AGREEMENT AND PLAN OF MERGER

EXHIBIT 10.1
 

AGREEMENT
          AND PLAN OF MERGER

This
          AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of August 20,
          2007, is
          entered into between SpaceDev, Inc., a public company incorporated in the
          State
          of Colorado ("SPDV" or the "Company"), and SpaceDev, Inc., a Delaware
          corporation and a wholly owned subsidiary of the Company ("SpaceDev,
          Inc.").

RECITALS

WHEREAS,
          the Company is a corporation duly organized, validly existing and in good
          standing under the laws of the State of Colorado, and on the date of this
          Agreement has authority to issue one hundred million (100,000,000) shares
          of
          common stock, par value $0.0001 per share (the "SPDV common stock"), and
          ten
          million (10,000,000) shares of preferred stock, par value $0.001 per share
          (the
          "SPDV preferred stock"), of which 30,249,519 shares of SPDV common stock
          are
          issued and outstanding and 252,199.8147 shares of SPDV preferred stock
          (248,460
          shares of SPDV Series C Convertible Redeemable Preferred Stock (“SPDV Series C
          preferred stock”) and 3,739.8147 shares of SPDV Series D-1 Amortizing
          Convertible Perpetual Preferred Stock (“SPDV Series D-1 preferred stock”)) are
          issued and outstanding;

WHEREAS,
          SpaceDev, Inc. is a corporation duly organized, validly existing and in
          good
          standing under the laws of the State of Delaware, and on the date of this
          Agreement has authority to issue one hundred million (100,000,000) shares
          of
          common stock, par value $0.0001 per share (the "SpaceDev, Inc. common stock"),
          and ten million (10,000,000) shares of preferred stock, par value $0.001
          per
          share (the "SpaceDev, Inc. preferred stock"), of which 100 shares of SpaceDev,
          Inc. common stock are issued and outstanding;

WHEREAS,
          the respective Boards of Directors of the Company and SpaceDev, Inc. and
          the
          stockholder of SpaceDev, Inc. have determined that, for purposes of effecting
          the reincorporation of the Company in the State of Delaware, it is advisable,
          to
          the advantage of and in the best interests of SpaceDev, Inc. and its stockholder
          and the Company and its shareholders that the Company merge with and into
          SpaceDev, Inc. upon the terms and subject to the conditions herein provided
          (the
          "Reincorporation Merger");

WHEREAS,
          the parties intend, by executing this Agreement, to adopt a plan of
          reorganization within the meaning of Section 368 of the Internal Revenue
          Code of
          1986, as amended (the "Code"), and to cause the Reincorporation Merger
          to
          qualify as a reorganization under the provisions of Section 368 of the
          Code;
          and

WHEREAS,
          the respective Boards of Directors of the Company and SpaceDev, Inc. and
          the
          stockholder of SpaceDev, Inc. have unanimously adopted and approved this
          Agreement, and the Board of Directors of the Company has directed that
          this
          Agreement be submitted for approval by vote of the holders (the "Shareholders")
          of shares of SPDV common stock and SPDV preferred stock.

NOW,
          THEREFORE, in consideration of the premises and of the agreements of the
          parties
          hereto contained herein, the parties hereto agree as follows:

ARTICLE
          I

THE
          REINCORPORATION MERGER; EFFECTIVE TIME

1.1.
          The
          Reincorporation Merger.    Upon the terms and subject to the
          conditions set forth in this Agreement, at the Effective Time (as defined
          below), the Company shall be merged with and into SpaceDev, Inc. whereupon
          the
          separate existence of the Company shall cease. SpaceDev, Inc. shall be
          the
          surviving corporation (sometimes hereinafter referred to as the "Surviving
          Corporation") in the Reincorporation Merger and shall continue to be governed
          by
          the laws of the State of Delaware. The Surviving Corporation shall continue
          to
          operate the business of the Company under the name, "SpaceDev, Inc." The
          Reincorporation Merger shall have the effects specified in the General
          Corporation Law of the State of Delaware, as amended (the "DGCL") and in
          the
          Colorado Business Corporation Act, as amended (the "CBCA"), and the Surviving
          Corporation shall succeed, without other transfer, to all of the assets
          and
          property (whether real, personal or mixed), rights, privileges, franchises,
          immunities and powers of the Company, and shall assume and be subject to
          all of
          the duties, liabilities, obligations and restrictions of every kind and
          description of the Company, including, without limitation, all employee
          benefit
          plans and arrangements, stock options plans, stock purchase plans, and
          all
          indebtedness, of the Company.


            
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1.2.
          Effective Time.    Provided that the condition set forth in
          Section 5.1 has been fulfilled or waived in accordance with this Agreement
          and
          that this Agreement has not been terminated or abandoned pursuant to Section
          6.1, on the date of the closing of the Reincorporation Merger, the Company
          and
          SpaceDev, Inc. shall cause Articles of Merger to be executed and filed
          with the
          Secretary of State of Colorado (the "Colorado Articles of Merger") and
          a
          Certificate of Merger to be executed and filed with the Secretary of State
          of
          Delaware (the "Delaware Certificate of Merger"). The Reincorporation Merger
          shall become effective immediately upon the filing of the Delaware Certificate
          of Merger or upon such other date and time as may be specified in the Colorado
          Articles of Merger and the Delaware Certificate of Merger (the "Effective
          Time").

ARTICLE
          II

CHARTER
          AND BYLAWS OF THE SURVIVING CORPORATION

2.1.
          The
          Certificate of Incorporation.    The certificate of
          incorporation of SpaceDev, Inc. in effect at the Effective Time shall be
          the
          certificate of incorporation of the Surviving Corporation, until amended
          in
          accordance with the provisions provided therein or applicable
          law.

2.2.
          The
          Bylaws.    The bylaws of SpaceDev, Inc. in effect at the
          Effective Time shall be the bylaws of the Surviving Corporation, until
          amended
          in accordance with the provisions provided therein or applicable
          law.

ARTICLE
          III

OFFICERS
          AND DIRECTORS OF THE SURVIVING CORPORATION

3.1.
          Officers.    The officers of the Company at the Effective
          Time shall, from and after the Effective Time, be the officers of the Surviving
          Corporation, until their successors have been duly elected or appointed
          or until
          their earlier death, resignation or removal.

3.2.
          Directors.    The directors and the members of the various
          committees of the board of directors of the Company at the Effective Time
          shall,
          from and after the Effective Time, be the directors and members of such
          committees of the Surviving Corporation, until their successors have been
          duly
          elected or appointed or until their earlier death, resignation or
          removal.

ARTICLE
          IV

EFFECT
          OF MERGER ON CAPITAL STOCK

4.1.
          Effect of Merger on Capital Stock.    At the Effective Time,
          as a result of the Reincorporation Merger and without any action on the
          part of
          the Company, SpaceDev, Inc. or the Shareholders:


          
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(a)
          Each
          share of SPDV common stock (other than shares ("Dissenting Shares") that
          are
          owned by shareholders ("Dissenting Shareholders") exercising dissenters'
          rights
          pursuant to Article 113 of the CBCA), issued and outstanding immediately
          before
          the Effective Time shall be converted (without the surrender of stock
          certificates or any other action) into one fully paid and non-assessable
          share
          of SpaceDev, Inc. common stock, and all shares of SPDV common stock shall
          be
          cancelled and retired and shall cease to exist. It is intended that at
          the
          Effective Time, the shares of SpaceDev, Inc. common stock shall be listed
          for
          quotation on the NASD OTC Bulletin Board Market, under the ticker symbol,
          "SPDV.OB."

(b)
          Each
          share of SPDV Series C preferred stock (other than Dissenting Shares),
          issued
          and outstanding immediately before the Effective Time, shall be converted
          (without the surrender of stock certificates or any other action) into
          one fully
          paid and non-assessable share of Series C Convertible Redeemable Preferred
          Stock, par value $0.001 per share, of SpaceDev, Inc. ("SpaceDev, Inc. Series
          C
          preferred stock"), and all shares of SPDV Series C preferred stock shall
          be
          cancelled and retired and shall cease to exist.

(c)
          Each
          share of SPDV Series D-1 preferred stock (other than Dissenting Shares),
          issued
          and outstanding immediately before the Effective Time, shall be converted
          (without the surrender of stock certificates or any other action) into
          one fully
          paid and non-assessable share of Series D-1 Amortizing Convertible Perpetual
          preferred stock, par value $0.001 per share, of SpaceDev, Inc. ("SpaceDev,
          Inc.
          Series D-1 preferred stock"), and all shares of SPDV Series D-1 preferred
          stock
          shall be cancelled and retired and shall cease to exist.

(d)
          Each
          option, warrant, purchase right, unit, convertible note or other such security
          of the Company issued and outstanding immediately before the Effective
          Time, by
          virtue of the Merger Reincorporation and without any action on part of
          the
          holder thereof, shall be (i) converted into and shall be an identical security
          of SpaceDev, Inc., and (ii) in the case of securities to purchase or convert
          into shares of SPDV common stock, converted into the right to purchase
          or
          convert into the same number of shares of SpaceDev, Inc. common stock as
          the
          number of shares of SPDV common stock that were acquirable pursuant to
          such
          security, at a price per share equal to the exercise or conversion price
          of such
          security, and upon the same terms and subject to the same conditions as
          set
          forth in the agreements entered into by the Company pertaining to such
          security.
          A number of shares of SpaceDev, Inc. common stock shall be reserved for
          the
          purposes of the exercise of such options, warrants, purchase rights, units
          or
          other such securities, or conversion of such convertible notes and of SpaceDev,
          Inc. Series C preferred stock and SpaceDev, Inc. Series D-1 preferred stock,
          equal to the number of shares of SPDV common stock so reserved immediately
          before the Effective Time.

(e)
          Each
          share of treasury stock owned by the Company shall no longer be outstanding
          and
          shall be cancelled and retired and shall cease to exist.

(f)
          At
          the Effective Time, the 100 shares of SpaceDev, Inc. common stock presently
          issued and outstanding in the name of the Company shall be cancelled and
          retired
          and resume the status of authorized and unissued shares of SpaceDev, Inc.
          common
          stock, and no shares of SpaceDev, Inc. common stock or other securities
          of
          SpaceDev, Inc. common stock shall be issued in respect
          thereof.

4.2.
        Certificates.    At and after the Effective Time, all of the
        outstanding certificates which immediately prior thereto represented shares
        of
        SDPV common stock or SPDV preferred stock (other than Dissenting Shares),
        or
        options, warrants, purchase rights, units or other securities of the Company,
        if
        any, shall be deemed for all purposes to evidence ownership of and to represent
        the shares of the respective SpaceDev, Inc. common stock or series of SpaceDev,
        Inc. preferred stock, or options, warrants, purchase rights, units or other
        securities of SpaceDev, Inc., if any, as the case may be, into which the
        shares
        of SPDV common stock or SPDV preferred stock, or options, warrants, purchase
        rights, units or other securities of the Company represented by such
        certificates have been converted as herein provided and shall be so registered
        on the books and records of the Surviving Corporation or its transfer agent.
        The
        registered owner of any such outstanding certificate shall, until such
        certificate shall have been surrendered for transfer or otherwise accounted
        for
        to the Surviving Corporation or its transfer agent, have and be entitled
        to
        exercise any voting and other rights with respect to, and to receive any
        dividends and other distributions upon, the shares of SpaceDev, Inc. common
        stock or series of SpaceDev, Inc, preferred stock, or options, warrants,
        purchase rights, units or other securities of SpaceDev, Inc., if any, as
        the
        case may be, evidenced by such outstanding certificate, as above
        provided.


          
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4.3.
          Rights of Former Holders.    From and after the Effective
          Time, no holder of certificates which evidenced SPDV common stock or SPDV
          preferred stock immediately before the Effective Time shall have any rights
          with
          respect to the shares formerly evidenced by those certificates, other than
          to
          receive the shares of SpaceDev, Inc. common stock or SpaceDev preferred
          stock
          into which such SPDV common stock or SPDV preferred stock shall have been
          converted pursuant to the Reincorporation Merger.

4.4.
          Dissenters' Rights.    No Dissenting Shareholder shall be
          entitled to shares of SpaceDev common stock or SpaceDev preferred stock
          under
          this Article IV unless and until the holder thereof shall have failed to
          perfect
          or shall have effectively withdrawn or lost such holder's right to dissent
          from
          the Reincorporation Merger under the CBCA, and any Dissenting Shareholder
          shall
          be entitled to receive only the payment provided by Article 113 of the
          CBCA with
          respect to Dissenting Shares owned by such Dissenting Shareholder. If any
          person
          or entity who otherwise would be deemed a Dissenting Shareholder shall
          have
          failed to properly perfect or shall have effectively withdrawn or lost
          the right
          to dissent with respect to any shares which would be Dissenting Shares
          but for
          that failure to perfect or withdrawal or loss of the right to dissent,
          such
          Dissenting Shares shall thereupon be treated as though such Dissenting
          Shares
          had been converted into shares of SpaceDev, Inc. common stock or SpaceDev
          preferred stock pursuant to Section 4.1 hereof.

ARTICLE
          V

CONDITION

5.1.
          Condition to Each Party's Obligation to Effect the Reincorporation
          Merger.    The respective obligation of each party hereto to
          effect the Reincorporation Merger is subject to receipt before the Effective
          Time of the requisite approval of this Agreement and the transactions
          contemplated hereby by the Shareholders pursuant to the CBCA and the Articles
          of
          Incorporation and bylaws of the Company.

ARTICLE
          VI

TERMINATION

6.1.
          Termination.    This Agreement may be terminated, and the
          Reincorporation Merger may be abandoned, at any time before the Effective
          Time,
          whether before or after approval of this Agreement by the Shareholders,
          if the
          board of directors of the Company determines for any reason, in its sole
          judgment and discretion, that the consummation of the Reincorporation Merger
          would be inadvisable or not in the best interests of the Company and its
          shareholders. Notwithstanding the foregoing, the Company retains the right
          to
          elect not to proceed with the Reincorporation Merger if Shareholders holding
          more than 1% of the SPDV common stock or more than 1% of the SPDV preferred
          stock entitled to vote properly exercise their dissenters' rights. In the
          event
          of the termination and abandonment of this Agreement, this Agreement shall
          become null and void and have no effect, without any liability on the part
          of
          either the Company or SpaceDev, Inc., or any of their respective shareholders,
          directors or officers.

ARTICLE
          VII

MISCELLANEOUS
          AND GENERAL

 

          
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7.1.
        Further Assistance.    From and after the Effective Time, as
        and when required by SpaceDev, Inc. or by its successor and assigns, there
        shall
        be executed and delivered on behalf of the Company such deeds and other
        instruments, and there shall be taken or caused to be taken by it such further
        and other action, as shall be appropriate or necessary in order to vest,
        perfect
        or confirm, of record or otherwise, in SpaceDev, Inc. the title to and
        possession of all the property, interests, assets, rights, privileges,
        immunities, power, franchises and authority of the Company, and otherwise
        to
        carry out the purposes of this Agreement, and the officers and directors
        of
        SpaceDev, Inc. are fully authorized in the name and on behalf of the Company
        or
        otherwise to take any and all such action and to execute and deliver any
        and all
        such deeds and other instruments.
 
7.2.
          Modification or Amendment.    Subject to the provisions of
          applicable law, at any time before the Effective Time, the parties hereto
          may
          modify or amend this Agreement; provided, however, that an amendment made
          after
          the approval of this Agreement by the holders of SPDV common stock and
          other
          shareholders shall not (i) alter or change the amount or kind of shares
          and/or
          rights to be received in exchange for or on conversion of all or any of
          the
          shares or any class or series thereof of such corporation, (ii) alter or
          change
          any provision of the certificate of incorporation of the Surviving Corporation
          to be effected by the Reincorporation Merger, or (iii) alter or change
          any of
          the terms or conditions of this Agreement if such alteration or change
          would
          adversely affect the holders of any class or series of capital stock of
          any of
          the parties hereto.

7.3.
          Counterparts.    This Agreement may be executed in any
          number of counterparts, each such counterpart being deemed to be an original
          instrument, and all such counterparts shall together constitute the same
          agreement.


7.4.
          Entire Agreement.    This Agreement constitutes the entire
          agreement and supersedes all other prior agreements, understandings,
          representations and warranties both written and oral, among the parties,
          with
          respect to the subject matter hereof.

7.5.
          No
          Third Party Beneficiaries.    This Agreement is not intended
          to confer upon any person other than the parties hereto any rights or remedies
          hereunder.

7.6.
          Severability.    The provisions of this Agreement shall be
          deemed severable and the invalidity or unenforceability of any provision
          shall
          not affect the validity or enforceability of the other provisions hereof.
          If any
          provision of this Agreement, or the application thereof to any person or
          any
          circumstance, is determined by any court or other authority of competent
          jurisdiction to be invalid or unenforceable, (a) a suitable and equitable
          provision shall be substituted therefore in order to carry out, so far
          as may be
          valid and enforceable, the intent and purpose of such invalid or unenforceable
          provision and (b) the remainder of this Agreement and the application of
          such
          provision to other persons or circumstances shall not be affected by such
          invalidity or unenforceability, nor shall such invalidity or unenforceability
          affect the validity or enforceability of such provision, or the application
          thereof, in any other jurisdiction.

7.7.
          Headings.    The headings herein are for convenience of
          reference only, do not constitute part of this Agreement and shall not
          be deemed
          to limit or otherwise affect any of the provisions hereof.

7.8.
          Approval of the Company as the Sole Stockholder of SpaceDev,
          Inc.    By its execution and delivery of this Agreement, the
          Company, as the sole stockholder of SpaceDev, Inc., consents to, approves
          and
          adopts this Agreement and approves the Reincorporation Merger, subject
          to the
          approval and adoption of this Agreement by the affirmative vote of respective
          majorities of the outstanding shares of each class and series of capital
          stock
          of the Company entitled to vote. The Company agrees to execute such instruments
          as may be necessary or desirable to evidence its approval and adoption
          of this
          Agreement and Reincorporation Merger as the sole stockholder of SpaceDev,
          Inc.

[SIGNATURE
          PAGE FOLLOWS]
 

            
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IN
          WITNESS WHEREOF, this Agreement has been duly executed and delivered by
          the duly
          authorized officers of the parties hereto as of the date first written
          above.



SpaceDev,
        Inc.,  a
        Colorado Corporation
 


By:  
        /s/ Xxxx X. Xxxxxxxxx        

Name:  Xxxx
        X. Xxxxxxxxx

Title:
        Chief Executive Officer and Chairman of the Board of Directors, SpaceDev,
        Inc.,
        a Colorado Corporation




                                    SpaceDev,
        Inc.,   a
        Delaware Corporation


By:  
        /s/ Xxxxxxx X. Slanksy         

Name:  Xxxxxxx
        X. Xxxxxxx

Title:  President,
        Chief Financial Officer, Corporate Secretary and Treasurer, SpaceDev, Inc.,
        a
        Delaware Corporation
 
 

 

          
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AGREEMENT AND PLAN OF MERGER

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