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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------------
SPACEHAB, INCORPORATED
(Exact name of registrant as specified in its charter)
WASHINGTON 1595 SPRING HILL ROAD, SUITE 360 91-1273737
---------- VIENNA, VIRGINIA 22182 ----------
-----------------------
(State or other (Address of Principal Executive (I.R.S.
jurisdiction of Offices) Employer
incorporation or (Zip Code) Identification
organization) No.)
1997 Employee Stock Purchase Plan
---------------------------------
(Full Title of the Plan)
William S. Dawson
General Counsel & Corporate Secretary
SPACEHAB, Incorporated
1595 Spring Hill Road, Suite 360
Vienna, Virginia 22182
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 703-821-3000
--------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
securities registered maximum maximum registration
to be offering aggregate fee
registered price per offering price
share (1) (1)
- ----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,500,000 shares $10.4375 $15,656,250 $4,744.32
- ----------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 457(h), these prices are estimated solely for
the purpose of calculating the registration fee and are based upon the
average of the high and low sales prices of Registrant's common stock on
the NASDAQ National Market on September 23, 1997.
There are also registered hereunder such additional indeterminate
number of shares as may be issued as a result of the antidilution
provisions of the 1997 Employee Stock Purchase Plan.
<PAGE> 2
PART I
ITEM 1. PLAN INFORMATION.
Not included pursuant to Form S-8 instructions.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not included pursuant to Form S-8 instructions.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Annual Report of the Company on Form 10-K for the fiscal year
ended June 30, 1997 and the description of the Company's common stock
("Common Stock") contained in the Company's registration statement on Form
8-A under the Securities Exchange Act of 1934, as amended, (the "Exchange
Act") with respect to that stock filed with the Securities and Exchange
Commission, including any amendments or reports filed for the purpose of
updating that description, are incorporated in this Registration Statement by
reference. All documents filed by the Company pursuant to Section 13(a),
13(c), 14(c) or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this
Registration Statement from the date of filing of those documents with the
Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of September 15, 1997, Mr. William S. Dawson beneficially
owned 0 shares of Common Stock. Mr. Dawson also has the right to purchase an
additional 26,292 shares of Common Stock upon the exercise of stock options
held by him.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Sections 23B.08.510 through 23B.08.590 of the Washington
Business Corporation Act (the "Washington Business Act") gives Washington
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in
the defense of any lawsuit to which they are made parties by reason of being
or having been such directors or officers, subject to specified conditions
and exclusions; gives a director or officer who successfully defends an
action the right to be so indemnified; and authorizes a company to buy
director' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled
under any by-laws, agreement, vote of stockholders or otherwise.
(b) Article Nine of the Amended and Restated Articles of
Incorporation of the Company requires, and Article IX of the Bylaws of the
Company provides for, indemnification of directors, officers, employees and
agents to the full extent permitted by law.
(c) In accordance with Section 23B.08.320 of the Washington
Business Act, the Company's Amended and Restated Articles of Incorporation
provides that directors shall not be personally liable for monetary damages
for breaches of their fiduciary duty as directors except for (1) acts or
omissions that involve intentional misconduct by a director or a knowing
violation of law by a director, (2) conduct violating Section 23B.08.310 of
the Washington Business Act of the Law (unlawful distributions) or (3) any
transaction from which the director will
2
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personally receive a benefit in money, property, or services to which the
director is not legally entitled.
(d) The Company has entered into indemnification agreements
with each of its directors which provides for indemnification under certain
circumstances.
(e) The Company maintains a directors' and officers' insurance
policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the
Company.
4.2 Amended and Restated By-Laws of the Company.
4.3 1997 Employee Stock Purchase Plan.
5.1 Opinion of William S. Dawson, General Counsel and
Secretary of the Company, as to legality of the
securities being registered.
23.1 Consent of KPMG Peat Marwick LLP, Independent
Accountants
23.2 Consent of William S. Dawson, General Counsel and
Secretary of the Company (contained in Exhibit 5.1).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) 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 of 1933;
(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) 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)(1)(i) and (a)(1)(ii) do
not apply if the registration statement
3
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is on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Town of Vienna, State of Virginia, on
September 30, 1997.
SPACEHAB, INCORPORATED
By /s/ Dr. Shelley A. Harrison
---------------------------
Dr. Shelley A. Harrison
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
/s/ Dr. Shelley A. Harrison Chairman of the Board and September 30, 1997
- --------------------------- Chief Executive Officer
(Dr. Shelley A. Harrison) (principal executive
officer)
/s/ Margaret E. Grayson Vice President of September 30, 1997
- --------------------------- Finance, CFO, Treasurer
(Margaret E. Grayson) and Assistant Secretary
(principal financial
officer and principal
accounting officer)
Director
- ---------------------------
(Hironori Aihara)
/s/ Robert A. Citron Director September 30, 1997
- ---------------------------
(Robert A. Citron)
/s/ Dr. Edward E. David,Jr. Director September 30, 1997
- ---------------------------
(Dr. Edward E. David, Jr.)
- ---------------------------- Director
(Dr. Shi H. Huang)
/s/ Chester M. Lee Director September 30, 1997
- ---------------------------
(Chester M. Lee)
/s/ Gordon S. Macklin Director September 30, 1997
- ---------------------------
(Gordon S. Macklin)
/s/ Dr. Brad M. Meslin Director September 30, 1997
- ---------------------------
(Dr. Brad M. Meslin)
/s/ Dr. Udo Pollvogt
- ---------------------------- Director September 30, 1997
(Dr. Udo Pollvogt)
/s/ Alvin L. Reeser
- ---------------------------- Director September 30, 1997
(Alvin L. Reeser)
5
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/s/ James R. Thompson Director September 30, 1997
- ---------------------------
(James R. Thompson)
- ---------------------------- Director
(Prof. Ernesto Vallerani)
6
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INDEX TO EXHIBITS
The following documents are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT LOCATION
<S> <C> <C>
4.1 Amended and Restated *
Articles of Incorporation.
4.2 Amended and Restated *
By-Laws.
4.3 1997 Employee Stock Attached.
Purchase Plan.
5.1 Opinion of William S. Attached.
Dawson, General Counsel
and Secretary of the
Company, as to legality
of the securities being
registered.
23.1 Consent of KPMG Peat Attached.
Marwick LLP, Independent
Accountants.
23.2 Consent of William S.
Dawson, General Counsel
and Secretary of the
Company (contained in
Exhibit 5.1).
</TABLE>
- -----------------------
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 33-97812) and all amendments thereto, originally filed
with the Securities and Exchange Commission on October 5, 1995.
7
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4.3
SPACEHAB, INCORPORATED
1997 EMPLOYEE STOCK PURCHASE PLAN
4.3-1
<PAGE> 2
ARTICLE I.
PURPOSE AND COMMENCEMENT
1.01 PURPOSE. The purpose of the Plan is to provide the
employees of SPACEHAB, Incorporated, a Washington corporation (the "Company")
and its Subsidiaries with added incentive to continue in their employment and
to encourage increased efforts to promote the best interests of the Company
by permitting eligible employees to purchase shares of Common Stock of the
Company at prices less than the current market price thereof. The Plan is
intended to qualify as an employee stock purchase plan under Section 423 of
the Code and shall be interpreted and construed in accordance with such
purpose.
1.02 COMMENCEMENT. The Plan shall become effective on October
1, 1997, provided, however, that, in no event, shall the Plan become
effective unless within twelve months of the date of its adoption by the
Board of Directors it has been approved by the affirmative vote of a majority
of the issued and outstanding shares of the Company's securities entitled to
vote on such matters at a duly called meeting of the shareholders of the
Company.
ARTICLE II.
DEFINITIONS
2.01 DEFINITIONS. As used in the Plan, the following terms and
phrases shall have the following meanings:
(a) "Board of Directors" shall mean the Board of Directors of
the Company.
(b) "Closing Market Price" shall mean (i) if the Common Stock
is traded on a national securities exchange, the Closing Market Price shall
be the closing price reported by the applicable composite transactions report
on the date of any determination or, if the Common Stock is not traded on
such date, the closing price so reported on the next following date on which
the Common Stock is traded on such exchange, or (ii) if the foregoing
provision is inapplicable, the Closing Market Price shall be determined by
the Committee in good faith on such basis as it deems appropriate.
(c) "Code" shall mean the Internal Revenue Code as of 1986, as
amended.
(d) "Commencement Date" shall mean the first day of a Plan
Quarter.
(e) "Committee" shall mean the Compensation Committee of the
Board of Directors, or such other committee of the Board of Directors
designated by it for purposes of administering the Plan.
(f) "Common Stock" means the common stock of the Company.
(g) "Company" shall mean SPACEHAB, Incorporated, a Washington
corporation.
(h) "Contribution Account" shall mean the account established
on behalf of a Participant pursuant to Article IV hereof to which shall be
credited his or her Participant Contributions.
(i) "Contribution Rate" shall be a percentage of a
Participant's Covered Compensation during each payroll period designated by
each Participant to be contributed by regular payroll deductions to his or
her Contribution Account as set forth in Section 3.03 hereof.
4.3-2
<PAGE> 3
(j) "Covered Compensation" shall mean the total cash
compensation received by an Employee from a Sponsoring Employer, before tax
withholdings and other deductions, including base compensation, overtime,
shift or other compensatory premiums, payments in substitution of base
compensation such as vacation, holiday and sick pay, and including all cash
bonus compensation, but not including short or long-term disability payments.
(k) "Employee" shall mean each employee of a Sponsoring
Employer whose customary employment is at least twenty (20) hours a week and
more than five months in a calendar year. For purposes of the Plan,
"employment" shall be determined in accordance with the provisions of Section
1.421-7(h) of the Treasury Regulations (or any successor regulations).
(l) "Participant" shall mean any Employee of a Sponsoring
Employer who has met the conditions and provisions for becoming a Participant
set forth in Article III hereof.
(m) "Participant Contributions" shall be the aggregate dollars
actually contributed by each Participant to his or her Contribution Account.
(n) "Permanent Disability" shall mean an illness, injury or
other physical or mental condition continuing for at least 180 consecutive
days which results in an Employee's inability to provide in all material
respects the duties theretofore performed in his or her capacity as an
Employee of a Sponsoring Employer.
(o) "Plan" shall mean the SPACEHAB, Incorporated 1997 Employee
Stock Purchase Plan as set forth herein, as it may be amended from time to
time.
(p) "Plan Quarter" shall mean each calendar quarter. The
first Plan Quarter shall be the Plan Quarter commencing on October 1, 1997
and ending on December 31, 1997 or such later Plan Quarter as may be
determined by the Committee.
(q) "Purchase Date" shall mean the last business day of a Plan
Quarter on which the Common Stock publicly trades.
(r) "Purchase Price" shall mean the purchase price for a share
of Common Stock to be paid by a Participant on a Purchase Date, as determined
under Section 4.02 hereof.
(s) "Request for Participation" shall mean such form as shall
be approved by the Committee for distribution to Employees in connection with
participation in the Plan.
(t) "Sponsoring Employers" shall mean the Company and each
Subsidiary that has been designated by the Committee as a Sponsoring Employer
under the Plan.
(u) "Subsidiary" shall mean a subsidiary of the Company which
is treated as a subsidiary corporation under Section 424(f) of the Code.
ARTICLE III.
ELIGIBILITY AND PARTICIPATION
3.01 ELIGIBILITY. Each Employee shall become eligible to be a
Participant of the Plan and may participate therein as of the Commencement
Date coincident with or next following the date he or she becomes an Employee.
4.3-3
<PAGE> 4
3.02 LIMITATIONS. Notwithstanding anything to the contrary
contained in the Plan, no right to purchase Common Stock shall accrue under
the Plan in favor of any person who is not an Employee eligible to
participate in the Plan under Section 3.01 hereof, and no Employee shall
acquire the right to purchase shares of Common Stock if (i) immediately after
receiving such right to purchase Common Stock, such Employee would own 5% or
more of the total combined voting power or value of all classes of stock of
the Company or any Subsidiary, taking into account in determining stock
ownership any stock attributable to such Employee under Section 424(d) of the
Code, or (ii) which would permit such Employee's right to purchase stock
under all employee stock purchase plans (to which Section 423 of the Code
applies) of the Company and its Subsidiaries, as those plans are in effect
from time to time, to accrue at a rate which exceeds $25,000 of fair market
value of such stock (as determined as each Commencement Date) for each
calendar year, all as specified in the manner provided by Section 423(b)(8)
of the Code, or (iii) which would permit such Employee the right to purchase
more than 10,000 shares (or such other number as may be determined in advance
for any Plan Quarter by the Committee) of Common Stock in any Plan Quarter.
3.03 PARTICIPATION.
(a) Each Employee eligible to be a Participant and participate
in the Plan shall be furnished a summary of the Plan and a Request for
Participation by such Employee's Sponsoring Employer. If an Employee elects
to participate hereunder, such Employee shall complete such form and file it
with his or her Sponsoring Employer not later than 15 days prior to a
Commencement Date of a Plan Quarter. The completed Request for Participation
shall indicate the Participant Contribution Rate authorized by the
Participant. If any Employee does not elect to participate in the Plan
during any given Plan Quarter, such Employee may elect to participate on any
future Commencement Date so long as he or she continues to be an eligible
Employee.
(b) On his or her Request for Participation, an Employee must
authorize his or her Sponsoring Employer to deduct through a payroll
deduction the amount of such Employee's Participant Contribution. The
payroll deduction specified in a Request for Participation for each payroll
period shall be at a Participant Contribution Rate no less than 1% and no
more than 10% of such Employee's Covered Compensation during such payroll
period paid to him or her by his or her Sponsoring Employer. Such deductions
shall begin as of the first pay period occurring after the Commencement Date
of a Plan Quarter. Participant Contributions will not be permitted to begin
at any time other than on the first payroll date occurring immediately after
the Commencement Date of a Plan Quarter. No interest shall accrue to
Participants on any amounts withheld under the Plan, unless and until the
Committee shall approve such accrual of interest on terms that it shall
specify and apply on a uniform basis as to all Participants.
(c) The Participant's Contribution Rate, once established,
shall remain in effect for all Plan Quarters unless changed by the
Participant in writing delivered to such Participant's Sponsoring Employer
and filed with such Sponsoring Employer at least 15 days prior to the
Commencement Date of the next Plan Quarter. A Participant's Contribution
Rate for a Plan Quarter may not be increased, decreased or otherwise modified
at any time during the 15-day period prior to the Commencement Date of such
Plan Quarter.
(d) A Participant may notify his or her Sponsoring Employer of
such Participant's desire to discontinue his or her Participant Contributions
by delivering to his or her Sponsoring Employer written notice on such forms
as may be provided by the Company or such Participant's Sponsoring Employer
at least 15 days prior to the Purchase Date of the relevant Plan Quarter.
Upon such request, there shall be promptly refunded to such Participant as
soon as practicable the entire cash balance in his or her Contribution
Account. If a Participant determines to discontinue his or her Participant
Contributions pursuant to this Section 3.05(d), (i) such Participant shall be
terminated from the Plan effective upon the date of receipt of such
Participant's notice to his or her Sponsoring Employer and (ii) such
Participant shall not be permitted to
4.3-4
<PAGE> 5
be a Participant in the Plan for the remainder of the calendar year of the
Company in which such notice is received. In the event that a Participant's
payroll deductions are prevented by legal process, the Participant will be
deemed to have terminated from the Plan.
(e) By enrolling in the Plan, each Participant will be deemed
to have authorized the establishment of a brokerage account in his or her
name at a securities brokerage firm or other financial institution, if
approved by the Committee in its discretion.
3.04 TERMINATION OF EMPLOYMENT. Any Participant (i) whose
employment by a Sponsoring Employer is terminated for any reason (except
death, retirement or Permanent Disability) or (ii) who shall cease to be an
Employee under the Plan, in either case during a Plan Quarter, shall cease
being a Participant as of the date of such termination of employment. Upon
such termination of employment, there shall be refunded to such Participant
as soon as practicable the entire cash balance in such Participant's
Contribution Account. Section 4.03(b) hereof shall apply to the issuance of
certificates to a Participant following termination of employment.
3.05 DEATH, RETIREMENT OR PERMANENT DISABILITY
(a) If a Participant shall die during a Plan Quarter, no
further Participant Contributions on behalf of the deceased Participant shall
be made. The executor or administrator of the deceased Participant's estate
may elect to withdraw the balance in said Participant's Contribution Account
by notifying the deceased Participant's Sponsoring Employer in writing at
least 15 days prior to the Purchase Date in respect of such Plan Quarter. In
the event no election to withdraw has been made, the balance accumulated in
the deceased Participant's Contribution Account shall be used to purchase
shares of Common Stock in accordance with Article IV hereof.
(b) If, during a Plan Quarter, a Participant shall (i) retire
or (ii) incur a Permanent Disability, no further contributions on behalf of
the retired or disabled Participant shall be made. A retired or disabled
Participant may elect to withdraw the balance in his or her Contribution
Account by notifying the Sponsoring Employer in writing at least 15 days
prior to the last day of the Plan Quarter. In the event no election to
withdraw has been made, the balance accumulated in the retired or disabled
Participant's Contribution Account shall be used to purchase shares of Common
Stock in accordance with Article IV hereof. In the event a retired or
disabled Participant shall die during the Plan Quarter of such Participant's
retirement or disability and such Participant shall not have notified his or
her Sponsoring Employer of his or her desire to withdraw his or her
Contribution Account, the executor or administrator of such Participant's
estate shall have all the rights provided pursuant to Section 3.05(a) hereof.
ARTICLE IV.
PURCHASE OF COMMON STOCK
4.01 PURCHASE OF COMMON STOCK.
(a) On each Purchase Date, each Participant's Contribution
Account shall be used to purchase the maximum number of whole and fractional
shares of Common Stock determined by dividing (i) the Participant's
Contribution Account as of such Purchase Date by (ii) the Purchase Price in
respect of such Plan Quarter.
(b) If, in any Plan Quarter, the total number of shares of
Common Stock to be purchased pursuant to the Plan by all Participants exceeds
the number of shares authorized under the Plan, then each Participant shall
purchase his or her pro rata portion of the shares of Common Stock remaining
available under the Plan based on the balances in each Participant's
Contribution Account as of the Purchase
4.3-5
<PAGE> 6
Date in respect of such Plan Quarter.
(c) Any cash dividends paid with respect to shares of Common
Stock held for the account of a Participant shall be, as determined by the
Committee on a uniform basis as to all Participants, either (i) distributed
to the Participant or (ii) credited to the Participant's Contribution Account
and used, in the same manner as payroll deductions, to purchase additional
shares of Common Stock under the Plan on the next Purchase Date (subject to
the limitations of Section 3.02 hereof).
4.02 PURCHASE PRICE. For each Plan Quarter, the Purchase Price
per share of Common Stock purchased pursuant to the Plan shall be the lesser
of (a) 85% of the Closing Market Price on the Commencement Date of such Plan
Quarter, and (b) 85% of the Closing Market Price on the Purchase Date of such
Plan Quarter.
4.03 NOTICE OF PURCHASE, STOCK CERTIFICATES, VOTING RIGHTS.
(a) After the Purchase Date in respect of each Plan Quarter, a
report will be made by the Company or its agent to each Participant stating
the entries made to his or her Contribution Account, the number of shares of
Common Stock purchased and the applicable Purchase Price.
(b) Evidence of shares of Common Stock purchased under the
Plan shall be maintained under the Plan for the account of each Participant
and registered in the manner determined by the Committee. Certificates for
the number of whole shares credited to a Participant's account under the Plan
will be issued to a Participant at any time promptly upon written request to
the Company or its agent; provided, however, that the Company may, at its
election, issue such certificates at such time or times as the Committee
deems appropriate, including, without limitation, following an Employee's
termination of employment with a Sponsoring Employer.
(c) Shares of Common Stock held under the Plan for the account
of each Participant shall be voted by the holder of record of such shares in
accordance with the Participant's instructions.
4.04 NOTIFICATION OF DISPOSITION OF STOCK. If a Participant or
former Participant disposes of a share of Common Stock purchased under the
Plan prior to two (2) years after the Commencement Date of the Plan Quarter
during which such share was purchased, then such Participant or former
Participant shall notify his or her Sponsoring Employer immediately of such
disposition in writing.
ARTICLE V.
MISCELLANEOUS PROVISIONS
5.01 SHARES SUBJECT TO PLAN; ADJUSTMENTS.
(a) The maximum number of shares of Common Stock which may be
purchased under the Plan is 1,500,000 subject, however, to adjustment as
hereinafter set forth. The shares of Common Stock to be purchased under the
Plan will be made available, at the discretion of the Board of Directors or
the Committee, either from authorized but unissued shares of Common Stock or
from previously issued shares of Common Stock reacquired by the Company,
including shares purchased on the open market.
(b) If the outstanding shares of Common Stock of the Company
are increased, decreased, or exchanged for a different number or kind of
shares or other securities, or if additional shares or new or different
shares or other securities are distributed with respect to such shares of
Common Stock or other securities, through merger, consolidation, spin off,
sale of all or substantially all the property of the
4.3-6
<PAGE> 7
Company, reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split or other distribution with respect to such
shares of Common Stock, or other securities, an appropriate and proportionate
adjustment may be made in the maximum number and kind of shares provided in
Section 5.01(a) hereof, subject in the case of certain corporate
reorganizations to the requirements of Section 424(a) of the Code.
5.02 ADMINISTRATION OF THE PLAN.
(a) Pursuant to the direction of the Board of Directors, the
Committee shall be responsible for the administration of the Plan. The
Committee shall have the discretionary authority to interpret the Plan and
determine all questions arising in the administration, application and
operation of the Plan, including all questions of fact and all questions of
interpretation of the provisions of the Plan. All such determinations by the
Committee shall be conclusive and binding on all persons. The Committee,
from time to time, may adopt, amend and rescind rules and regulations not
inconsistent with the Plan for carrying out the Plan, and may approve the
forms of any documents or writings provided for in the Plan. The Committee
shall have full discretionary authority to delegate ministerial functions of
the Plan to employees of the Company. No member of the Board of Directors or
the Committee shall be liable for any action, determination or omission taken
or made in good faith with respect to the Plan or any right granted
hereunder.
(b) The Committee may in its discretion engage a bank trust
department, securities brokerage firm or other financial institution as agent
to perform custodial and record-keeping functions for the Plan, such as
holding record title to the Participants' stock certificates, maintaining an
individual investment account for each Participant and providing periodic
account status reports to Participants.
(c) The Committee shall have the authority to adopt and
enforce such special rules and restrictions under the Plan to be applicable
to Participants who are subject to Section 16 of the Securities Exchange Act
of 1934, as amended, as the Committee shall deem are necessary or appropriate
to exempt certain Plan transactions from the requirements of such Section 16.
(d) The Company shall bear the cost of administering the Plan,
including any fees, costs and expenses relating to the purchase of shares of
Common Stock under the Plan. Notwithstanding the foregoing, Participants
will be responsible for all fees, costs and expenses incurred in connection
with the disposition of shares of Common Stock purchased under the Plan.
5.03 TERMINATION AND AMENDMENT OF THE PLAN.
(a) The Company may, by action of the Board of Directors,
terminate the Plan at any time and for any reason. The Plan shall
automatically terminate upon the purchase by Participants of all shares of
Common Stock subject to the Plan under Section 5.01 hereof, unless such
number of shares shall be increased by the Board of Directors and such
increase shall be approved by the shareholders of the Company. Upon
termination of the Plan, as soon as practicable, there shall be refunded to
each Participant the entire cash balance in his or her Contribution Account,
and there shall be forwarded to each Participant certificates for all whole
shares of Common Stock held under the Plan for the account of such
Participant.
(b) The Board of Directors reserves the right to modify, alter
or amend the Plan at any time and from time to time to any extent that it may
deem advisable, including, without limiting the generality of the foregoing,
any amendment deemed necessary to ensure compliance of the Plan with Section
423 of the Code. Notwithstanding the foregoing, no amendment of the Plan
shall operate to reduce any amounts previously allocated to a Participant's
Contribution Account nor to reduce a Participant's rights with respect to
shares of Common Stock previously purchased and held on his or her behalf
under the Plan. The Board of Directors may suspend operation of the Plan for
any period as it may deem advisable.
4.3-7
<PAGE> 8
5.04 GOVERNING LAW; COMPLIANCE WITH LAW. The Plan shall be
construed in accordance with the laws of the Commonwealth of Virginia. The
Company's obligation to sell and deliver shares of Common Stock hereunder
shall be subject to all applicable federal and state laws, rules and
regulations and to such approvals by any regulatory or governmental agency as
may, in the opinion of counsel for the Company, be required. The Company may
make such provisions as it may deem appropriate for the withholding of any
taxes or payment of any taxes which it determines it may be required to
withhold or pay in connection with a Participant's participation in the Plan.
5.05 NO ASSIGNMENT. The purchase rights granted hereunder are
not assignable or transferable by the Participants, other than by will or the
laws of descent and distribution, and are exercisable during the
Participant's lifetime only by the Participant. Any attempted assignment,
transfer or alienation not in compliance with the terms of the Plan shall be
null and void for all purposes and respects.
5.06 NO CONTRACT OF EMPLOYMENT. The Plan will not be deemed to
constitute a contract between a Sponsoring Employer and any Participant or to
be a consideration or an inducement for the employment of any Participant or
Employee. Nothing contained in the Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of a
Sponsoring Employer or to interfere with the right of a Sponsoring Employer
to discharge any Participant or Employee at any time regardless of the effect
which such discharge shall have upon him or her as a Participant of the Plan.
5.07 NO RIGHTS AS STOCKHOLDER. No eligible Employee or
Participant shall by reason of participation in the Plan have any rights of a
stockholder of the Company until he or she acquires shares of Common Stock as
herein provided.
4.3-8
<PAGE> 1
5.1
September 30, 1997
SPACEHAB, Incorporated
1595 Spring Hill Road
Suite 360
Vienna, Virginia 22182
Ladies and Gentlemen:
I am acting as counsel to SPACEHAB, Incorporated (the "Company") in
connection with the registration under the Securities Act of 1933, as
amended, of 1,500,000 shares of Common Stock, no par value per share (the
"Shares"), to be offered pursuant to the SPACEHAB, Incorporated 1997 Employee
Stock Purchase Plan (the "Plan"). In connection therewith, I have examined or
am otherwise familiar with the Company's Articles of Incorporation, the
Company's By-Laws, each as amended to date, the Plan, the Company's
Registration Statement on Form S-8 (the "Registration Statement") relating to
the Shares, relevant resolutions of the Board of Directors of the Company,
and such other documents and instruments as I have deemed necessary for the
purposes of this opinion. I am the General Counsel of the Company.
Based upon the foregoing, I am of the opinion that the Shares are
duly authorized for issuance and when issued in accordance with the
provisions of the Plan will be legally issued, fully paid and non-assessable
shares of the Company.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ William S. Dawson
William S. Dawson
5.1-1
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
Board of Directors
SPACEHAB, Incorporated
1595 Spring Hill Road
Suite 360
Vienna, Virginia 22182
Ladies and Gentlemen:
We hereby consent to the use of our report incorporated herein by reference.
Very truly yours,
KPMG Peat Marwick LLP
McLean, Virginia
September 30, 1997
