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SPACEDEV, INC.

COMMON STOCK, $0.0001 par value per share

846241107

October 20, 2008

 

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    This statement relates to the Common Stock, $0.0001 par value per share (the “Shares”), of SpaceDev, Inc. (the “Issuer”), and the principal executive offices of such entity are located at 13855 Stowe Drive, Poway, CA 92064.

 

This statement is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by Sierra Nevada Corporation, a Nevada corporation (“SNC”).  The address of the principal business and the principal office of SNC is 444 Salomon Circle, Sparks, NV 89434.  SNC is a world-class prime systems integrator and electronic systems provider known for its rapid, innovative, and agile technology solutions. 

The name, business address, present principal occupation or employment and citizenship of each director and executive officer (including a director and officer who may be a controlling person) of SNC is set forth on Schedule A.

During the last five years, none of SNC or any of the persons listed on Schedule A attached hereto have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

On October 20, 2008, SNC, the Issuer and SDV Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of SNC (“Merger Subsidiary”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which Merger Subsidiary will, subject to the satisfaction or waiver of the conditions therein, merge with and into the Issuer, the separate corporate existence of Merger Subsidiary shall cease and the Issuer shall be the successor or surviving corporation of the merger (the “Merger”), and a wholly-owned subsidiary of SNC.

As an inducement to enter into the Merger Agreement, and in consideration thereof, SNC entered into (i) voting agreements with Mark N. Sirangelo, Richard B. Slansky, Scott F. Tibbits, Rockmore Investment Master Fund and Portside Growth & Opportunity Fund (the “Base Holders”), each effective as of the date of the Merger Agreement (the “Base Voting Agreements”), (ii) voting agreements with Valens Offshore SPV I, Ltd., Valens U.S. SPV I LLC and PSource Structured Debt Limited  (the “Laurus Holders”), each effective as of the date of the Merger Agreement (the “Laurus Voting Agreements”), (iii) voting agreements with The Tail Wind Fund, Ltd., Warrant Strategies, LLC, Fort Mason Partners, LP and Fort Mason Master LP (the “Time-Limited Holders”), effective as of the date of the Merger Agreement (the “Time-Limited Voting Agreements”) and (iv) voting agreements with Susan C. Benson, individually and as trustee of certain trusts, and the Space Development Institute, of which Ms. Benson is a director (the “Benson Holders” and together with the Base Holders, the Laurus Holders and the Time-Limited Holders, the “Stockholders”), each effective as of the date of the Merger Agreement, (the “Benson Voting Agreement” and, together with the Base Voting Agreements, the Laurus Voting Agreements and the Time-Limited Voting Agreements, the “Voting Agreements”).

Pursuant to the Voting Agreements, each Stockholder has granted to SNC an irrevocable proxy to, at any meeting of the stockholders of Issuer called to vote upon the Merger and the Merger Agreement, or at any adjournment thereof, or in any other circumstances upon which a vote, consent or other approval with respect to the Merger and the Merger Agreement is sought, vote and exercise all voting and related rights of such Stockholder of its beneficially held Shares (A) in favor of the adoption by Issuer of the Merger and the approval of the Merger Agreement and each of the transactions contemplated thereby and (B) against certain alternative corporate transactions, each as more fully described in the Voting Agreements.

 

Shared voting power with respect to the Shares owned by the Stockholders may be deemed to have been acquired through execution of the Voting Agreements.  SNC has not expended any funds in connection with the execution of the Voting Agreements.

Schedule B attached hereto contains the names and number of Shares beneficially held by each Stockholder.

The foregoing descriptions of the Merger Agreement and the Voting Agreements do not purport to be complete and are qualified in their entirety by reference to such agreements. A copy of the Merger Agreement, listed as Exhibit 2.1 hereto, is incorporated by reference to Exhibit 2.1 to Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 21, 2008. A copy of the form of Base Voting Agreement, listed as Exhibit 2.2 hereto, is incorporated by reference to Exhibit 10.1 to Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 21, 2008.  All other forms of Voting Agreement are attached as exhibits hereto.  The forms of Laurus Voting Agreement and Time-Limited Voting Agreement are identical in all material respects to the form of Base Voting Agreement except for (a) an additional expiration event at January 31, 2009, and (b) provisions in the Laurus Voting Agreements permitting certain transfers between related entities.  The form of Benson Voting Agreement is identical in all material respects to the Base Voting Agreement except for the inclusion of a covenant on SNC’s part upon consummation of the Merger to request substitution of certain personal guarantees applicable or potentially applicable to Susan Benson and/or to the estate of James Benson.

 

 

As described in Item 3 above, this statement is being filed in connection with the Merger Agreement and the Voting Agreements.

Upon the consummation of the Merger, (i) the Issuer will be acquired by and become a wholly-owned subsidiary of SNC and (ii) each Share will be converted into the right to receive cash in an amount calculated pursuant to on formulas contained in the Merger Agreement.

The transaction is subject to approval by the Issuer stockholders and other closing conditions.

Following the Merger, the Shares will no longer be traded on the OTC:BB, there will be no public market for the Shares, and registration of the Shares under the Exchange Act will be terminated.

Except as set forth in this Statement and in connection with the Merger described above, SNC does not have any plan or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

 

 

(a) and (b) Other than those Shares that may be deemed to be beneficially owned in connection with the Voting Agreements, SNC has not acquired and, for the purposes of Rule 13d-4 promulgated under the Exchange Act, does not beneficially own any Shares.

As a result of the Voting Agreements, SNC may be deemed to have the power to vote up to an aggregate of 18,642,156 Shares in favor of approval of the Merger Agreement, and thus, for the purpose of Rule 13d-3 promulgated under the Exchange Act, SNC may be deemed to be the beneficial owner of an aggregate of 18,642,156 Shares. All Shares that may be deemed to be beneficially owned by SNC constitute approximately 37% of the Shares outstanding as of October 20, 2008 (as represented by Issuer in the Merger Agreement and calculated in accordance with Exchange Act Rule 13d-3).

SNC is not entitled to any rights as a stockholder of Issuer as to the Shares covered by the Voting Agreements, except as otherwise expressly provided in the Voting Agreements. This Schedule 13D shall not be construed as an admission by SNC that SNC is, for the purposes of Section 13(d) of the Securities Exchange Act of 1934, the beneficial owner of any shares of Issuer common stock covered by the Voting Agreements.

 

None of the persons named in Schedule A hereto beneficially own any Shares apart from any beneficial interest reported by SNC hereunder.

(c) Except for the Merger Agreement and the Voting Agreements described above, to the knowledge of SNC, no transactions in the class of securities reported have been effected during the past 60 days by any person named in Schedule A or Item 5(a).

(d) To the knowledge of SNC, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of Issuer reported herein.

(e) Inapplicable.

 

 

Except for the Merger Agreement and the Voting Agreements described above, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, between the persons enumerated in Item 2, and any other person, with respect to any securities of Issuer, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements. Except as set forth above and as further described below, SNC does not have any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to securities of the Issuer, including, but not limited to, transfer or voting of any such securities, finder’s fees, joint ventures, loans or option arrangements, puts or calls, guarantees of profits, division of profits or losses or the giving or withholding of proxies.

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