EXHIBIT 99.4
PROJECT SPIRIT
FORM OF STANDSTILL AND LOCK-UP AGREEMENT
BY AND AMONG
SPACEDEV, INC.,
A COLORADO CORPORATION; AND
_____________, A SHAREHOLDER OF
STARSYS RESEARCH CORPORATIONRECEIVING MORE THAN AN AGGREGATE OF 50,000 SHARES OF
PARENT COMMON STOCK IN CONNECTION WITH THE CLOSING AND THE FIRST PERFORMANCE
PERIOD.
____________ ___, 2006
PAGE
FORM OF STANDSTILL AND LOCK-UP AGREEMENT
THIS STANDSTILL AND LOCK-UP AGREEMENT (this "AGREEMENT") is made and
entered into as of ___________ ____, 2006, by and among (i) SpaceDev, Inc., a
Colorado corporation (together with its successors and permitted assigns,
"PARENT"), and (ii) the undersigned shareholder or potential shareholder of the
Company (each, together with its successors and permitted assigns, a
"SHAREHOLDER"). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement (as defined in the
recitals below).
R E C I T A L S
---------------
WHEREAS, Parent, its wholly-owned subsidiary, Monoceros Acquisition Corp.,
a Colorado corporation ("MERGER SUB"), Starsys Research Corporation, a Colorado
corporation (together with its successors, the "COMPANY"), and certain other
parties made and entered into that certain Agreement and Plan of Merger and
Reorganization as of October 24, 2005 (as amended, modified or supplemented from
time to time, the "MERGER AGREEMENT");
WHEREAS, the Merger Agreement provides for the merger of the Company with
and into Merger Sub, with Merger Sub as the surviving company and a wholly-owned
subsidiary of Parent (the "MERGER");
WHEREAS, pursuant to the Merger, all outstanding capital stock of the
Company may be exchanged for cash and shares of common stock, par value $.001,
of Parent (the "PARENT COMMON STOCK"), subject to the terms and conditions set
forth in the Merger Agreement;
WHEREAS, the Shareholder is the beneficial owner of the number of shares of
common stock, par value $.001, of the Company (the "COMPANY COMMON STOCK") as is
indicated on such Shareholder's signature page to this Agreement;
WHEREAS, if the Merger is consummated, the Shareholder may receive shares
of Parent Common Stock in connection with the Merger pursuant to the Merger
Agreement or the Related Agreements;
WHEREAS, the Shareholder desires to induce Parent to consummate the Merger;
and WHEREAS, the execution and delivery of this Agreement by the Shareholder is
a condition precedent to Parent's and Merger Sub's obligations to consummate the
Merger under the Merger Agreement and constitutes a material inducement for
Parent and Merger Sub therefor.
A G R E E M E N T
-----------------
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. TRANSFER RESTRICTIONS.
1.1 Transfer Restrictions. In addition to and not in substitution of the
transfer restrictions for the Parent Common Stock set forth in the Merger
Agreement and under applicable federal and state securities and "blue sky" Laws,
PAGE 2
including the Securities Act, if any, each Shareholder hereby covenants and
agrees not to, directly or indirectly, sell, offer, contract to sell, pledge,
transfer the economic risk of ownership, enter into any Commitment for, or make
any short sale, pledge or otherwise Transfer, any shares of Parent Common Stock
(whether now owned or hereafter acquired) or any Commitments or Securities
convertible into or exchangeable or exercisable for any other rights to purchase
or acquire Parent Common Stock (collectively, except for any Exempt Parent
Securities (as defined below), the "PARENT SECURITIES"), for a period of 270
days from the Closing Date (the "LOCK-UP PERIOD"), except (i) involuntarily
pursuant to bequest, the laws of intestate succession or the order of a court in
connection with a settlement of property rights incident to divorce, (ii) with
the prior written consent of Parent, such consent to be granted or withheld in
Parent's sole and absolute discretion, and (iii) with respect to any
Shareholders who are not entitled to receive 50,000 shares or more of Parent
Common Stock as closing consideration at the closing of the Merger, and only
such Shareholders, such closing shares (the "EXEMPT PARENT SECURITIES") (it
being understood and agreed that no shares of Parent Common Stock received by
any such Shareholder as performance consideration under the Merger Agreement in
respect of fiscal year 2005 shall be subject to this limited exception). Without
limiting the generality of the foregoing, the Shareholder shall not engage in
any hedging or other transaction which is designed to or reasonably expected to
lead to or result in a Transfer of Parent Securities, or the economic risk of
ownership thereof, during the Lock-Up Period, even if such Parent Securities
would be disposed of by someone other than such holder or such beneficial owner,
including (A) entering into any Commitment with respect to any Parent Securities
or with respect to any Security (other than a broad-based market basket or
index) that included, relates to or derives any significant part of its value
from shares of Parent Securities, and (B) any short sale (whether or not against
the box) or any purchase, sale or grant of any right. Any attempted sale,
assignment, pledge or other Transfer not in compliance with this Section 1 shall
be null and void and of no force or effect ab initio.
1.2 Legends. Each Shareholder acknowledges and agrees that certificates
evidencing the shares of Parent Common Stock, other than the Exempt Parent
Securities, which are issued or to be issued to such Shareholder prior to the
expiration of the Lock-Up Period may contain an appropriate restricted legend
setting forth these restrictions, including the following legend: THE SHARES
EVIDENCED BY THIS CERTIFICATE MAY ONLY BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED IN ACCORDANCE WITH THE TERMS OF THAT CERTAIN STANDSTILL
AND LOCK-UP AGREEMENT, MADE AND ENTERED INTO BY AND AMONG SPACEDEV, INC. AND THE
RECORD HOLDER HEREOF. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY ANY REGISTERED
HOLDER HEREOF UPON WRITTEN REQUEST TO THE PRINCIPAL OFFICES OF SPACEDEV, INC.
The Shareholder shall be entitled to have such restrictive legend removed from
any certificates evidencing the shares of Parent Common Stock or other Parent
Securities subject hereto upon expiration of the Lock-Up Period.
1.3 No Registration of Transfers. Except for Exempt Parent Securities,
Parent shall not register the Transfer of any shares of Parent Common Stock, or
any Commitments therefor, of any Shareholder on the stock record books, records
or ledgers of the Company, at any time prior to the expiration of the Lock-Up
Period. Parent may, in it sole discretion, issue stop-transfer instructions to
each transfer agent for the Parent Common Stock, instructing each such transfer
agent not to register any Transfer of any such shares prior to the expiration of
the Lock-Up Period, except in strict compliance with the transfer restrictions
hereof.
PAGE 3
2. STANDSTILL. Each Shareholder agrees that, for a period commencing on the
date of this Agreement and ending three years after the Closing Date (the
"STANDSTILL PERIOD"), without the prior written consent of Parent, it shall not:
2.1 in any manner acquire, offer, agree or propose to acquire, or announce
or disclose any intention to acquire, offer, agree or propose to acquire,
directly or indirectly, by purchase or otherwise (other than pursuant to a stock
split, stock dividend or other pro rata distribution effected by Parent to
holders of any class of its outstanding securities with the power to vote with
respect to the election of directors generally ("VOTING SECURITIES")), any
Voting Securities, or any Commitments to acquire any Voting Securities, other
than Voting Securities issued pursuant to the Merger Agreement, if, immediately
after any such acquisition, the Shareholder would "beneficially own" (as such
term is defined in Rule 13d-3 promulgated under the Exchange Act), in the
aggregate, Voting Securities representing more than 5% of the outstanding Voting
Securities of such class;
2.2 make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" (as such terms are defined in Rule 14a-1 promulgated
under the Exchange Act) to vote any Voting Securities, seek to advise, encourage
or influence any Person with respect to the voting of any Voting Securities,
initiate, propose or "solicit" (as such term is defined in Rule 14a-1
promulgated under the Exchange Act) holders of Voting Securities for the
approval of any shareholder proposal, initiate or propose any shareholder
proposal, or induce or attempt to induce any other Person to initiate any
shareholder proposal; provided that the Shareholder shall not be deemed to have
breached this Section 2.2 by reason of (i) membership on the Board of Directors
of Parent, (ii) voting such Shareholder's Voting Securities in accordance with
this Section 2, or (iii) such Shareholder's participation in and consistent with
Parent's solicitation of proxies in connection with any annual or special
meeting of the shareholders of Parent;
2.3 make any statement or proposal, whether written or oral, to the Board
of Directors of Parent, or to any director or officer of Parent, or otherwise
make any announcement or proposal, or disclose any intention to propose to enter
into, directly or indirectly, any merger, business combination or similar
transaction, or material Transfer of assets, liquidation or other extraordinary
corporate transaction, with or involving Parent or any of its Affiliates;
2.4 form, join or in any way participate in a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act), or otherwise act in concert with any
Person, with respect to any securities of Parent (i) for the purpose of
circumventing the provisions of this Section 2, or (ii) for the purpose of
holding, acquiring, voting or Transferring any Voting Securities;
2.5 deposit any Voting Securities into a voting trust or subject any Voting
Securities to any Contract, arrangement or understanding with respect to the
voting of any Voting Securities;
2.6 otherwise act, alone or in concert with others (including by providing
financing, advice or other assistance to another Person), to seek or offer to
exercise any control or influence, in any manner, over the management, Board of
Directors or policies of Parent or its Affiliates, other than in a capacity as a
director or officer of Parent, or by voting its Voting Securities in accordance
with this Agreement;
2.7 knowingly Transfer any interest in any Voting Securities knowingly made
to any Person or member of any "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) if, after giving effect to such Transfer, such Person or
"group" would "beneficially own" (as such term is defined in Rule 13d-3
promulgated under the Exchange Act) or have the right to acquire, in the
aggregate, Voting Securities representing more than 5% of the outstanding Voting
Securities of any class;
PAGE 4
2.8 make a public request to Parent (or its Representatives or
shareholders) to amend or waive any provisions of this Agreement, including any
public request to permit the Shareholder or any other Person to take any action
proscribed by this Section 2;
2.9 participate in any action by written consent of the shareholders of
Parent (except upon the unanimous recommendation of the Board of Directors of
Parent);
2.10 take any action, or request Parent or its Representatives, directly or
indirectly, to take any action, which might require Parent or any of its
Affiliates to make a public announcement regarding the possibility of a (i) the
acquisition of Voting Securities by the Shareholder of any of its Affiliates,
(ii) a business combination, merger, sale of Voting Securities or similar
transaction involving the Shareholder or any of its Affiliates, on the one hand,
and Parent or any of its Affiliates, on the other, or (iii) the Transfer to the
Shareholder or any of its Affiliates of all or any material portion of the
property or assets of Parent or any of its Affiliates; or, advise, assist or
encourage any other Person in connection with, or make any public statement
regarding, any of the foregoing; or
2.11 disclose any intention, plan or arrangement inconsistent with the
foregoing.
3. MISCELLANEOUS
3.1 Construction. The rules of construction specified in Section 11.15
(Construction) of the Merger Agreement are hereby incorporated by reference
herein and shall apply to this Agreement mutatis mutandis, as if expressly set
forth herein.
3.2 Titles and Headings. The section and paragraph titles and headings
contained herein are inserted purely as a matter of convenience and for ease of
reference and shall be disregarded for all other purposes, including the
construction, interpretation or enforcement of this Agreement or any of its
terms or provisions.
3.3 Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto. Each of Parent and the Shareholders hereby acknowledges,
represents and warrants that (i) it has read and fully understood this Agreement
and the implications and consequences thereof; (ii) it has been represented in
the preparation, negotiation, and execution of this Agreement by legal counsel
of its own choice, or it has made a voluntary and informed decision to decline
to seek such counsel; and (iii) it is fully aware of the legal and binding
effect of this Agreement.
3.4 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; provided
that if any provision of this Agreement, as applied to any party or to any
circumstance, is adjudged by a court, tribunal or other governmental body,
arbitrator or mediator not to be enforceable in accordance with its terms, the
parties agree that such governmental body, arbitrator or mediator making such
determination shall have the power to modify the provision in a manner
consistent with its objectives such that it is enforceable, and to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced.
3.5 Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns.
PAGE 5
3.6 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by each of the parties hereto.
3.7 No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, or any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance. No waiver by any party of any default, misrepresentation or breach
hereunder, whether intentional or not, shall be effective unless in writing and
signed by the party against whom such waiver is sought to be enforced, and no
such waiver shall be deemed to extend to any prior or subsequent default,
misrepresentation or breach hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence.
3.8 Specific Performance; Injunctive Relief. Each of the parties hereto
acknowledges and agrees that any breach or non-performance of, or default under,
any of the terms and provisions hereof would cause substantial and irreparable
damage to the other parties hereto, and that money damages would be an
inadequate remedy therefor. Accordingly, each of the parties hereto agrees that
each of them shall be entitled to seek equitable relief, including specific
performance and injunctive relief, in the event of any such breach,
non-performance or default in any Action instituted in any court of the United
States or any state having competent jurisdiction, or before any arbitrator, in
addition to any other remedy to which such party may be entitled, at law or in
equity.
3.9 Notices. All notices, requests, instructions or other documents to be
given under this Agreement shall be in writing and shall be deemed given, (i)
five business days following sending by registered or certified mail, postage
prepaid, (ii) when sent if sent by facsimile; provided, however, that the
facsimile is promptly confirmed by telephone confirmation thereof, (iii) when
delivered, if delivered personally to the intended recipient, and (iv) one
business day following sending by overnight delivery via a national courier
service, and in each case, addressed to a party (1) with respect to Parent, at
the address set forth for such party in Section 11.4 (Notices) of the Merger
Agreement, and (2) with respect to the Shareholder, at the address set forth on
the signature pages hereof, or in each case to such other address or fax number
as the party to whom the notice, request, instruction or other document is given
may have previously furnished to the other parties in writing in the manner set
forth in this Section 3.9.
3.10 Governing Law. This Agreement and the performance of the transactions
and obligations of the parties hereunder shall be governed by and construed in
accordance with the laws of the State of Colorado applicable to contracts
negotiated, executed and to be performed entirely within such State.
3.11 Entire Agreement. The parties hereby acknowledge and re-affirm the
terms and provisions of Section 11.1 of the Merger Agreement.
3.12 Third-Party Beneficiaries. This Agreement is made solely for the
benefit of the parties to this Agreement and their respective permitted
successors and assigns, and no other Person shall have or acquire any right or
remedy by virtue hereof except as otherwise expressly provided herein.
3.13 Jurisdiction; No Jury Trial; Service of Process. The terms and
provisions of Section 11.6 (Submission to Jurisdiction; No Jury Trial; Service
of Process) of the Merger Agreement are hereby incorporated by reference herein
and shall apply to this Agreement mutatis mutandis, as if expressly set forth
herein.
PAGE 6
3.14 Counterparts. This Agreement may be executed in two or more original
or facsimile counterparts, each of which shall be deemed an original but all of
which together shall constitute but one and the same instrument.
3.15 Facsimile Execution. A facsimile, telecopy or other reproduction of
this Agreement may be executed by one or more parties hereto, and an executed
copy of this Agreement may be delivered by one or more parties hereto by
facsimile or similar electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK ]
PAGE 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
SPACEDEV, INC.
By:
-------------------------------
Name:
Title:
SHAREHOLDER:
----------------------------------
Name:
Print Address and Facsimile Number:
Shares held:
PAGE 8
