages hereto are the only Shares owned of record or beneficially owned
(as defined in Rule 13d-3, but excluding Shares held of record by
affiliated entities that are publicly reported as a consolidated group where
each such affiliated holder is concurrently entering into a counterpart version
of this Agreement) by Stockholder or over which Stockholder exercises sole
voting power and, except as set forth on such signature pages, Stockholder holds
no options or warrants to purchase or rights to subscribe for or otherwise
acquire any securities of the Company and has no other interest in or voting
rights with respect to any securities of the Company.
3.5 Power. Stockholder
has sole voting power and sole power to issue instructions with respect to the
matters set forth in Section 1 and
Section 2
hereof and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares, with no limitations,
qualifications or restrictions on such rights.
4. Representations and
Warranties of Buyer. Buyer represents and warrants to Stockholder
that:
4.1 Authority; Validity.
Buyer has all requisite capacity, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Buyer and the consummation by Buyer of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer. If this Agreement is being executed in a representative or
fiduciary capacity with respect to Buyer, the person signing this Agreement has
full power and authority to enter into and perform this Agreement.
4.2
Non-Contravention.
The execution, delivery and performance of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, (a) require Buyer to obtain the consent or
approval or, or make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign, (b) require the consent or approval
of any other person pursuant to any agreement, obligation or instrument binding
on Buyer or its properties and assets, (c) conflict with or violate any
organizational document or law, rule regulation, order, judgment or decree
applicable to Buyer or pursuant to which any of its or its subsidiaries’
respective assets are bound or (d) violate any other material agreement to
which Buyer or any of its subsidiaries is a party.
3
5. Effectiveness; Termination;
No Survival. This Agreement shall become effective upon its execution by
Stockholder and Buyer or upon the execution of the Merger Agreement by all
parties thereto, whichever is later. This Agreement may be terminated at any
time by mutual written consent of Stockholder and Buyer. This Agreement, and the
obligations of Stockholder hereunder, including, without limitation,
Stockholder’s obligations under Section 1 and
Section 2
above, shall terminate, without any action by the parties hereto, upon the
earlier to occur of the following: (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the Merger
Agreement; (ii) such date and time as the Merger Agreement shall have been
validly terminated pursuant to Article VIII
thereof, and (iii) January 31, 2009.
6. Further Assurances.
Subject to the terms of this Agreement, from time to time, Stockholder shall
execute and deliver such additional documents and use commercially reasonable
efforts to take, or cause to be taken, all such further actions, and to do or
cause to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement.
7. Miscellaneous.
7.1 Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
7.2 Binding Effect and
Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or obligations
of the parties hereto may be assigned by either of the parties without the prior
written consent of the other; provided that the consent of
Stockholder shall not be required for an assignment by Buyer of any or all of
its rights (but not obligations) hereunder to any one or more of its lenders and
provided, further, that
assignments of this Agreement in accordance with Section 2 above shall
not require Buyer’s consent. Any purported assignment in violation of this Section 7.2
shall be void.
7.3 Amendments and
Modification. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
7.4 Specific Performance;
Injunctive Relief; Attorneys Fees. The parties hereto acknowledge that
Buyer will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Stockholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
that may be available to Buyer upon any such violation, Buyer shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Buyer at law or in equity
and Stockholder hereby irrevocably and unconditionally waives any objection to
Buyer seeking so to enforce such covenants and agreements by specific
performance, injunctive relief and other means. If any action, suit or other
proceeding (whether at law, in equity or otherwise) is instituted concerning or
arising out of this Agreement or any transaction contemplated hereunder, the
prevailing party shall recover, in addition to any other remedy granted to such
party therein, all such party’s costs and attorneys fees incurred in connection
with the prosecution or defense of such action, suit or other
proceeding.
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7.5 Notices. All notices
and other communications hereunder shall be in writing and shall be deemed given
upon delivery either personally or by commercial delivery service, or sent via
facsimile (receipt confirmed) to the parties at the addresses or facsimile
numbers set forth on the signature page hereof (or at such other address or
facsimile numbers for a party as shall be specified by like
notice).
7.6 Governing Law; Submission to
Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
The parties hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the United States of America located in
the State of Delaware (or, if such courts lack jurisdiction, the appropriate
Delaware state courts) for any actions, suits or proceedings arising out of or
relating to this Agreement (and the parties agree not to commence any action,
suit or proceeding relating thereto except in such courts), and further agree
that service of any process, summons, notice or document by U.S. certified mail
shall be effective service of process for any action, suit or proceeding brought
against the parties in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement in the courts of the United States
of America located in the State of Delaware (or, if such courts lack
jurisdiction, the appropriate Delaware state courts) and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
7.7
Entire
Agreement. The Merger Agreement, this Agreement and the Proxy granted
hereunder constitute and contain the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersede any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter
hereof.
7.8 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.9 Captions. The
captions to sections of this Agreement have been inserted only for
identification and reference purposes and shall not be used to construe or
interpret this Agreement.
7.10 Stockholder Capacity.
Notwithstanding anything herein to the contrary, Stockholder makes no agreement
or understanding herein in his capacity as a director or officer of the Company
or any subsidiary of the Company, and the agreements set forth herein shall in
no way restrict Stockholder in the exercise of his fiduciary duties as a
director or officer of the Company or any subsidiary of the Company or limit or
affect any actions taken by Stockholder solely in his capacity as an officer or
director of the Company or any subsidiary of the Company. Stockholder has
executed this Agreement solely in his capacity as the record and/or beneficial
holder of Shares.
7.11 No Ownership
Interest. Nothing contained in this Agreement shall be deemed to vest in
Buyer or Merger Sub any direct or indirect ownership or incidence of ownership
of or with respect to the Shares. All rights, ownership and economic benefits of
and relating to such Shares shall remain vested in and belong to Stockholder or
his affiliates, and Buyer and Merger Sub shall have no authority to direct
Stockholder in the voting or disposition of any Shares, except as otherwise
provided herein.
[Signature
Pages Follow]
5
IN
WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be
executed as of the date first above written.
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SIERRA
NEVADA CORPORATION
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STOCKHOLDER
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(Print
or Type Name of Stockholder)
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(if
applicable)
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Address:
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Address:
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000
Xxxxxxx Xxxxxx
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Xxxxxx,
XX 00000
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Attn: Staff
Counsel
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Fax: (000)
000-0000
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Fax: |
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Outstanding
Shares of Company Common Stock Beneficially Owned by
Stockholder:
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Outstanding
Shares of Company Preferred Stock Beneficially Owned by
Stockholder:
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Options,
Warrants or Rights to purchase Company Common Stock Beneficially Owned by
Stockholder:
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EXHIBIT
A
IRREVOCABLE
PROXY
The
undersigned stockholder (“Stockholder”) of SpaceDev,
Inc., a Delaware corporation (the “Company”), hereby irrevocably
appoints and constitutes the members of the Board of Directors of Sierra Nevada
Corporation, a Nevada corporation (“Buyer”), and each such Board
member (collectively, the “Proxyholders”), the agents,
attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned’s rights
with respect to all shares of capital stock of the Company now or hereafter
owned of record or beneficially by the undersigned (the “Shares”), including, without
limitation, those listed on the signature page of that certain Voting Agreement
of even date herewith between Buyer and Stockholder (the “Voting Agreement”), and any
and all other shares or securities issued or issuable in respect thereof on or
after the date hereof and prior to the date this proxy terminates, to vote the
Shares as follows: the Proxyholders named above are empowered at any time prior
to termination of this proxy to exercise all voting and other rights (including,
without limitation, the power to execute and deliver written consents with
respect to the Shares) of the undersigned at every annual, special or adjourned
meeting of the Company’s stockholders, and in every written consent in lieu of
any such meeting, or otherwise, (i) in favor of the approval of the merger
of SDV Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Buyer (“Merger
Sub”), with and into the Company pursuant to that certain Agreement and
Plan of Merger by and among Buyer, Merger Sub and the Company (the “Merger Agreement”), and in
favor of adoption of the Merger Agreement; (ii) against any Acquisition Proposal
or Superior Proposal (each as defined in the Merger Agreement); and
(iii) against any proposal or transaction which could prevent or delay the
consummation of the Merger or the Merger Agreement.
The
Proxyholders may not exercise this proxy on any other matter. Stockholder may
vote the Shares on all matters other than those set forth in the immediately
preceding paragraph. The proxy granted by Stockholder to the Proxyholders hereby
is granted as of the date of this Irrevocable Proxy in order to secure the
obligations of Stockholder set forth in Section 1.2 of
the Voting Agreement, and is irrevocable in accordance with subdivision
(e) of Section 212 of the Delaware General Corporation
Law.
This
proxy will terminate upon the termination of the Voting Agreement in accordance
with its terms. Upon the execution hereof, all prior proxies given by the
undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Stockholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
stockholders of the Company.
This
proxy is irrevocable and shall survive the insolvency, incapacity, death,
liquidation or dissolution of the undersigned.
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Dated: October
14, 2008
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(Print
or Type Name of Stockholder)
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Signature
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Title
(if applicable)
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7
