Amendment No. 1 to the Agreement and Plan of Merger and
Reorganization
SPACEDEV, INC.
XXXXXXX X. XXXXXXX
President
00000 Xxxxx Xxxxx Xxxxx, XX 00000
(000) 000-0000 Fax: (000) 000-0000
e-mail: Xxxxxxx.Xxxxxxx@XxxxxXxx.xxx
December 7, 2005
VIA E-MAIL
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Starsys Research Corporation
Attention: Xxxxx Xxxxxxxx, Chairman and Chief Executive Officer
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Amendment No. 1 to that certain Agreement and Plan of Merger and
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Reorganization
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Dear Xx. Xxxxxxxx:
Reference is made to that certain Agreement and Plan of Merger and
Reorganization made and entered into as of October 24, 2005 (the "MERGER
AGREEMENT"), by and among SpaceDev, Inc. ("SPACEDEV"), Monoceros Acquisition
Corp., Starsys Research Corporation ("STARSYS"), Xxxxx Xxxxxxxx, as a key
shareholder, and Xxxxx Xxxxxxxx, as shareholder agent.
By executing a copy of this Amendment No. 1 to the Merger Agreement (this
"AMENDMENT") below, the parties to the Merger Agreement hereby agree to the
following amendments to the Merger Agreement:
(a) Section 6.1(e) of the Merger Agreement is hereby amended by
replacing the amount "$0.77" therein with the amount "$1.00".
(b) Section 6.2(n) of the Merger Agreement is hereby amended by adding
the following proviso immediately prior to the period at the end thereof:
"; provided, however, that the Company shall not solicit a Standstill and
Lock-Up Agreement, and shall not be obligated to deliver to Parent a
Standstill and Lock-Up Agreement, from any such Shareholder or other Person
who is not a director or executive officer of the Company and who does not
own 5% of more of the outstanding shares of Company Common Stock, until
after the SEC has declared effective the Form S-4 under the Securities
Act".
(c) Section 7.5(b) of the Merger Agreement is hereby amended by
deleting in its entirety the following sentence therefrom: "The Key
Shareholders shall severally indemnify the Shareholder Agent and hold such
agent harmless against any loss, liability or expense incurred without bad
faith on the part of the Shareholder Agent and arising out of or in
connection with the acceptance or administration of the Shareholder Agent's
duties hereunder."
(d) A new Section 7.5(c) is hereby added to the Merger Agreement,
which shall read in its entirety as follows: " (c) The resignation, removal
and succession of the Shareholder Agent shall be governed by Section 4 of
the Escrow Agreement, and any successor shareholder agent under the Escrow
Agreement shall automatically, without any further act or notice, become
the successor Shareholder Agent for all purposes hereunder.".
(e) Section 10.1(d)(1) of the Merger Agreement is hereby amended by
replacing the words "December 31, 2005" therein with the words "January 31,
2006".
(f) Section 10.1(d)(3) of the Merger Agreement is hereby amended by
replacing the characters "; or" at the end thereof with the character ".".
(g) Section 10.1(d)(4) of the Merger Agreement is hereby deleted in
its entirety.
Except as expressly amended by this Amendment, the Merger Agreement shall
remain in full force and effect in accordance with the terms and conditions
thereof, and this Amendment shall be incorporated into, and become a part of,
the Merger Agreement.
This Amendment may be executed in one or more counterparts, each of which
shall be deemed to constitute an original but all of which together shall
constitute but one and the same instrument.
This Amendment shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Colorado applicable to contracts
negotiated, executed and to be performed entirely within the State of Colorado.
A facsimile, telecopy or other reproduction of this Amendment may be executed by
one or more parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto, all
parties hereto agree to execute an original of this Amendment as well as any
facsimile, telecopy or other reproduction hereof.
The undersigned hereby also agree that the November 2005 adjustment by
Starsys of the accounting treatment for certain equipment having a value of
$250,000 from capital equipment to equipment shall, for purposes of Section
2.6(e) of the Merger Agreement, be deemed to be a change in accounting methods
for Starsys
from those utilized as of the date of the Merger Agreement.
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PAGE
Please signify your agreement with the foregoing agreements by signing this
Amendment and returning one original to us by facsimile or electronic
transmission. If you have any questions, please call me. Thank you for your
prompt assistance with this matter.
Best regards,
SPACEDEV, INC.
MONOCEROS ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
AGREED AND ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN:
STARSYS RESEARCH CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Chief Executive Officer
XXXXX XXXXXXXX, as a key shareholder
XXXXX XXXXXXXX, as shareholder agent
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
