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As filed with the Securities and Exchange Commission on December 23, 1997
File No. 333- ____
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)
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<S> <C>
WASHINGTON 91-1273737
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1595 SPRING HILL ROAD, #360 22182
VIENNA, VIRGINIA (Zip Code)
(Address of Principal Executive Offices)
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SPACEHAB, INCORPORATED 1994 STOCK INCENTIVE PLAN
(as amended and restated effective October 21, 1997)
(Full Title of the Plan)
Margaret E. Grayson
SPACEHAB, INCORPORATED
1595 Spring Hill Road, #360
Vienna, Virginia 22182
(Name and Address of Agent For Service)
(703) 821-3000
(Telephone Number, Including Area Code, of Agent For Service)
-----------------
Copies to:
Frank E. Morgan II
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-8000
CALCULATION OF REGISTRATION FEE
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===================================================================================================================================
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE PRICE(1)
- ---------------------------------------- ----------------------- ---------------------- ----------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, no par value per share 257,338 Shares(2) $8.08 (3) $2,079,291 $613.39
- ---------------------------------------- ----------------------- ---------------------- ----------------------- -------------------
Common Stock, no par value per share 1,242,662 Shares(4) $10.25 (5) $12,737,285 $3757.50
- ---------------------------------------- ----------------------- ---------------------- ----------------------- -------------------
Total 1,500,000 Shares $14,816,576 $4370.89 (6)
===================================================================================================================================
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended.
(2) Represents the maximum number of shares being registered that may be
purchased upon exercise of stock options currently outstanding under the
Registrant's 1994 Stock Incentive Plan (as amended and restated
effective October 21, 1997).
(3) Based on the weighted average exercise price of currently outstanding
options.
(4) Represents the maximum number of shares being registered that may be
purchased upon exercise of stock options that may be granted in the
future under the Registrant's 1994 Stock Incentive Plan (as amended and
restated effective October 21, 1997).
(5) Based on the average of the high and low prices of Registrant's Common
Stock on the NASDAQ National Market ("NASDAQ") on December 22, 1997. (6)
Total filing fee being paid.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT REFERS ALSO TO REGISTRATION STATEMENT NO. 333-3636.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required pursuant to the instructions of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required pursuant to the instructions of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 1. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by SPACEHAB, Incorporated, a Washington
corporation (the "Registrant"), pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act"), are incorporated by reference in this registration
statement.
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997.
(3) The Registrant's Current Report on Form 8-K for October 28, 1997.
(4) The description of the Registrant's common stock, no par value per
share (the "Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A pursuant to Section 12(g) of the 1934 Act, including any amendment
or report filed for the purpose of updating such information.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference and a part hereof from the date of the filing of such documents.
ITEM 2. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 3. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 4. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws provide that a
director or officer of the Company shall not be personally liable to it or its
stockholders for monetary damages to the fullest extent permitted by the
Washington Business Act. In accordance with the Washington Business Act, the
Articles of Incorporation do not eliminate or limit the liability of a director
or officer for acts or omissions that involve intentional misconduct by a
director or officer or a knowing violation of law by a director or officer for
voting or assenting to an unlawful distribution, or for any transaction from
which the director or officer will personally receive a benefit in money,
property, or services to which the director or officer is not legally entitled.
The Washington Business Act does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's or
officer's breach of his duty of care. Any amendment to these provisions of the
Washington Business Act will automatically be incorporated by reference into the
Articles of Incorporation, without any vote on the part of its stockholders,
unless otherwise required.
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Indemnification Agreements. The Company and each of its directors and
executive officers has entered into indemnification agreements. The
indemnification agreements provide that the Company will indemnify the directors
and executive officers against certain liabilities (including settlements) and
expenses actually and reasonably incurred by them in connection with any
threatened or pending legal action, proceeding or investigation (other than
actions brought by or in the right of the Company) to which any of them is, or
is threatened to be, made a party by reason of their status as a director,
officer or agent of the Company, or serving at the request of the Company in any
other capacity for or on behalf of the Company; provided that (i) such person
acted in good faith and in a manner at least not opposed to the best interest of
the Company, (ii) with respect to any criminal proceedings had no reasonable
cause to believe his or her conduct was unlawful, (iii) such person is not
finally adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the Company, unless the court views in light of the
circumstances the director or executive officer is nevertheless entitled to
indemnification, and (iv) the indemnification does not relate to any liability
arising under Section 16(b) of the 1934 Act, or the rules or regulations
promulgated thereunder. With respect to any action brought by or in the right of
the Company, directors and executive officers may also be indemnified, to the
extent not prohibited by applicable laws or as determined by a court of
competent jurisdiction, against expenses actually and reasonably incurred by
them in connection with such action if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
Company.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is therefore unenforceable.
ITEM 5. EXEMPTION FROM REGISTRATION CLAIMED
Any restricted securities to be offered or resold pursuant to this
Registration Statement are exempt under Section 4(2) of the 1933 Act, as a
non-public offering of securities.
ITEM 6. EXHIBITS
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EXHIBIT DESCRIPTION
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4.1 Form of Certificate of Incorporation of the Registrant,
as amended.
4.2 Form of Bylaws of the Registrant, as amended.
5 Opinion of Dewey Ballantine LLP.
23.1 Consent of Dewey Ballantine LLP (contained in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on signature page)
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ITEM 7. 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 1993;
(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,
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individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(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 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 post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 1933 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 of 1933 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 City of Vienna, Commonwealth of Virginia, on this 23rd day of
December, 1997.
SPACEHAB, INCORPORATED
By: /s/ Shelley A. Harrison
-------------------------------
Name: Dr. Shelley A. Harrison
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below under the heading "Signatures" constitutes and appoints Dr. Shelley A.
Harrison and Margaret E. Grayson his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and all documents
in connection therewith, including, without limitation, any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, and hereby ratifies and confirms all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done.
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.
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Signature Title Date
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/s/ Shelley A. Harrison Chairman of the Board and Chief Executive December 23, 1997
--------------------------- Officer (Principal Executive Officer)
Dr. Shelley A. Harrison
/s/ Margaret E. Grayson Vice President of Finance (CFO), December 23, 1997
--------------------------- Treasurer and Assistant Secretary
Margaret E. Grayson (Principal Financial and Accounting
Officer)
/s/ Hironori Aihara Director December 23, 1997
---------------------------
Hironori Aihara
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/s/ Robert A. Citron Director December 23, 1997
---------------------------------
Robert A. Citron
/s/ Edward E. David, Jr. Director December 23, 1997
---------------------------------
Dr. Edward E. David, Jr.
/s/ Shi H. Huang Director December 23, 1997
---------------------------------
Dr. Shi H. Huang
/s/ Chester M. Lee Director December 23, 1997
---------------------------------
Chester M. Lee
/s/ Gordon S. Macklin Director December 23, 1997
---------------------------------
Gordon S. Macklin
/s/ Brad M. Meslin Director December 23, 1997
---------------------------------
Dr. Brad M. Meslin
/s/ Udo Pollvogt Director December 23, 1997
---------------------------------
Dr. Udo Pollvogt
/s/ Alvin L. Reeser Director December 23, 1997
---------------------------------
Alvin L. Reeser
/s/ James R. Thompson Director December 23, 1997
---------------------------------
James R. Thompson
/s/ Ernesto Vallerani Director December 23, 1997
---------------------------------
Prof. Ernesto Vallerani
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INDEX TO EXHIBITS
The following documents are filed as part of this Registration Statement.
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Exhibit Location
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4.1 Form of Amended and Restated Articles of Incorporated by reference from Exhibit 3.1 to the
Incorporation of the Registrant. Registrant's Registration Statement on Form S-1,
Registration Statement No. 33-97812, filed with the
Securities and Exchange Commission ("Commission")
on October 5, 1995.
4.2 Amended and Restated Bylaws of the Incorporated by reference from Exhibit 3.2 to the
Registrant. Registrant's Registration Statement on Form S-1,
Registration Statement No. 33-97812, filed with the
Commission on October 5, 1995.
4.3 1994 Stock Incentive Plan (as amended and Incorporated by reference to Exhibit A to the
restated effective October 21, 1997). Registrant's Definitive Proxy Statement on Schedule
14A, dated September 12, 1997.
5 Opinion of Dewey Ballantine LLP, re: Attached.
legality, including consent.
23.1 Consent of Dewey Ballantine LLP. Contained in Exhibit 5.
23.2 Consent of KPMG Peat Marwick LLP, Attached.
independent auditors.
24 Power of Attorney. Included on signature page.
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Exhibit 5
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
December 23, 1997
SPACEHAB, Incorporated
1595 Spring Hill Road
Vienna, Virginia 22182
Gentlemen:
On or about December 23, 1997, SPACEHAB, Incorporated (the "Company")
will file with the Securities and Exchange Commission on Form S-8 its
Registration Statement ("Registration Statement") relating to 1,500,000 shares
of Common Stock, no par value per share ("Common Stock"), that have been or may
be issued or transferred by the Company upon the exercise of stock options that
have been or may be granted to officers and other key employees and consultants
of the Company and its subsidiaries under the SPACEHAB, Incorporated 1994 Stock
Incentive Plan (as amended and restated effective October 21, 1997) (the
"Plan").
With respect to the Company and shares of its Common Stock, we are of
the opinion that:
A. The Company is a corporation duly organized and validly
existing under the laws of the State of Washington.
B. The 1,500,000 shares of Common Stock referred to above:
(i) are duly authorized; and
(ii) will be validly issued and outstanding, fully paid and
nonassessable upon issuance or transfer pursuant to the due exercise of
stock options in accordance with the terms and subject to the
conditions of the Plan and the payment of the option price stated in
such options.
In arriving at the foregoing opinion, we have examined corporate
records, plans, agreements and other documents of the Company.
We consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
DEWEY BALLANTINE LLP
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CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
SPACEHAB, Incorporated and Subsidiary:
We consent to the use of our report incorporated herein by reference, which
report appears in the Company's 1997 Annual Report on Form 10-K.
KPMG Peat Marwick LLP
McLean, Virginia
December 22, 1997
