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SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPACEDEV, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
COLORADO 84-1374613
(STATE OF OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
13855 STOWE DRIVE, POWAY, CALIFORNIA 92064
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PLAN NAMES:
STOCK OPTION PLAN OF 1999
EMPLOYEE STOCK PURCHASE PLAN OF 1999
CHARLES H. LLOYD WITH COPIES TO:
CHIEF FINANCIAL OFFICER GRETCHEN COWEN, ESQ.
SPACEDEV, INC. POPOV & MCCULLOGH, LLP
13855 STOWE DRIVE 4180 LA JOLLA VILLAGE DR., SUITE 315
POWAY, CA 92064 LA JOLLA, CALIFORNIA 92037
(858) 375-2030 (858) 457-2900
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE OF AGENT FOR SERVICE)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of registration
registered registered(1) share(2) price fee
<S> <C> <C> <C> <C>
Stock Options and 5,184,698 Shares(1) (2) $6,224,676.40 $1,643.32
Common Stock (par
value $.0001)
-----------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interest to be offered or
sold pursuant to the employee benefit plan(s) described herein.
(2) This estimate is made pursuant to Rule 457(h) solely for purposes of
calculating the registration fee, and is determined according to the
following offering price information: under the Stock Option Plan of 1999
(i) 450,000 common shares are subject to outstanding options with an
exercise price of $1.34 per share, (ii) 250,000 common shares are subject
to outstanding options with an exercise price of $1.44 per share, (iii)
250,000 common shares are subject to outstanding options with an exercise
price of $1.25 per share, (iv) 250,000 common shares are subject to
outstanding options with an exercise price of $1.23 per share, (v) 2,222
common shares are subject to outstanding options with an exercise price of
$2.25 per shares, (vi) 4,425 common shares are subject to outstanding
options with an exercise price of $1.13 per share, (vii) 400,000 common
shares are subject to outstanding options with an exercise price of $1.28
per share, (viii) 1,000 common shares are subject to outstanding options
with an exercise price of $1.3438 per share, (ix) 25,000 common shares are
subject to outstanding options with an exercise price of $1.0312 per share,
(x) 10,500 common shares are subject to outstanding options with an
exercise price of $1.125 per share, and (xi) the remaining 3,541,551 common
shares are reserved for issuance upon exercise of options to be granted in
the future under the combined Stock Option Plan of 1999 and Employee Stock
Purchase Plan of 1999 (the "Plans"). Pursuant to Rule 457(h), for all
shares of common stock being registered hereunder with an exercise price
which cannot be presently determined (3,541,551 shares of common stock
under the Plans), the Proposed Maximum Offering Price is $1.15 per share of
common stock, which is based on the average of the high and low prices for
the Company's common stock as reported on the Nasdaq Over-The-Counter
Bulletin Board on September 28, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended, the documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants in each
of the following employee benefit plans of SpaceDev, Inc. (the "Company"):
- Stock Option Plan of 1999, as amended
- Employee Stock Purchase Plan of 1999
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
Item 2. Registrant Information and Employee Plan Annual Information.
Upon the written or oral request by a participant in any of the
employee benefit plans listed in Item 1 of this Part I, the Company will provide
any of the documents incorporated by reference in Item 3 of Part II of this
Registration Statement (which documents are incorporated by reference into this
Section 10(a) prospectus), any documents required to be delivered to
participants pursuant to Rule 428(b) and other additional information about such
plans. All of such documents and information will be available without charge.
Any and all such requests should be directed to the Company at 13855 Stowe
Drive, Poway, California 92064, telephone number (858) 375-2025, attention
Corporate Secretary.
EXPLANATORY NOTE
Included on the immediately following pages is a "reoffer prospectus."
The selling stockholder can use this document in connection with the reoffer and
resale of restricted securities.
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REOFFER PROSPECTUS
4,184,698 Shares of Common Stock under the Stock Option Plan of 1999
1,000,000 Shares of Common Stock under the Employee Stock Purchase Plan of 1999
SPACEDEV, INC.
The shares of common stock, $.0001 par value (the "Common Stock"), of
SpaceDev, Inc. (the "Company" or "we") covered by this Reoffer Prospectus may be
offered and sold to the public by stockholders of the Company (the "Selling
Stockholders"), some of whom may be deemed to be "affiliates" (as that term is
defined in Rule 405 of the General Rules and Regulations of the Securities Act
of 1933, as amended (the "Securities Act")) of the Company. The Selling
Stockholders acquired or will acquire the Shares through their exercise of stock
options granted to them under the Company's Stock Option Plan of 1999 (the
"Option Plan"), and Employee Stock Purchase Plan of 1999 (the "Purchase Plan").
All or a portion of the Shares may be offered for sale, from time to
time, on the Nasdaq OTC Bulletin Board or otherwise, at prices and terms then
obtainable, subject to certain limitations. However, any Shares covered by this
Reoffer Prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 instead of pursuant to this Reoffer
Prospectus. See "Plan of Distribution."
We will not receive any of the proceeds from the sale of the Shares by
the Selling Stockholders, but we will receive funds in connection with the
exercise of stock options relating to such Shares, which funds will be used by
the Company for working capital. All expenses of registration incurred in
connection with this offering are being borne by the Company, but all brokerage
commissions, discounts and other expenses incurred by individual Selling
Stockholders will be borne by such Selling Stockholders.
Our Common Stock is listed on the Nasdaq OTC Bulletin Board under the
symbol "SPDV." The closing bid and ask prices of our Common Stock on the Nasdaq
OTC Bulletin Board on June 26, 2000 were $1.00 and $1.31, respectively.
See "Risk Factors" beginning on page 3 for information that should be
carefully considered by prospective investors.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Reoffer Prospectus is September 28, 2000.
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TABLE OF CONTENTS
AVAILABLE INFORMATION......................................................1
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................1
PROSPECTUS SUMMARY.........................................................2
The Company.......................................................2
The Offering......................................................3
Risk Factors......................................................3
RISK FACTORS...............................................................3
Risks Related to Our Business.....................................3
Risks Related to Share Ownership..................................8
Market and Currency Risks.........................................9
FORWARD-LOOKING STATEMENTS................................................10
USE OF PROCEEDS...........................................................10
SELLING STOCKHOLDERS......................................................11
PLAN OF DISTRIBUTION......................................................12
INDEMNIFICATION OF DIRECTORS AND OFFICERS.................................13
LEGAL MATTERS.............................................................13
EXPERTS...................................................................13
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AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file periodic reports, proxy statements and
other information with the Securities and Exchange Commission (the
"Commission"). The reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, Room 1024, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices. Copies of such materials
can also be obtained by mail from the public reference facilities of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. You may obtain information on the operation of the Public Reference Room
by calling the Commission at 1-(800)SEC-0330. The Commission also maintains a
site on the World Wide Web that contains reports, proxy and information
statements and other information regarding registrants that file electronically.
The address of such site is http://www.sec.gov. See "Incorporation of Certain
Documents by Reference."
The Company has filed with the Commission a Registration Statement on
Form S-8 under the Securities Act with respect to the shares of Common Stock
offered by this Reoffer Prospectus. This Reoffer Prospectus does not contain all
the information set forth in or annexed as exhibits to the Registration
Statement. For further information with respect to the Company and the Shares of
Common Stock offered by this Reoffer Prospectus, reference is made to the
Registration Statement and to the financial statements, schedules and exhibits
filed as part thereof or incorporated by reference herein. Copies of the
Registration Statement, together with such financial statements, schedules and
exhibits, may be obtained from the public reference facilities of the Commission
at the addresses listed above, upon payment of the charges prescribed therefor
by the Commission. Statements contained in this Reoffer Prospectus as to the
contents of any contract or other document referred to are not necessarily
complete and, in each instance, reference is made to the copy of such contract
or other documents, each such statement being qualified in its entirety by such
reference. Copies of such contracts or other documents, to the extent that they
are exhibits to this Registration Statement, may be obtained from the public
reference facilities of the Commission, upon the payment of the charges
prescribed therefor by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the Exchange Act are hereby incorporated by reference,
except as superseded or modified herein:
1. The Company's Registration Statement on Form 10-SB (File No.
000-28947), pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
2. The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended March 31, 2000.
3. The Company's Current Report on Form 8-K filed with the Commission
on February 23, 2000.
4. The Company's Current Report on Form 8-K filed with the Commission
on March 31, 2000.
5. The Company's Current Report on Form 8-K filed with the Commission
on June 2, 2000.
6. The Company's Definitive Proxy Statement dated June 20, 2000
relating to its annual shareholders' meeting of stockholders held
on July 17, 2000.
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7. The Company's Current Report on Form 8-K filed with the Commission
on July 5, 2000.
8. The Company's Quarterly Report on Form 10-QSB for the quarterly
period ended June 30, 2000.
9. The Company's Current Report on Form 8-K filed with the Commission
on September 21, 2000.
In addition, all documents filed by the Company pursuant to
Sections13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Reoffer Prospectus and prior to the termination of the offering of the Shares of
Common Stock shall be deemed to be incorporated in and made a part of this
Reoffer Prospectus by reference from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Reoffer Prospectus to the extent that a statement contained herein or in
any subsequently filed document that is also incorporated by reference herein
modifies or replaces such statement. Any statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Reoffer Prospectus.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner of Shares of Common Stock, to whom this Reoffer
Prospectus is delivered, on written or oral request of any such person, a copy
of any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents). Written or oral requests for such copies
should be directed to the Company, at 13855 Stowe Drive, Poway, California
92064, telephone number (858) 375-2025, attention Corporate Secretary.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this Reoffer
Prospectus. This summary is not complete and may not contain all of the
information that you should consider before purchasing our Common Stock. Certain
statements made in this Reoffer Prospectus constitute "forward-looking
statements" under the Private Securities Litigation Reform Act of 1995. See
"Forward-Looking Statements."
THE COMPANY
OUR BUSINESS OBJECTIVES
The Company's overall vision is to establish itself as a space
exploration and development company operating in "small space," with a
concentration on small spacecraft, small space transportation systems and
focused, low-cost mission solutions. Our approach is to provide small spacecraft
- approximately 250kg mass and less - and compatible small space transportation
vehicles to a growing market of commercial and government customers. Our
business is complemented through a wholly owned subsidiary, Integrated Space
Systems, Inc. ("ISS"). We are also in the process of developing and testing
hybrid space propulsion systems.
Since inception of the Company, one of our specific objectives has been
to be the first company to successfully define, implement and execute
commercial, low-cost deep-space missions, i.e., missions to the Moon and beyond.
Prior deep-space missions, both U.S. and foreign, have been predominantly
government-defined and relatively expensive.
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One of our primary solutions to lowering the cost of small spacecraft
missions is to use common commercial business practices, whenever possible,
rather than the government-driven processes that dominate the space industry. In
other words, it is our intention to follow commercial business practices by
submitting fixed-priced bids, as opposed to government contractors who often
submit bids on cost plus fixed fee or time and materials bases. Additionally, we
seek to avoid "re-inventing the wheel" on each project and instead intend to
rely on existing technologies used in new combinations. Use of existing
technologies serves to reduce operational risk since they are proven and have
flown in space before.
OUR HISTORY
The Company was organized under the laws of the State of Colorado on
December 23, 1996 as Pegasus Development Group, Inc., and on October 22, 1997
was acquired by SpaceDev, LLC, a Nevada limited liability company, in a reverse
acquisition, with the Company emerging as the surviving entity. The name was
changed to SpaceDev, Inc. on December 17, 1997. The Company became a publicly
traded company in August 1998 and is currently trading on the Over-The-Counter
Bulletin Board exchange under the symbol "SPDV."
Our principal executive offices are located at 13855 Stowe Drive,
Poway, California 92064, and our telephone number is (858) 375-2000.
THE OFFERING
The Selling Stockholders may offer and sell up to 793,147 Shares of
our Common Stock under this Reoffer Prospectus. We will not receive any of the
proceeds from the sale of these Shares, but we will receive funds in connection
with the exercise of stock options relating to such Shares, which funds will be
used by the Company for working capital. See "Use of Proceeds" and "Selling
Stockholders."
RISK FACTORS
Investing in our Common Stock involves significant risks. You should
consider the information under the caption "Risk Factors" below in deciding
whether to purchase the Shares of Common Stock offered under this Reoffer
Prospectus.
RISK FACTORS
Purchasing the Shares of Common Stock offered by this Reoffer
Prospectus involves a high degree of risk. Before purchasing our Common Stock,
you should carefully consider the following risk factors and the other
information contained elsewhere in this Reoffer Prospectus. In addition to
historical information, the following discussion, including but not limited to
risks as to the Company's ability to continue as a going concern and the
expectation of financial performance, and other parts of this Reoffer Prospectus
contain forward-looking information that involves risks and uncertainties. Such
statements are based on management's current expectations and are subject to a
number of factors and uncertainties which could cause actual results to differ
materially from those described in the forward-looking statements, some of which
are described in the following risk factors.
RISKS RELATED TO OUR BUSINESS
GOING CONCERN UNCERTAINTY
The Company's auditors have expressed a formal auditors' opinion that
the Company's prior financial position raises "substantial doubt about its
ability to continue as a going concern." The Company's opportunity to continue
as a going concern depends upon our ability to consummate additional funding.
This funding can come from a variety of sources, including public or private
equity markets, state and federal grants and government and commercial customer
program funding. However, there can be no assurance that we will be able to
obtain such funding as needed. The likelihood of our success must be considered
in light of the expenses, difficulties and delays frequently encountered in
connection with the developing businesses, those historically encountered by us,
and the competitive environment in which we will operate.
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EXPECTATION OF CONTINUED LOSSES
The Company's business strategy requires significant capital
expenditures. We will incur a substantial portion of these expenditures before
we can generate significant revenue. Combined with operating expenses, these
capital expenditures will result in a negative cash flow until the Company
establishes an adequate revenue-generating customer base. We expect continued
net losses from operations and do not expect the Company to generate net
positive cash flow from operations sufficient to fund both operations and
capital expenditures until the launch of its first commercial spacecraft,
currently scheduled for the year 2002. There is no assurance that the Company
will become operational on this timetable, or at all, or that the Company will
achieve or sustain any positive cash flow or profitability thereafter.
NO ASSURANCE OF SUCCESSFUL OR TIMELY DEVELOPMENT OF PRODUCTS
Our deep space spacecraft is currently under various stages of
development. We are also in the process of developing and testing hybrid
rockets. Further development and testing will be required to prove additional
performance capability beyond current tests and commercial viability.
Additionally, the final cost of development cannot be determined until
development is complete. The success, if any, will depend on the ability to
timely complete our spacecraft within estimated cost parameters and efficiently
deploy the product in a cost effective manner.
UNCERTAINTY OF MARKETPLACE FOR THE COMPANY
There can be no assurance that there will be a demand for the Company's
products and services or that we will be successful in obtaining a sufficient
market share to sustain the business of the Company or to achieve profitable
operations. The Company's business plan is based on the assumption that
significant revenues will be generated in connection with commercial space
exploration. Because commercial space exploration is still a relatively new
concept, it is difficult to accurately predict the ultimate size of the market.
The Company has a limited prior operating history, and there can be no assurance
that the Company will increase its revenues and become profitable. Additionally,
if either the demand for the particular products produced or services rendered
by the Company or if general economic conditions deteriorate significantly, the
business of the Company could be impacted to a substantial degree resulting in
lower profitability or losses as a direct result. Many of the Company's products
and services are new and unproven, and the true level of consumer demand is
uncertain. Lack of significant market acceptance of the Company's products and
services, delays in such acceptance, or failure of markets to develop could
negatively affect the Company's business, financial condition, and results of
operations. Many of the factors which affect the Company and the business of the
Company are dictated by the marketplace and are beyond our control.
DEPENDENCE ON KEY PERSONNEL
Our success is substantially dependent upon the efforts of certain
members of our management team, including our chief executive officer, James W.
Benson, our chief operating officer, Stanley W. Dubyn, and our chief financial
officer, Charles H. Lloyd. Each of these individuals has substantial prior
business experience and we have added other experienced key personnel to the
Company's staff. The loss of any of these persons could have a material adverse
effect on the Company if suitable replacements are not found. The Company's
future success is likely to depend substantially on its continued ability to
attract and retain highly qualified personnel. The competition for such
personnel is intense, and our inability to attract and retain such personnel
could have a material adverse effect on the Company. The Company does not have
current key man life insurance on any of its key personnel. See "Management."
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TECHNOLOGICALLY ADVANCED PRODUCTS AND SERVICES
Most of the products developed and manufactured by the Company are
technologically advanced and sometimes novel systems that must function under
demanding operating conditions. Even though we believe the Company employs
sophisticated design, manufacturing, and testing practices, there can be no
assurance that the Company's products will be successfully launched or operated
or that they will be developed or will perform as intended. Like most
organizations that have launch and satellite programs, the Company will likely
experience some product and service failures, schedule delays, and other
problems in connection with its launches in the future. The Company's products
and services are and will continue to be subject to significant technological
change and innovation. The Company's success will generally depend on its
ability to penetrate and retain markets for its existing products and services
and to continue to conceive, design, manufacture and market new products and
services on a cost-effective and timely basis. We anticipate that the Company
will incur significant expenses in the design and initial manufacture and
marketing of new products and services. There can be no assurance that the
Company will be able to achieve the technological advances necessary to remain
competitive and profitable, that new products and services will be developed and
manufactured on schedule and on a cost-effective basis, that anticipated markets
will exist or develop for new products or services, or that its existing
products and services will not become technologically obsolete.
LAUNCH DELAYS OR FAILURE
A launch failure would adversely affect the Company's cash flow since a
large portion of customer payments is contingent upon a successful launch.
Satellite launches are subject to significant risks, including causing disabling
damage to or loss of a satellite. Delays in the launch could also adversely
affect the Company's revenues as a customer may have timing requirements for
milestone payments. Delays could be caused by a number of factors, including
designing, constructing, integrating, or testing the satellite, satellite
components, or related ground systems; delays in receiving the license necessary
to operate the satellite systems; delays in obtaining the customer's payload;
delays related to the launch vehicle; weather; and other events beyond the
Company's control. Delays and the perception of potential delay could negatively
affect the Company's marketing efforts. There is no assurance that the Company
will be able to launch satellites on a timely basis and any delays in the launch
could have a material adverse effect on the Company's financial position.
COMPETITION
The Company competes in markets that are new, intensely competitive and
rapidly changing. We expect to experience increasing competition from potential
competitors, many of which will have significantly greater financial, technical,
marketing and other resources. Our competitors may be able to respond more
quickly to new or emerging technologies and changes in customer requirements
than we can. Virtually all of the Company's products and services face
significant competition from existing and potential competitors, many of whom
are larger and have substantially greater resources than the Company. The
Company's satellites and satellite subsystem products compete with products and
services produced or provided by government entities and numerous private
entities, including TRW Inc., Ball Aerospace and Technology Corporation,
Lockheed-Martin, GM Hughes Electronics Corporation ("Hughes"), Orbital Sciences
Corp., Spectrum Astro, Inc., Surrey Technologies and Matra Marconi.
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GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES
Our business activities are regulated by various agencies and
departments of the U.S. government and, in certain circumstances, the
governments of other countries. Several government agencies, including NASA and
the U.S. Air Force, maintain Export Control Offices to ensure that any
disclosure of scientific and technical information (STI) complies with the
Export Administration Regulations and the International Traffic in Arms
Regulations (ITAR). Exports of the Company's products, services, and technical
information require either Technical Assistance Agreements (TAAs) or licenses
from the U.S. Department of State depending on the level of technology being
transferred. This includes recently published regulations restricting the
ability of U.S. based companies to complete off-shore launches, or to export
certain satellite components and technical data to any country outside the
United States. The export of information with respect to ground-based sensors,
detectors, high-speed computers, and national security and missile technology
items are controlled by the Department of Commerce. The government is very
strict with respect to compliance and has served notice that failure to comply
with the ITAR and/or the Commerce Department regulations may subject guilty
parties to fines of up to $1 million and/or up to 10 years imprisonment per
violation. Failure to comply with any of the above mentioned regulations could
have serious adverse effects as dictated by the rules associated with compliance
to the ITAR regulations. Our conservative position is to consider any material
beyond standard marketing material to be regulated by ITAR regulations.
In addition to the standard local, state and national government
regulations that all businesses must adhere to, the space industry has specific
regulations. Command and telemetry frequency assignments for space missions are
regulated internationally by the International Telecommunications Union (ITU)and
in the U.S. by the Federal Communications Commission (FCC) and National
Telecommunications Information Agency (NTIA). All launch vehicles that are
launched from a launch site in the United States must pass certain launch range
safety regulations that are administered by the U.S. Air Force. In addition, all
commercial space launches that the company would perform require a license from
DOT. Satellites that are launched must obtain approvals for command and
frequency assignments. For international approvals, the FCC and NTIA obtain
these approvals from the ITU. These regulations have been in place for a number
of years to cover the large number of non-government commercial space missions
that have been launched and put into orbit in the last 15 to 20 years. Any
commercial deep space mission that the company would perform would be subject to
these regulations. These regulations are well understood by the Company. At the
present time, the Company is not aware of any additional or unique government
regulations related to commercial deep space missions.
The Company is required to obtain permits, licenses, and other
authorizations under federal, state, local and foreign statutes, laws or
regulations or other governmental restrictions relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof. At the present time, we does not have a requirement to
obtain any special environmental licenses or permits.
The failure of the Company to comply with any of the above mentioned
regulations could have serious adverse effects.
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INTELLECTUAL PROPERTY AND RISK OF THIRD-PARTY CLAIMS OF INFRINGEMENT
The Company relies, in part, on patents, trade secrets and know-how to
develop and maintain its competitive position and technological advantage. We
intend to protect our intellectual property through a combination of license
agreements, trademark, service mark, copyright, trade secret laws and other
methods of restricting disclosure and transferring title. There is no guarantee
that such applications will be granted. We have and intend to continue entering
into confidentiality agreements with our employees, consultants and vendors;
entering into license agreements with third parties; and generally seeking to
control access to and distribution of our intellectual property.
COMPONENTS AND RAW MATERIAL
We purchase a significant percentage of our product components,
including structural assemblies, electronic equipment, and computer chips, from
third parties. We also occasionally obtain from the U.S. Government parts and
equipment that are used in the production of our products or in the provision of
our services. We have not experienced material difficulty in obtaining product
components or necessary parts and equipment and believe that alternative sources
of supply would be available, although increased costs and possible delays could
be incurred in securing alternative sources of supply.
INSURANCE MAY NOT COVER ALL RISKS
The Company may find it difficult to insure certain risks involved in
its operations. Insurance market conditions or factors outside the Company's
control at the time the insurance is purchased could cause premiums to be
significantly higher than current estimates. Additionally, the U.S. Department
of State has recently published regulations which could significantly affect the
ability of brokers and underwriters to place insurance for off-shore launches.
These factors could cause other terms to be significantly less favorable than
those currently available, may result in limits on amounts of coverage that the
Company can obtain, or may prevent the Company from obtaining insurance at all.
Furthermore, there is no assurance that proceeds from insurance that the Company
is able to purchase will be sufficient to cover losses.
RISKS ASSOCIATED WITH ACQUISITIONS
The Company has historically made strategic acquisitions of businesses
and routinely evaluates potential acquisition candidates that it believes would
enhance its business. The Company has also historically pursued strategic
alliances through joint ventures and routinely evaluates similar opportunities.
Such transactions commonly involve certain risks including, among others,
assimilating the acquired operations, technologies, and personnel and
maintaining appropriate standards, controls, procedures, and policies, entering
markets in which we have little or no direct prior experience, and potentially
losing key employees of acquired organizations. There can be no assurance that
we will be successful in overcoming these risks in connection with its recent
acquisitions or any future transactions.
RISKS ASSOCIATED WITH GROWTH
Failure to manage growth could adversely affect the Company's
condition. We may experience extended periods of very rapid growth. This growth
could place a significant strain on our management, operating, financial and
other resources. The Company's future performance will depend in part on its
ability to manage growth effectively. We must develop management information
systems, including operating, financial, and accounting systems and expand,
train, and manage employees to keep pace with growth. Our inability to manage
growth effectively could negatively affect results of operations and the ability
to meet obligations as they come due.
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RISKS RELATED TO SHARE OWNERSHIP
LACK OF DIVIDENDS
The Company has not paid dividends since its inception and does not
anticipate issuing them in the foreseeable future. There can be no guarantee or
assurance that dividends will be paid. In fact, our goal is to reinvest earnings
in the Company in an effort to complete development of our products, and to
increase sales and long-term profitability and value of the Company. In
addition, bank lines of credit which the Company may establish in the future or
other credit or borrowing arrangements may significantly impact our ability to
pay dividends to our shareholders.
SHAREHOLDER NON-PARTICIPATION
All decisions with respect to the management of the Company will be
made exclusively by the board of directors and officers of the Company. See
"Management." Although most of these individuals have substantial business
experience, there are no assurances that we will ultimately be successful. The
shareholders do not have the right or power to take part in the management of
the Company. Accordingly, no person should purchase unless he or she is willing
to entrust all aspects of the management of the Company to the board of
directors and officers.
CONTROL BY FOUNDING SHAREHOLDER AND KEY STAFF
The Company's founding shareholder has aggregate ownership interests of
the Company's stock sufficient to achieve practical control of the Company. In
view of the aggregate number of shares he owns, he will be able to exert
substantial influence upon the business and affairs of the Company. Such
concentration of ownership may also have the effect of delaying, deferring, or
preventing a change in control of the Company.
EFFECT OF EXERCISE OF OUTSTANDING WARRANTS AND OPTIONS.
We are obligated to issue 108,236 shares of Common Stock if all of our
outstanding warrants are exercised. In addition, as of the date of this Reoffer
Prospectus, we have outstanding stock options to purchase an aggregate of
1,643,147 shares of Common Stock under the Plans. The total number of shares
which could be issued upon the exercise of currently outstanding warrants and
options represent approximately 16% of our issued and outstanding shares of
Common Stock as of the date of this Reoffer Prospectus. Shares of Common Stock
issued as a result of the exercise of stock options will have a dilutive effect,
which could be substantial, on the currently and then outstanding shares of
Common Stock.
8
<PAGE>
MARKET RISKS
MARKET VOLATILITY
The market price of our Common Stock may be significantly affected by
factors including announcement of funding, contract, and launch dates by the
Company or its competitors; corporate partner affiliations; changes in the
regulatory environment; technical performance of our products; market acceptance
of our products and services; variations in our operating results; changes in
reports of securities analysts; and publicity regarding the industry or the
Company. In addition, the stock market in recent years has experienced broad
price and volume fluctuations that often have been unrelated to the operating
performance of particular companies, which may adversely affect the market price
of the shares of Common Stock.
RISK OF DELISTING
Our Common Stock is quoted on the Nasdaq OTC Bulletin Board. Under the
rules of the National Association of Securities Dealers, Inc., which monitors
the OTCBB, we are required to maintain our status as a reporting company under
the Securities Exchange Act of 1934. Failure to maintain those standards could
result in our Common Stock being delisted from the OTCBB. Any delisting of our
Common Stock may adversely affect your ability to dispose of, or to obtain
quotations as to the market value of, our Common Stock. In addition, any
delisting may cause our Common Stock to be subject to the "penny stock"
regulations of the Commission. Under such regulations, broker-dealers would be
required to, among other things, comply with disclosure and special suitability
determinations prior to the sale of our Common Stock. If our Common Stock
becomes subject to these regulations, the market price of our Common Stock and
your ability to dispose of it could be adversely affected.
EFFECT OF FUTURE SALES OF COMMON STOCK
As of the date of this Reoffer Prospectus, we have 13,949,993 shares of
Common Stock outstanding. Future sales of shares of Common Stock, or the
perception that such sales are going to occur, could cause the market price of
our Common Stock to drop significantly.
In addition, as of the date of this Reoffer Prospectus, we had
outstanding stock options and warrants to purchase an aggregate of 2,251,383
shares of Common Stock. Of such number, 2,143,147 represented shares of Common
Stock issuable upon the exercise of outstanding stock options, which shares are
being offered hereby, and 108,236 represented shares issuable upon the exercise
of outstanding warrants. In addition, we have available for grant under the
Stock Option Plan of 1999 and the Employee Stock Purchase Plan of 1999 options
to purchase a total of 3,541,551 Shares of Common Stock, which options may be
granted in the future from time to time to persons eligible to participate in
such plans. These options are also being registered under the Company's Form S-8
registration statement.
BLUE SKY REGISTRATION REQUIREMENTS
We believe that this Reoffer Prospectus, which is part of our
registration statement, may be used by the Selling Stockholders for the sale of
the Shares offered hereby for a period of nine months after the date on the
cover page hereof, provided that the information contained herein (including our
financial statements) is not more than 16 months old from the date of such
Reoffer Prospectus and we otherwise comply with applicable securities laws. We
cannot assure you, however, that our registration statement will remain
effective as we intend. The value of the Shares being offered by this Reoffer
Prospectus could deteriorate if a current Reoffer Prospectus covering the Shares
is not part of an effective registration statement, or if the Common Stock is
not registered for sale or exempt from registration in the jurisdictions
governing the sales made under this Reoffer Prospectus.
9
<PAGE>
FORWARD-LOOKING STATEMENTS
Certain statements contained in this Reoffer Prospectus, including,
without limitation, statements containing the words "believes," "anticipates,"
"may," "intends," "expects" and words of similar import,
constitute"forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors that may cause
our actual results, performance or achievements (or industry results,
performance or achievements) expressed or implied by such forward-looking
statements to be substantially different from those predicted. Such factors
might include, among others, the following:
- general economic and business conditions, both nationally and in
the regions in which we operate;
- competition;
- changes in business strategy or development plans;
- delays in the development or testing of our products;
- technological, manufacturing, quality control or other problems
which could delay the sale of our products;
- our inability to obtain appropriate licenses from third parties,
protect our trade secrets, operate without infringing upon the
proprietary rights of others and prevent others from infringing on
our proprietary rights;
- our inability to obtain sufficient financing to continue
operations; and
- changes in demand for products of our customers.
Certain of these factors are discussed in more detail elsewhere in this
Reoffer Prospectus, including, without limitation, under the caption "Risk
Factors."
We do not undertake any obligation to publicly update or revise any
forward-looking statements contained in this Reoffer Prospectus or incorporated
by reference, whether as a result of new information, future events or
otherwise. Because of these risks and uncertainties, the forward-looking events
and circumstances discussed in this Reoffer Prospectus might not transpire.
USE OF PROCEEDS
All of the Shares of Common Stock are being offered by the Selling
Stockholders. We will not receive any proceeds from the sale of the Shares by
the Selling Stockholders, but we will receive funds in connection with the
exercise of stock options relating to such Shares. The Company will use these
funds for working capital.
10
<PAGE>
SELLING STOCKHOLDERS
The Shares offered under this Reoffer Prospectus are being registered
for reoffers and resales by Selling Stockholders of the Company who have and may
in the future acquire such Shares under the Plans and the Lloyd Options. The
Selling Stockholders named in the following table may resell all, a portion, or
none of such Shares. There is no assurance that any of the Selling Stockholders
will sell any or all of the Shares offered by them hereunder.
Participants under the Plans who are deemed to be "affiliates" of the
Company who acquire Shares of Common Stock under the Plans may be added to the
Selling Stockholders listed below from time to time by use of a prospectus
supplement filed pursuant to Rule 424(b) under the Securities Act.
The following table sets forth certain information concerning the
Selling Stockholders as of the date of this Reoffer Prospectus, and as adjusted
to reflect the sale by the Selling Stockholders of the Shares offered hereby,
assuming all of the Shares offered hereby are sold:
<TABLE>
<CAPTION>
Percentage of Shares of Common
Stock Beneficially Owned
Number of Number of Shares Upon
Shares Exercise of Options to
Name Owned(1) be Offered(2)(3) Before Offering After Offering
---- -------- ---------------- --------------- --------------
<S> <C> <C> <C> <C>
Charles H. Lloyd(4) 1,200,000 8.6% 3.2%
Wesley T. Huntress(5) 8,868 6,647 * *
Jeffery Janicik 25,000 * *
Simon Dawson 3,000 * *
Katie R. McNeil-Longacre 1,000 * *
Garnet Parker 1,000 * *
Jonathan Wolf 200 2,000 * *
Terrance Yee 1,000 * *
William Clarke(6) 200 * *
Chris Grainger(6) 1,500 * *
Ann Marie Mora(6) 400 * *
Wendy C.Y Tse(6) 400 * *
Robert Davis(7) 1,000 * *
------------
</TABLE>
* Represents less than 1%.
(1) Represents shares beneficially owned by the named individual, including
shares that such person has the right to acquire within 60 days of the
date of this Reoffer Prospectus. Unless otherwise noted, all persons
referred to above have sole voting and sole investment power.
(2) Includes all outstanding options to purchase Shares of Common Stock
granted to the named individuals under the Plans and the Lloyd Options,
as the case may be, whether or not vested or exercisable within 60 days
of the date of this Reoffer Prospectus. Also includes all Shares issued
to such named individuals upon the exercise of options granted under
the Plans and the Lloyd Options, as the case may be. All of such Shares
are being registered hereunder. Does not include any shares that may be
acquirable under future grants of options under the Plans.
(3) Does not constitute a commitment to sell any or all of the stated
number of Shares of Common Stock. The number of Shares offered shall be
determined from time to time by each Selling Stockholder at his sole
discretion.
(4) Mr. Lloyd is the Chief Financial Officer and a Director of the Company.
(5) Mr. Huntress is a Director of the Company.
(6) Represents employees of the Company's wholly-owned subsidiary,
Integrated Space Systems, Inc.
(7) Pursuant to his employment agreement with the Company, Mr. Davis is
scheduled to receive additional options for 4,000 common shares over
the course of his first two years of employment.
11
<PAGE>
PLAN OF DISTRIBUTION
The sale of the Shares by the Selling Stockholders may be effected in
transactions on the Nasdaq OTC Bulletin Board, in negotiated transactions, or a
combination of such methods of sale. The Shares may be sold at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. In addition, the Shares of Common Stock covered
by this Reoffer Prospectus may also be sold pursuant to Rule 144 under the
Securities Act, rather than pursuant to this Reoffer Prospectus. Because the
Company does not satisfy the requirements for use of Form S-3 under the
Securities Act, the number of Shares to be sold by any Selling Stockholder (or
any person with whom such Selling Stockholders is acting in concert for the
purpose of selling securities of the Company) selling "control securities" or
"restricted securities" (as such terms are defined under the Securities Act),
whether pursuant to this Reoffer Prospectus or otherwise, may not exceed, during
any three month period, the amount specified by Rule144(e) under the Securities
Act.
The Selling Stockholders may effect such transactions by selling the
Shares directly to purchasers or through underwriters or broker-dealers who may
act as agents or principals. Such underwriters or broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or the purchasers of the Shares for whom such underwriters
or broker-dealers may act as agent or to whom they may sell as principal, or
both (which compensation as to a particular underwriter or broker-dealer may be
in excess of customary compensation).
We will not receive any of the proceeds from the sale of the Shares,
but we will receive funds in connection with the exercise of stock options
relating to such Shares. While all expenses of registration incurred in
connection with this offering are being borne by the Company, all brokerage
commissions and other expenses incurred by individual Selling Stockholders will
be borne by such Selling Stockholders.
Under the rules and regulations promulgated under the Exchange Act,
subject to certain exceptions, any person engaged in a distribution of
securities may not simultaneously engage in market making activities with
respect to such securities for a period of one business day (if such securities
have an average daily trading volume over a two month period of $100,000 and the
public float value of the issuer's equity securities is $25 million or more) or
five business days (in all other cases) prior to the day of the pricing of the
securities that are the subject of the distribution. Trading in "actively traded
securities" by persons other than the issuer (or selling stockholder) and
affiliates is exempt from such restrictions. "Actively traded securities" are
securities with an average daily trading volume of $1,000,000 issued by
companies with a public float of at least $150 million. In addition, and without
limiting the foregoing, the Selling Stockholders and any other person
participating in such distribution will be subject to other applicable
provisions of the Exchange Act, including without limitation, Rules 100 through
105 of Regulation M promulgated under the Exchange Act, which provisions may
limit the timing of purchases and sales of any of the Shares of Common Stock by
the Selling Stockholders and any other such person.
There can be no assurance that any of the Selling Stockholders will
sell any or all of the Shares of Common Stock offered by them hereunder.
An investor may only purchase the Shares of Common Stock being offered
hereby if such shares are qualified for sale or are exempt from registration
under the applicable securities laws of the state in which such prospective
purchaser resides. We have not registered or qualified the Common Stock under
any state securities laws and, unless the sale of such Shares to a particular
investor is exempt from registration or qualification under applicable state
securities laws, the sale of such Shares to an investor may not be effected
until such Shares have been registered or qualified with applicable state
securities authorities.
12
<PAGE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation contain a provision which, in
accordance with Colorado law, eliminates or limits the personal liability of
directors and officers of the Company for monetary damages for certain breaches
of their duty of care or other duty if he or she acted in good faith and in a
manner they believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his or her duty to the
Company unless otherwise determined by the court before which such action was
brought. The Company believes this provision is essential to maintain and
improve its ability to attract and retain competent directors. These
indemnification provisions do not reduce the exposure of directors and officers
to liability under federal and state securities laws, nor do they limit the
shareholders' ability to obtain injunctive relief or other equitable remedies
for a violation of a director's or officer's duty to the Company or its
shareholders, although such equitable remedies may not be an effective remedy
incertain circumstances.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company is informed that it is
the opinion of the Securities and Exchange Commission that such indemnification
is against public policy and therefore unenforceable.
LEGAL MATTERS
The validity of the Shares of Common Stock offered hereby will be
passed upon for the Company by Popov & McCullogh LLP, La Jolla, California.
EXPERTS
The financial statements incorporated by reference in this Prospectus
have been audited by Nation Smith Hermes Diamond, Accountants and Consultants,
APC, independent certified public accountants, to the extent and for the period
set forth in their report (which contains an explanatory paragraph regarding the
Company's ability to continue as a going concern), incorporated herein by
reference, and are incorporated herein in reliance upon such report given upon
the authority of said firm as experts in auditing and accounting.
13
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by SpaceDev, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(A) The Company's registration statement on Form 10-SB (File
No.000-28947) filed pursuant to Rule 12(g) under the Securities Exchange Act of
1934 that contains audited financial statements for the Company's latest fiscal
year for which such statements have been filed.
(B) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Company's document
referred to in (a) above.
All reports and documents subsequently filed by it pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 shall be deemed to be
incorporated by reference in the registration statement and to be part thereof
from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Popov & McCullogh, LLP, La Jolla, California. As
of the date of this Prospectus, a member of Popov & McCullogh own 70,000 shares
of the Company's restricted Common Stock.
Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation contain a provision which, in
accordance with Colorado law, eliminates or limits the personal liability of
directors and officers of the Company for monetary damages for certain breaches
of their duty of care or other duty if he or she acted in good faith and in a
manner they believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his or her duty to the
Company unless otherwise determined by the court before which such action was
brought. The Company believes this provision is essential to maintain and
improve its ability to attract and retain competent directors. These
indemnification provisions do not reduce the exposure of directors and officers
to liability under federal and state securities laws, nor do they limit the
shareholders' ability to obtain injunctive relief or other equitable remedies
for a violation of a director's or officer's duty to the Company or its
shareholders, although such equitable remedies may not be an effective remedy
incertain circumstances.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company is informed that it is
the opinion of the Securities and Exchange Commission that such indemnification
is against public policy and therefore unenforceable.
II-1
<PAGE>
Item 7. Exemption from Registration Claim
The Company has granted options to purchase a total of 1,200,000 shares
of common stock to its Chief Financial Officer, Charles H. Lloyd, pursuant to
the terms of his employment agreement with the Company's wholly-owned
subsidiary, Integrated Space Systems (ISS), pursuant to the exemption from
registration provided in Rule 701 of the Securities Act of 1933. The exercise
price for each of these options is the closing bid price of the Company's common
stock on the date of grant. The shares underlying these options are included in
this registration statement for the purpose of allowing Mr. Lloyd to sell the
shares upon exercise of the options, subject to the restrictions of Section
16(b) of the Securities Exchange Act of 1934.
The Company has granted options to purchase a total of 400,000 shares
of common stock to its Chief Operating Officer, Stanley W. Dubyn, pursuant to
the terms of his employment agreement with the Company under Rule 701 of the
Securities Act of 1933. The exercise price for each of these options is the
closing bid price of the Company's common stock on the date of grant. The shares
underlying these options are included in this registration statement for the
purpose of allowing Mr. Dubyn to sell the shares upon exercise of the options,
subject to the restrictions of Section 16(b) of the Securities Exchange Act of
1934.
The Company has granted options to purchase common stock to its outside
director, Wesley T. Huntress pursuant to Rule 701 of the Securities Act of 1933
as follows: an option to purchase 2,222 shares of common stock at $2.25 per
share was granted on September 20, 1999, and an option to purchase 4,425 shares
of common stock at $1.13 per share was granted on January 1, 2000. These options
were exercisable on the date of grant. All of these options were issued pursuant
to the 1999 Stock Option Plan and are non-qualified stock options under Section
422 of the Internal Revenue Code. The exercise price of each of these options is
the closing bid price of the Company's common stock on the date of grant.
The Company has granted options to purchase an additional 36,500 of
common stock to certain of its employees, under the Stock Option Plan of 1999,
as bonus and /or incentive compensation. Each of these options was granted under
Rule 701 at the average closing bid price for the five (5) days immediately
preceding the date of grant.
Item 8. Exhibits
------- --------
No. Exhibit
5.1 Opinion of Popov & McCullogh, LLP
23.1 Consent of Nation Smith Hermes Diamond Accountants & Consultants, APC
23.2 Consent of Popov & McCullogh, LLP. Reference is made to Exhibit 5.1
99.1* The Company's Stock Option Plan of 1999
99.2* Form of Incentive or Non-statutory Stock Option Grant Notice under the
Stock Option Plan of 1999
99.3 First Amendment to 1999 Stock Option Plan
99.4* The Company's Employee Stock Purchase Plan of 1999
* Documents incorporated by reference from the Company's Registration
Statement on Form 10-SB, as amended (File No. 000-28947) filed with the
Securities and Exchange Commission on April 28, 2000.
II-2
<PAGE>
Item 9. Undertakings
1. The undersigned registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(I) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(II) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (230.424(b) of this chapter)
if, in the aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(III) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(I) and (a)(II) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(B) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. In so far as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the Poway, State of California, on September 28, 2000.
SpaceDev, Inc.
By: /s/ James W. Benson
------------------------------------
James W. Benson
Chairman of the Board of Directors and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James W. Benson Chairman of Board of September 28, 2000
------------------------------- Directors and Chief Executive
James W. Benson Officer
/s/ Charles H. Lloyd Chief Financial Officer and September 28, 2000
------------------------------- Director
Charles H. Lloyd
/s/ Stanley W. Dubyn Chief Operating Officer, September 28, 2000
------------------------------- President and Director
Stanley W. Dubyn
/s/ Wesley T. Huntress Director September 28, 2000
-------------------------------
Wesley T. Huntress
/s/ Curt D. Blake Director September 28, 2000
-------------------------------
Curt D. Blake
</TABLE>
<PAGE>
EXHIBIT INDEX
Exh. Description Page
---- ----------- ----
5.1 Opinion of Popov & McCullogh, LLP....................................
23.1 Consent of Nation Smith Hermes Diamond Accountants & Consultants, APC
23.2 Consent of Popov & McCullogh, LLP
Reference is made to Exhibit 5.1
99.1* The Company's Stock Option Plan of 1999
99.2* Form of Incentive and Nonstatutory Stock Option Grant Notice under the
Stock Option Plan of 1999
99.3 First Amendment to 1999 Stock Option Plan
99.4* The Company's Employee Stock Purchase Plan of 1999
* Documents filed with the Company's Form 10-SB (File No. 000-28947).
