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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)
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)
SPACEHAB, INCORPORATED 1995
DIRECTORS' STOCK OPTION 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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===================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no par value
per share)................... 250,000 Shares $10.25 $2,562,500 $755.94
===================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h)(1), the 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 the Registrant's Common
Stock as reported on the Nasdaq National Market on December 22, 1997.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1993, THIS REGISTRATION
STATEMENT REFERS ALSO TO REGISTRATION STATEMENT NO. 333-3638
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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
(i) 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.
(ii) DESCRIPTION OF SECURITIES
Not applicable.
(iii) INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
(iv) 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
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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.
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.
(v) 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.
(vi) 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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(vii) 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, 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
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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 or 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 December 23, 1997
----------------------- Executive Officer
Dr. Shelley A. Harrison (Principal Executive Officer)
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<TABLE>
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
/s/ Robert A. Ciron 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
</TABLE>
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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 1995 Directors' Stock Option Plan (as Incorporated by reference to Exhibit B to the
amended and restated effective October 21, Registrant's Definitive Proxy Statement on Schedule
1997). 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 250,000 shares of
Common Stock, no par value per share ("Common Stock") that may be issued or
transferred by the Company upon the exercise of stock options that have been or
may be granted to non-employee members of the Board of Directors of the Company
and its subsidiaries under the SPACEHAB, Incorporated 1995 Directors' Stock
Option 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 250,000 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
