|
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.").
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:
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.
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").
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.
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.
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:
(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
|
