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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of Earliest Event Reported) - August 5, 1999
---------------
SPACEHAB, INCORPORATED
(Exact name of registrant as specified in its charter)
Washington 0-27206 91-1273737
(State or other jurisdiction of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
300 D Street, SW, Suite 814, Washington, DC 20024
(Address of principal executive offices) (Zip Code)
(202) 488-3500
(Registrant's telephone number, including area code)
(Former name or address, if changed since last report)
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Item 5. Other Events.
On August 5, 1999, Spacehab, Incorporated (the "Company") issued
975,000 shares of a new Series B Senior Convertible Preferred Stock (the "Series
B Preferred Stock") and agreed to issue an additional 358,334 shares of the
Series B Preferred Stock following an amendment to its Articles of Incorporation
to permit an increase in the number of authorized shares of preferred stock.
This amendment will be presented to stockholders at their Annual Meeting
scheduled for October 14, 1999.
The purchaser of the Series B Preferred Stock is DaimlerChrysler
Aerospace AG and the total consideration to be paid is $12 million, assuming all
1,333,334 shares of Series B Preferred are issued.
The Preferred Stock is entitled to dividends as declared by the
Company's Board of Directors, and the Company may pay dividends upon its Common
Stock only if the Preferred Stock will participate equally in any such dividend.
The Preferred Stock will rank senior to the Common Stock of the Company as to
dividends and distributions upon liquidation, dissolution or winding up of the
Company, and will be entitled, prior and in preference to any distribution to
the holders of Common Stock, to be paid $9 per share of Preferred Stock upon
such liquidation, dissolution or winding up of the Company.
The Preferred Stock is convertible into shares of the Company's Common
Stock on a one for one basis, subject to anti-dilution provisions.
The Preferred Stock will be entitled to an equal number of votes as the
number of shares of the Company's Common Stock into which such Preferred Stock
is then convertible on all matters except the election of directors. The
Preferred Stock is entitled, voting separately as a class, to elect one director
of the Company.
The above summary is qualified in its entirety by the terms and
provisions of the exhibits filed with this Current Report on Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibits
Following is the Index of Exhibits furnished in accordance
with Item 601 of Regulation S-K, filed as part of this Current Report on Form
8-K:
4.1 Designation of Rights, Terms and Preferences of
Series B Senior Convertible Preferred Stock of
SPACEHAB, Incorporated.
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4.2 Preferred Stock Purchase Agreement between SPACEHAB,
Incorporated and DaimlerChrysler Aerospace AG dated
as of August 2, 1999.
4.3 Registration Rights Agreement between SPACEHAB,
Incorporated and DaimlerChrysler Aerospace AG dated
as of August 5, 1999
99.1 Press Release, dated August 2, 1999, announcing
DaimlerChrysler Aerospace AG $12 million commitment
to purchase shares of Series B Preferred Stock in
SPACEHAB, Incorporated.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this Report to be signed on its behalf by
the undersigned thereunto duly authorized.
SPACEHAB, INC.
By: /s/ Mark Kissman
-------------------------------------------
Mark Kissman
Vice President, Chief Financial Officer and
Secretary
Dated: August 18, 1999
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EXHIBIT INDEX
Exhibit No. Description
4.1 Designation of Rights, Terms and Preferences of Series B
Senior Convertible Preferred Stock of SPACEHAB, Incorporated
4.2 Preferred Stock Purchase Agreement between SPACEHAB,
Incorporated and DaimlerChrysler Aerospace AG dated as of
August 2, 1999.
4.3 Registration Rights Agreement between SPACEHAB, Incorporated
and DaimlerChrysler Aerospace AG dated as of August 5, 1999.
99.1 Press Release, dated August 2, 1999, announcing
DaimlerChrysler Aerospace AG $12 million commitment to
purchase shares of Series B Preferred Stock in SPACEHAB,
Incorporated.
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EXHIBIT 4.1
DESIGNATION OF RIGHTS, TERMS AND PREFERENCES
OF
SERIES B SENIOR CONVERTIBLE PREFERRED STOCK
OF
SPACEHAB, INCORPORATED
(Pursuant to Chapter 6 of the
Washington Business Corporation Act)
Spacehab, Incorporated, a corporation organized and existing under the
Business Corporation Act of the State of Washington (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Chapter 6 of the
Business Corporation Act at a meeting duly called and held on July 13, 1999:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (hereinafter called the
"Board of Directors" or the "Board") in accordance with the provisions
of the Articles of Incorporation, the Board of Directors hereby creates
a series of Preferred Stock of the Corporation, no par value per share
(the "Preferred Stock"), and hereby states the designation and number
of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Series B Senior Convertible Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series B Senior Convertible Preferred Stock" (the "Series B
Preferred Stock") and the number of shares constituting the Series B Preferred
Stock shall be Nine Hundred Seventy-Five Thousand (975,000). Such number of
shares may be decreased by resolution of the Board of Directors; provided that
no decrease shall reduce the number of shares of Series B Preferred Stock to a
number less than the number of shares then outstanding.
Section 2. Dividends. The holders of the Series B Preferred Stock shall
be entitled to receive, out of funds legally available therefor, such dividends
with respect to the shares of Series B Preferred Stock as may be declared by the
Board of Directors. In addition, when and if the Board of Directors shall
declare a dividend payable with respect to the then outstanding shares of Common
Stock, no par value per share ("Common Stock") of the Corporation, each holder
of Series B Preferred Stock shall be entitled to the amount of dividends as
would be payable on the largest number of whole shares of Common Stock into
which shares of Series B Preferred Stock held by such holder could then be
converted pursuant to Section 5 hereof (such number to be determined as of the
record date for the determination of holders of Common Stock entitled to receive
such
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dividend). Dividends shall not be declared or paid to holders of Common Stock
unless and until the Corporation shall simultaneously declare and pay to holders
of Series B Preferred Stock the dividend referred to in the preceding sentence.
Section 3. Liquidation, Dissolution or Winding Up; Certain Mergers,
Consolidations and Asset Sales.
a. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series B
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders, before any
payment shall be made to the holders of Common Stock or any other class or
series of stock ranking on liquidation junior to the Series B Preferred Stock
(the Common Stock and any other class or series of stock ranking on liquidation
junior to the Series B Preferred Stock, including without limitation, the Series
A Junior Participating Preferred Stock of the Corporation, being collectively
referred to as "Junior Stock") by reason of their ownership thereof, an amount
equal to Nine Dollars ($9.00) for each outstanding share of Series B Preferred
Stock (the "Series B Original Issue Price")(subject to appropriate adjustment in
the event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares) plus (ii) any dividends declared or
accrued but unpaid thereon. If upon any such liquidation, dissolution or winding
up of the Corporation, the remaining assets of the Corporation available for
distribution to its stockholders shall be insufficient to pay the holders of
shares of Series B Preferred Stock the full amount to which they shall be
entitled, the holders of shares of Series B Preferred Stock and any class or
series of stock ranking on liquidation on a parity with the Series B Preferred
Stock shall share ratably (based upon the sum of each series respective Original
Issue Price plus accrued but unpaid dividends) in any distribution of the
remaining assets and funds of the Corporation in proportion to the respective
amounts which would otherwise be payable in respect of the shares held by them
upon such distribution if all amounts payable on or with respect to such shares
were paid in full.
b. After the payment of all preferential amounts required to
be paid to the holders of Series B Preferred Stock and any other class or series
of stock of the Corporation ranking on liquidation on a parity with the Series B
Preferred Stock upon the dissolution, liquidation or winding up of the
Corporation, the holders of shares of Junior Stock then outstanding shall be
entitled to receive the remaining assets and funds of the Corporation available
for distribution to its stockholders.
c. The consolidation or merger of the Corporation into or with
any other entity or entities which results in the exchange of outstanding shares
of the Corporation for securities or other consideration issued or paid or
caused to be issued or paid by any such entity or affiliate thereof, and the
sale or transfer by the Corporation of all or substantially all its assets,
shall be deemed to be a liquidation, dissolution or winding up of the
Corporation within the meaning of the provisions of this Section 3, but only for
the purposes of the redemption of such Series B Preferred Stock, and only if so
elected by the holders of a majority of the outstanding shares of Series B
Preferred Stock, in their sole discretion.
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Section 4. Voting.
a. Each holder of outstanding shares of Series B Preferred Stock shall
be entitled to the number of votes equal to the number of whole shares of Common
Stock into which the shares of Series B Preferred Stock held by such holder are
then convertible (as adjusted from time to time pursuant to Section 5 hereof),
at each meeting of stockholders of the Corporation (and written actions of
stockholders in lieu of meetings) with respect to any and all matters presented
to the stockholders of the Corporation for their action or consideration. Except
as provided by law, or by the provisions of Subsections 4(b), 4(c) and 4(d)
below, holders of Series B Preferred Stock shall vote together with the holders
of Common Stock, as a single class.
b. For so long as (i) any shares of Series B Preferred Stock remain
outstanding and (ii) any holder thereof is a Qualified Holder (as defined in the
Preferred Stock Purchase Agreement (the "Purchase Agreement") dated as of August
2, 1999 between the Corporation and Daimler Chrysler Aerospace AG ("DASA")), the
Series B Preferred Stock (voting as a class) will elect one of the Directors
(the "Preferred Director") and the Common Stock (voting as a class) will elect
the remaining Directors. The Preferred Director shall be included as a member of
the Executive Committee of the Board. If at any time Series B Preferred Stock
issued remains outstanding but there is no Qualified Holder, all of the
Directors will be elected by the Series B Preferred Stock and Common Stock
voting together as one class. This Section 4(b) shall not affect or limit
provisions of Section 8.1 of the Purchase Agreement as to the right of a
Qualified Holder to designate a nominee for election to the Board (and for such
designee, if elected by the shareholders, to serve on the Executive Committee of
the Board), which provisions may remain applicable notwithstanding there not
being any shares of Series B Preferred Stock outstanding.
c. Any Preferred Director may be removed at any time, by the vote of
the holders of more than fifty percent (50%) of all of the then outstanding
shares of Series B Preferred Stock, voting as a separate class in person or by
proxy at a special meeting of stockholders called for such purpose (or at any
adjournment thereof) by holders of at least twenty percent (20%) of the
outstanding shares of Series B Preferred Stock or at any annual meeting of
stockholders, or by written consent delivered to the Secretary of the
Corporation, and no Preferred Director may be removed at any time without the
affirmative vote or consent of the holders of more than fifty percent (50%) of
all of the outstanding shares of Series B Preferred Stock. Any vacancy created
by the removal, death or resignation of a Preferred Director may be filled by
the holders of more than fifty percent (50%) of all of the outstanding shares of
Series B Preferred Stock by vote in person or by proxy at a special meeting of
stockholders of the Corporation called for such purpose by holders of at least
twenty percent (20%) of the outstanding shares of Series B Preferred Stock, or
at any annual meeting, or by written consent delivered to the Secretary of the
Corporation.
d. So long as any shares of the Series B Preferred Stock remain
outstanding, unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of more than fifty
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percent (50%) of all of the shares of Series B Preferred Stock at the time
outstanding, voting separately as a class, given in person or by proxy either in
writing (as may be permitted by law and the Articles of Incorporation and
By-laws of the Corporation) or at any special or annual meeting, shall be
necessary to permit, effect or validate the taking of any of the following
actions by the Corporation:
(i) create, authorize, issue or sell (i) any class or series
of capital stock ranking prior to or on parity with the Series B
Preferred Stock as to dividends or upon liquidation, dissolution or
winding up; provided, however, that holders of Common Stock may receive
dividends to the extent provided by Section 2 above and, provided
further, that the consent to issuance of any class or series of capital
stock ranking on parity with the Series B Preferred Stock shall not be
unreasonably withheld; or (ii) any rights, options or other securities
convertible, exercisable or exchangeable for or into, or having rights
to purchase, any shares of capital stock described in clause (i)
hereof; or
(ii) amend the Articles of Incorporation or By-laws of the
Corporation, or in any other manner alter or change the powers, rights,
privileges or preferences of the Series B Preferred Stock, if such
amendment or action would alter, change or affect adversely the powers,
rights, privileges or preferences of the holders of the Series B
Preferred Stock; or
(iii) increase the number of shares of Series B Preferred
Stock authorized for issuance above 1,333,334 shares; or
(iv) at any time after the initial issuance date of the Series
B Preferred Stock, issue any shares of Series B Preferred Stock, except
(i) issuances pursuant to the Purchase Agreement, or (ii) issuances of
share certificates upon transfers or exchanges of shares by holders
(other than the Corporation) or in replacement of lost, stolen, damaged
or mutilated share certificates;
Section 5. Optional Conversion. The holders of the Series B Preferred
Stock shall each have conversion rights as follows (the "Conversion Rights"):
a. Right to Convert. Shares of Series B Preferred Stock shall
be convertible, at the option of the holder thereof, at any time and from time
to time, and without the payment of additional consideration by the holder
thereof, into such number of fully paid and nonassessable shares of Common Stock
as is determined by dividing the aggregate Series B Original Issue Price of the
Shares of Series B Preferred Stock being converted by the Series B Conversion
Price in effect at the time of conversion or such share. The initial "Series B
Conversion Price" shall be Nine Dollars ($9.00), subject to adjustment as
provided below. For purposes of this Section 5, "Original Issue Date" shall
mean, for the Series B Preferred Stock, the date on which the first share of
Series B Preferred Stock was issued.
In the event of a liquidation of the Corporation, the
Conversion Rights shall terminate at the close of business on the first full day
preceding the date
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fixed for the payment of any amounts distributable on liquidation to the holders
of Series B Preferred Stock.
b. Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversion of the Series B Preferred Stock, and the number
of shares of Common Stock to be issued shall be rounded to the nearest whole
share. The shares issuable upon such conversion shall be determined on the basis
of the total number of shares of Series B Preferred Stock which the holder is at
the time converting into Common Stock and the number of shares of Common Stock
issuable upon such aggregate conversion.
c. Mechanics of Conversion.
(i) In order for a holder of Series B Preferred Stock to
convert shares of Series B Preferred Stock into shares of Common Stock, such
holder shall surrender the certificate or certificates for such shares of Series
B Preferred Stock, at the office of the transfer agent for the Corporation (or
at the principal office of the Corporation if the Corporation serves as its own
transfer agent), together with written notice that such holder elects to convert
all or any number of the shares of the Series B Preferred Stock represented by
such certificate or certificates. Such notice shall state such holder's name or
the names of the nominees in which such holder wishes the certificate or
certificates for shares of Common Stock to be issued. If required by the
Corporation, certificates surrendered for conversion shall be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or his,
her or its attorney duly authorized in writing. The date of receipt of such
certificates and notice by the transfer agent (or by the Corporation if the
Corporation serves as its own transfer agent) shall be the conversion date
("Conversion Date"). The Corporation shall, as soon as practicable after the
Conversion Date, issue and deliver at such office to such holder of Series B
Preferred Stock, or to his, her or its nominees, a certificate or certificates
for the number of shares of Common Stock to which such holder shall be entitled,
together with cash in lieu of any fraction of a share. In case less than all the
shares of Series B Preferred Stock represented by any certificate are being
converted, a new certificate representing the unconverted shares of Series B
Preferred Stock shall be issued to the holder thereof without cost to such
holder.
(ii) The Corporation shall at all times when the Series B
Preferred Stock shall be outstanding, reserve and keep available out of its
authorized but unissued stock, for the purpose of effecting the conversion of
the Series B Preferred Stock, such number of its duly authorized shares of
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding Series B Preferred Stock.
(iii) Upon any such conversion, no adjustment to the Series
B Conversion Price shall be made for any declared or accrued but unpaid
dividends on the Series B Preferred Stock surrendered for conversion or on the
Common Stock delivered upon conversion, but, as provided in clause (iv) below,
such dividends shall remain payable to the holder thereof.
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(iv) All shares of Series B Preferred Stock which shall
have been surrendered for conversion as herein provided shall no longer be
deemed to be outstanding and all rights with respect to such shares, including
the rights, if any, to receive notices and to vote, shall immediately cease and
terminate on the Conversion Date, except only the right of the holders thereof
to receive shares of Common Stock in exchange therefor and payment of any
dividends declared or accrued but unpaid thereon. Any shares of Series B
Preferred Stock so converted shall be retired and cancelled and shall not be
reissued, and the Corporation (without the need for stockholder action) may from
time to time take such appropriate action as may be necessary to reduce the
authorized Series B Preferred Stock accordingly.
(v) The Corporation shall pay any and all issue and other
taxes that may be payable in respect of any issuance or delivery of shares of
Common Stock upon conversion of shares of Series B Preferred Stock pursuant to
this Section 5. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of shares of Common Stock in a name other than that in which the shares
of Series B Preferred Stock so converted were registered, and no such issuance
or delivery shall be made unless and until the person or entity requesting such
issuance has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such tax has been
paid.
d. Adjustment for Stock Splits and Combinations. If the
Corporation shall at any time or from time to time after the Original Issue Date
of the Series B Preferred Stock effect a subdivision of the outstanding Common
Stock, the Series B Conversion Price then in effect with respect to the Series B
Preferred Stock immediately before that subdivision shall be proportionately
decreased. If the Corporation shall at any time or from time to time after the
Original Issue Date of the Series B Preferred Stock combine the outstanding
shares of Common Stock, the Series B Conversion Price then in effect immediately
before the combination with respect to the Series B Preferred Stock shall be
proportionately increased. Any adjustment under this paragraph shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
e. Adjustment for Certain Dividends and Distributions. In the
event the Corporation at any time, or from time to time after the Original Issue
Date of the Series B Preferred Stock shall make or issue, or fix a record date
for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable in additional shares of Common Stock, then and in
each such event the Series B Conversion Price with respect to the Series B
Preferred Stock then in effect shall be decreased as of the time of such
issuance or, in the event such a record date shall have been fixed, as of the
close of business on such record date, by multiplying the Series B Conversion
Price for the Series B Preferred Stock then in effect by a fraction:
(1) the numerator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date, and
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(2) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the
time of such issuance or the close of business on such record date plus
the number of shares of Common Stock issuable in payment of such
dividend or distribution;
provided, however, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefor, the Series B Conversion Price for the Series B Preferred Stock
shall be recomputed accordingly as of the close of business on such record date
and thereafter the Series B Conversion Price for the Series B Preferred Stock
shall be adjusted pursuant to this paragraph as of the time of actual payment of
such dividends or distributions.
f. Adjustments for Other Dividends and Distributions. In the
event the Corporation at any time or from time to time after the Original Issue
Date of the Series B Preferred Stock shall make or issue, or fix a record date
for the determination of holders of Common Stock entitled to receive, a dividend
or other distribution payable in securities of the Corporation other than shares
of Common Stock, then and in each such event provision shall be made so that the
holders of Series B Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
amount of securities of the Corporation that they would have received had the
Series B Preferred Stock been converted into Common Stock on the date of such
event and had thereafter, during the period from the date of such event to and
including the conversion date, retained such securities receivable by them as
aforesaid during such period, giving application to all adjustments called for
during such period under this paragraph with respect to the rights of the
holders of the Series B Preferred Stock.
g. Adjustment for Reclassification, Exchange or Substitution.
If the Common Stock issuable upon the conversion of the Series B Preferred Stock
shall be changed into the same or a different number of shares of any class or
classes of stock, whether by capital reorganization, reclassification, or
otherwise (other than a subdivision or combination of shares or stock dividend
provided for above, or a reorganization, merger, consolidation, or sale of
assets provided for below), then and in each such event the holders of the
Series B Preferred Stock shall have the right thereafter to convert such share
into the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification, or other change, by
holders of the number of shares of Common Stock into which such shares of Series
B Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
h. Adjustment for Merger or Reorganization, etc. In case of
any consolidation or merger of the Corporation with or into another corporation
or the sale of all or substantially all of the assets of the Corporation to
another corporation (other than a consolidation, merger or sale which is covered
by Subsection 3(c)), each share of Series B Preferred Stock shall thereafter be
convertible (or shall be converted into a security which shall be convertible)
into the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Corporation
deliverable upon conversion of such Series B Preferred Stock would have
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been entitled upon such consolidation, merger or sale; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions in this Section 5 set forth
with respect to the rights and interest thereafter of the holders of the Series
B Preferred Stock, to the end that the provisions set forth in this Section 5
(including provisions with respect to changes in and other adjustments of the
Series B Conversion Price) shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the conversion of the Series B Preferred Stock.
i. No Impairment. The Corporation will not, by amendment of
its Articles of Incorporation, or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Corporation, but
will at all times in good faith assist in the carrying out of all the provisions
of this Section 5 and in the taking of all such action as may be necessary or
appropriate in order to protect the respective Conversion Rights of the holders
of the Series B Preferred Stock against impairment.
j. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Series B Conversion Price pursuant to this
Section 5, the Corporation at its expense shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and furnish to each holder
of Series B Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Corporation shall, upon the written request at any
time of any holder of Series B Preferred Stock, furnish or cause to be furnished
to such holder a similar certificate setting forth (i) such adjustments and
readjustments, (ii) the Series C Conversion Price then in effect, and (iii) the
number of shares of Common Stock and the amount, if any, of other property which
then would be received upon the conversion of such Series B Preferred Stock.
k. Notice of Record Date. In the event:
(a) that the Corporation declares a dividend (or any
other distribution) on its Common Stock payable in
Common Stock or other securities of the corporation;
(b) that the Corporation subdivides or combines its
outstanding shares of Common Stock;
(c) of any reclassification of the Common Stock of the
Corporation (other than a subdivision or combination
of its outstanding shares of Common Stock or a stock
dividend or stock distribution thereon), or of any
consolidation or merger of the Corporation into or
with another corporation, or of the sale of all or
substantially all of the assets of the Corporation;
or
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(d) of the involuntary or voluntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed at its principal office, and shall
cause to be mailed to the holders of the Series B Preferred Stock at their last
addresses as shown on the records of the Corporation or its transfer agent, at
least ten (10) days prior to the date specified in (i) below or twenty (20) days
before the date specified in (ii) below, a notice stating
(i) the record date of such dividend, distribution, subdivision or
combination, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled
to such dividend, distribution, subdivision or combination are
to be determined, or
(ii) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, consolidation, merger, sale, dissolution or
winding up.
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IN WITNESS WHEREOF, this Designation of Rights, Terms and
Preferences is executed on behalf of the Corporation by its President and
attested by its Assistant Secretary this 29th day of July, 1999.
SPACEHAB, INCORPORATED
By:
--------------------------
Name: David A. Rossi
Title: President
Attest:
--------------------------
Name: Frank E. Morgan II
Title: Assistant Secretary
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EXHIBIT 4.2
================================================================================
PREFERRED STOCK PURCHASE AGREEMENT
BETWEEN
SPACEHAB, INCORPORATED
AND
DAIMLERCHRYSLER AEROSPACE AG
DATED AS OF AUGUST 2, 1999
================================================================================
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PREFERRED STOCK PURCHASE AGREEMENT dated as of August 2, 1999 (together with all
exhibits and schedules, the "Purchase Agreement") by and among Spacehab,
Incorporated, a Washington corporation (the "Company", which term shall also
include successors and assigns), and DaimlerChrysler Aerospace AG, a German
corporation ("Purchaser", which term shall also include successors and assigns).
WI T N E S S E T H:
In consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. SALE AND PURCHASE
1.1 Issuance of Shares.
The Company will authorize the issuance (i) on the Initial Closing Date
(as hereinafter defined) of 975,000 shares (the "Initial Shares") of Series B
Senior Convertible Preferred Stock, $0.01 par value per share (the "Preferred
Stock") and (ii) on the Second Closing Date (as hereinafter defined) of an
additional 358,334 shares (the "Subsequent Shares") of Preferred Stock. The
Initial Shares and the Subsequent Shares being acquired under this Purchase
Agreement are herein collectively referred to as the "Shares" and shall contain
all the rights and privileges as more fully set forth in the Designation of
Rights, Terms and Preferences to the Articles of Incorporation adopted by the
Company in the form attached hereto as Exhibit A (the "Certificate of
Designations").
1.2 The Closings.
(a) The Company agrees to sell to Purchaser and, subject to the terms
and conditions hereof and in reliance upon the representations and warranties of
the Company contained herein or made pursuant hereto, Purchaser agrees to
purchase from the Company, the Initial Shares for the aggregate purchase price
of $8,775,000, or $9.00 per Share (the "Purchase Price"). No further payment
shall be required from the Purchaser for the Initial Shares.
(b) The closing of the purchase and sale of the Initial Shares
purchased by the Purchaser (the "Initial Closing") will take place at the
offices of Dorsey & Whitney LLP in Washington, D.C., at 10:00 A.M., Eastern
Standard time, on August 5, 1999 or such other time and date as shall be
mutually agreed to by the Company and the Purchaser. Such time and date are
herein referred to as the "Initial Closing Date".
(c) The Company agrees to sell to Purchaser and, subject to the terms
and conditions hereof and in reliance upon the representations and warranties of
the Company contained herein or made pursuant hereto, Purchaser agrees to
purchase from the Company, the Subsequent Shares for the aggregate Purchase
Price of $3,225,006, or $9.00 per Share. No further payment shall be required
from the Purchaser for the Subsequent Shares.
<PAGE> 3
(d) The closing of the purchase and sale of the Subsequent Shares
purchased by the Purchaser (the "Second Closing") will take place at the offices
of Dorsey & Whitney LLP in Washington, D.C., at 10:00 A.M., Eastern Standard
time, on the day which is five (5) Business Days after the shareholders of the
Company approve the Amendment (as hereinafter defined) or such other time and
date as shall be mutually agreed to by the Company and the Purchaser. Such time
and date are herein referred to as the "Second Closing Date".
(e) At each Closing (i) the Company will deliver to Purchaser a
certificate registered in Purchaser's name (or in any such other name as
Purchaser may request) evidencing the Shares being purchased at such Closing,
and (ii) upon Purchaser's receipt thereof, Purchaser will deliver to the Company
by wire transfer of immediately available funds an aggregate amount equal to the
Purchase Price of such Shares.
SECTION 2. DEFINITIONS
(a) For purposes of this Purchase Agreement, the following definitions
shall apply (such definitions to be equally applicable to both the singular and
plural forms of the terms defined):
"Affiliate," when used with respect to any Person, means any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition, "control"
(including the correlative terms "controlling", "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise. Notwithstanding the foregoing, for
purposes of this definition, neither the execution of this Purchase Agreement
and the Other Transaction Documents (or the existence of any other agreement or
arrangement between the Company and Purchaser), nor the holding of any of the
Shares (or the exercise of any such rights, including without limitation
electing a director to the Board of the Company), shall cause Purchaser (or such
nominated director or observer of any person related to such Person) to be
deemed to be an "Affiliate" of the Company or of any Subsidiary.
"Amendment" means the amendment to the Articles of Incorporation
contemplated by Section 8.2 below.
"Articles of Incorporation" means the Restated Articles of
Incorporation of the Company dated January 8, 1998, as amended by the
Certificate of Designations.
"Benefit Plan" means any Plan, existing on the Closing Date or
established prior thereto, to which contributions have at any time been made by
the Company or any Subsidiary, or any predecessor of any of the foregoing, or
under which any employee, former employee or director of the Company or any
Subsidiary or any beneficiary thereof is covered, is eligible for coverage or
has benefit rights.
"Board" means, with respect to any Person which is a corporation, a
business trust or
<PAGE> 4
other entity, the board of directors or other group, however designated, which
is charged with legal responsibility for the management of such Person, or any
committee of such board of directors or group, however designated, which is
authorized to exercise the power of such board or group in respect of the matter
in question.
"Business Day" means any day, other than a Saturday, Sunday or legal
holiday, on which banks in New York, New York are open for business.
"Certificate of Designations" has the meaning set forth in Section 1.1
hereof.
"Closing"means the Initial Closing or the Subsequent Closing, as the
case may be.
"Closing Date" means the Initial Closing Date or the Subsequent Closing
Date, as the case may be.
"Code" means the United States Internal Revenue Code of 1986, as
amended from time to time, and the regulations and interpretations thereunder.
"Collaboration Agreement" has the meaning set forth in Section 3.1(b)
hereof.
"Commission" means the United States Securities and Exchange Commission
and any other similar or successor agency of the federal government
administering the Securities Act or the Exchange Act.
"Common Stock" of the Company or of a Subsidiary (as the case may be)
shall mean the Company's or the Subsidiary's (as the case may be) presently
authorized Common Stock, and any stock into which such Common Stock may
hereafter be changed or for which such Common Stock may be exchanged after
giving effect to the terms of such change or exchange (by way of reorganization,
recapitalization, merger, consolidation or otherwise) and shall also include any
Common Stock of the Company or of a Subsidiary (as the case may be) of any other
class hereafter authorized which is not preferred as to dividends or assets over
any other class of capital stock of the Company or a Subsidiary (as the case may
be) or which has ordinary voting power for the election of directors of the
Company or of a Subsidiary (as the case may be).
"Company" means Spacehab, Incorporated, a Washington corporation, and
its successors and assigns.
"Consents" has the meaning set forth in Section 5.4 hereof.
"Consolidated" or "consolidated" when used with reference to any
financial term in this Purchase Agreement, means the aggregate for the Company
and its Subsidiaries of the amounts signified by such term for all such Persons,
with intercompany items eliminated, and, with respect to net worth, after
eliminating the portion of net worth properly attributable to minority
interests, if any, in the capital of any such Person (other than in the capital
of the Company) and otherwise
4
<PAGE> 5
as determined in accordance with GAAP (except as otherwise expressly provided
herein).
"Disclosure Material" has the meaning set forth in Section 5.5(a)
hereof.
"Environmental Claim" means any and all administrative or judicial
actions, suits, orders, claims, liens, notices, notices of violations,
investigations, complaints, requests for information, proceedings, or other
communication (written or oral), whether criminal or civil, (collectively,
"Claims") pursuant to or relating to any applicable Environmental Law or any
Environmental Permit by any person (including but not limited to any
Governmental Authority, private person and citizens' group) based upon,
alleging, asserting, or claiming any actual or potential (i) violation of or
liability under any Environmental Law, (ii) violation of any Environmental
Permit, or (iii) liability for investigatory costs, cleanup costs, removal
costs, remedial costs, response costs, natural resource damages, property
damage, personal injury, fines, or penalties arising out of, based on, resulting
from, or related to the presence, Release, or threatened Release into the
environment, of any Hazardous Materials at any location, including but not
limited to any off-Site location to which Hazardous Materials or materials
containing Hazardous Materials were sent for handling, storage, treatment, or
disposal.
"Environmental Laws" means all current and future, federal, state,
local, foreign, civil and criminal laws, statutes, ordinances, orders, codes,
Environmental Permits, rules, policies, and regulations and common law relating
to the protection of the environment and human health or relating to the
handling, use, generation, treatment, storage, transportation or disposal of
Hazardous Materials, including but not limited to the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.;
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. Section 651; the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Section 136 et seq. and the Oil Pollution Act of 1990,
33 U.S.C. Section 2701 et seq.; and all the state analogues thereto, all as may
be amended or superseded from time to time.
"Environmental Permits" means all permits, licenses, approvals,
authorizations or consents required by any Governmental Authority under any
applicable Environmental Law and includes any and all orders, consent orders or
binding agreements issued or entered into by a Governmental Authority under any
applicable Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any Person who is, or at any time was, a member
of a controlled group (within the meaning of Section 412(n)(6) of the Code) that
includes, or at any time included, the Company or any Subsidiary, or any
predecessor of any of the foregoing.
5
<PAGE> 6
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended from time to time, and the rules, regulations and interpretations
thereunder.
"GAAP" means United States generally accepted accounting principles
consistently applied.
"Governmental Authority" means any federal, state, local or county
governmental agency, department, board, commission, instrumentality or authority
(including regulatory authority) of the United States or any foreign nation or
any self regulatory organization having jurisdiction over the Company (or any
Subsidiary) or any of their respective assets or businesses.
"Hazardous Materials" means any petroleum, petroleum hydrocarbons,
petroleum waste or petroleum products, underground storage tanks, asbestos or
asbestos containing materials, pesticides, lead and lead containing materials,
urea formaldehyde insulation and polychlorinated biphenyls (PCBs), ionizing and
non-ionizing radiation (including radon and electromagnetic frequency
radiation); and any chemicals, materials, substances or wastes in any amount or
concentration which are now or hereafter become defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants" or words of similar import, under any Environmental Law.
"Initial Closing" has the meaning set forth in Section 1.2(b) hereof.
"Initial Closing Date" has the meaning set forth in Section 1.2(b)
hereof.
"Initial Shares" has the meaning set forth in Section 1.1 hereof.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security interest of any kind or nature whatsoever (including without
limitation any conditional sale or other title retention agreement, any
financing lease having substantially the same effect as any of the foregoing,
any assignment or other conveyance of any right to receive income and any
assignment of receivables with recourse against the assignor), any filing of a
financing statement as debtor under the Uniform Commercial Code or any similar
statute and any agreement to give or make any of the foregoing.
"Material Adverse Effect" means any event, matter, condition or
circumstance which (i) has or could reasonably be expected to have a material
adverse effect on the assets, properties, liabilities, business, affairs,
results of operations, condition (financial or otherwise) or prospects of (x)
any Subsidiary of the Company which, as of the date any determination is made as
to the existence of a Material Adverse Effect, contributed twenty-five percent
(25%) of the Company's consolidated revenues for the prior fiscal year or (y)
the Company on a consolidated basis or (ii) has or could reasonably be expected
to have a material adverse effect on the ability of the
6
<PAGE> 7
Company to perform its obligations under this Purchase Agreement or the Other
Transaction Documents.
"Other Transaction Documents" means, collectively, the Certificate of
Designations, the Amendment, the Collaboration Agreement, the Registration
Rights Agreement and a side letter from Dr. Shelley A. Harrison of the Company
to Dr. Manfred Bischoff and Mr. Josef Kind of Purchaser (each as amended,
modified or supplemented from time to time) and any other documents, agreements,
instruments or certificates contemplated hereby or thereby.
"Person" or "person" means an individual, corporation, company,
partnership, firm, association, joint venture, trust, unincorporated
organization, government, governmental body, agency, political subdivision or
other entity.
"Plan" means any bonus, incentive compensation, deferred compensation,
pension, profit sharing, retirement, stock purchase, stock option, stock
ownership, stock appreciation rights, phantom stock, leave of absence, layoff,
vacation, day or dependent care, legal services, cafeteria, life, health,
accident, disability, workmen's compensation or other insurance, severance,
separation or other employee benefit plan, practice, policy or arrangement of
any kind, whether written or oral, or whether for the benefit of a single
individual or more than one individual including, but not limited to, any
"employee benefit plan" within the meaning of Section 3(3) of ERISA.
"Purchase Agreement" has the meaning set forth in the first paragraph
hereof.
"Purchase Price" has the meaning set forth in Section 1.2(a) hereof.
"Purchaser" has the meaning set forth in the first paragraph hereof.
"Purchaser Director" has the meaning set forth in Section 8.1(a)
hereof.
"Qualified Holder" has the meaning set forth in Section 7.1 (b) hereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or disposing of a
Hazardous Material into the environment.
"Rule 144" means (i) Rule 144 under the Securities Act as such Rule is
in effect from time to time, and (ii) any successor rule, regulation or law, as
in effect from time to time.
"Rule 144A" means (i) Rule 144A under the Securities Act as such Rule
is in effect from time to time and (ii) any successor rule, regulation or law,
as in effect from time to time.
"Rule 144 Transaction" means a transfer of Common Stock (A) complying
with Rule 144
7
<PAGE> 8
under the Securities Act as such Rule is in effect on the date of such transfer
(but not including a sale other than pursuant to a "brokers transaction" as
defined in clauses (1) and (2) of paragraph (g) of such Rule as in effect on the
date hereof) and (B) occurring at a time when Common Stock are registered
pursuant to Section 12 of the Exchange Act (or any successor to such Section).
"Second Closing" has the meaning set forth in Section 1.2(d) hereof.
"Second Closing Date" has the meaning set forth in Section 1.2(d)
hereof.
"Secretary of State" means the Secretary of State of the State of
Washington.
"Securities Act" means the United States Securities Act of 1933, as
amended from time to time, and the rules, regulations and interpretations
thereunder.
"SEC Documents" has the meaning set forth in Section 5.5(d) hereof.
"Series A Designation" means the Certificate of Designation of Rights,
Terms and Preferences of Series A Junior Participating Preferred Stock of the
Company dated March 26, 1999.
"Shares" has the meaning set forth in Section 1.1 hereof.
"Site" means any of the real properties currently or previously owned,
leased or operated by the Company, any Subsidiary, any predecessors of the
Company or any Subsidiary, or any entities previously owned by the Company or
any Subsidiary, including all soil, subsoil, surface waters and groundwater
thereat.
"Subsequent Shares" has the meaning set forth in Section 1.1 hereof.
"Subsidiary" with respect to any Person, means any corporation,
association or other entity controlled by such Person. For purposes of this
definition, "control" with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise. The term "Subsidiary" or "Subsidiaries"
when used herein without reference to any particular Person, means a Subsidiary
or Subsidiaries of the Company which may now or hereafter exist.
(b) For all purposes of this Purchase Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Purchase Agreement as a whole and
not to any particular Section or other subdivision;
8
<PAGE> 9
(ii) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP (except as
otherwise expressly provided herein);
(iii) all computations provided for herein shall be made in
accordance with GAAP (except as otherwise expressly provided herein);
(iv) any uses of the masculine, feminine or neuter gender
shall also be deemed to include any other gender, as appropriate,
(v) all references herein to actions by the Company or any
Subsidiary, such as "create," "sell," "transfer," "dispose of," etc.,
means such action, whether voluntary or involuntary, by operation of
law or otherwise,
(vi) the exhibits and schedules to this Purchase Agreement
shall be deemed a part of this Purchase Agreement,
(vii) each of the representations and warranties of the
Company contained in Section 5 hereof is separate and is not limited,
qualified or modified by the existence, wording or satisfaction of any
other representation or warranties of the Company in Section 5 or
otherwise,
(viii) each of the covenants of the Company contained in
Sections 7 and 8 hereof or otherwise contained in the Other Transaction
Documents is separate and is not limited or satisfied by the existence,
wording or satisfaction of any other covenant of the Company in
Sections 7 or 8 or otherwise; and
(ix) all references herein (in covenants or otherwise) to any
action(s) which are to be taken (or which are prohibited from being
taken) by any Person, the Company or any Subsidiary shall apply to such
Person, the Company or such Subsidiary, as the case may be, whether
such action is taken directly or indirectly.
SECTION 3. CONDITIONS TO CLOSING
The Purchaser's obligation to purchase the Shares hereunder at a
Closing is subject to satisfaction of the following conditions at or prior to
such Closing (any of which may be waived by the Purchaser).
3.1 Certificate of Designations; Amendment; Collaboration Agreement;
Registration Rights Agreement.
(a) The Articles of Incorporation of the Company shall have been duly
amended by the
9
<PAGE> 10
filing of the Certificate of Designations (and, in the case of the Second
Closing, by the Amendment).
(b) The Company and the Purchaser shall have entered into a Strategic
Collaboration Agreement relating to certain areas of mutual technological
interest dated the date hereof (the "Collaboration Agreement") in the form
attached hereto as Exhibit B.
(c) The Company and the Purchaser shall have entered into a
Registration Rights Agreement dated the date hereof ( the "Registration Rights
Agreement") in the form attached hereto as Exhibit C.
3.2 Accuracy of Representations and Warranties.
The representations and warranties of the Company herein or in any
Other Transaction Document or in any certificate or document delivered pursuant
hereto or thereto shall be correct and complete on and as of the Closing Date
with the same effect as though made on and as of the Closing Date (after giving
effect to the transactions contemplated by this Purchase Agreement).
10
<PAGE> 11
3.3 Compliance with Agreements.
The Company shall have performed and complied with all agreements,
covenants and conditions contained in this Purchase Agreement, the Other
Transaction Documents and any other document contemplated hereby or thereby
which are required to be performed or complied with by the Company on or before
the Closing Date.
3.4 Certificates.
Purchaser shall have received from the Company the following:
(a) a certificate dated the Closing Date and signed by the Chairman or
President and by the Secretary or Assistant Secretary of the Company, to the
effect set forth in Exhibit D-1 hereto certifying as to the fulfillment of the
conditions contained in this Section 3;
(b) a certificate dated the Closing Date and signed by the Chairman or
President and by the Secretary or Assistant Secretary of the Company, to the
effect set forth in Exhibit D-2 hereto, having attached thereto the following:
(i) certified copies of the resolutions duly adopted by the
Board of the Company authorizing the execution, delivery and
performance of this Purchase Agreement, the Other Transaction
Documents, the issuance and sale of the Shares and the consummation of
all other transactions contemplated by this Purchase Agreement and the
Other Transaction Documents;
(ii) certified copies of the Articles of Incorporation of the
Company and each of its Subsidiaries, all amendments thereto and the
By-laws of the Company and each of its Subsidiaries, each as in effect
at the Closing; and
(iii) certificates of good standing of the Company and each of
its Subsidiaries from their respective states of incorporation or
organization.
3.5 Proceedings.
All corporate and other proceedings in connection with the transactions
contemplated by this Purchase Agreement and the Other Transaction Documents, and
all documents incident hereto and thereto, shall be in form and substance
satisfactory to Purchaser and its counsel, and Purchaser shall have received all
such originals or certified or other copies of such documents as Purchaser or
its counsel may reasonably request.
3.6 Legality: Governmental and Other Authorization.
The purchase of and payment for the Shares shall not be prohibited by
any law or
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<PAGE> 12
governmental order, rule, ruling, regulation, release, interpretation or opinion
applicable to Purchaser and shall not subject Purchaser to any penalty, tax,
liability or other onerous condition. The Consents set forth in Schedule 5.4
hereto have been obtained or made by the Company and shall be in full force and
effect (and all such Consents shall have been delivered to Purchaser).
3.7 No Change in Law, etc.
No legislation, order, rule, ruling or regulation shall have been
proposed, enacted or made by or on behalf of any Governmental Authority, and no
legislation shall have been introduced in either House of Congress, and no
investigation by any Governmental Authority shall have been commenced or
threatened, and no action, suit or proceeding shall have been commenced before,
and no decision shall have been rendered by, any court, other Governmental
Authority or arbitrator, which, in any such case, in Purchaser's reasonable
judgment could adversely affect, restrain, prevent or change the transactions
contemplated by this Purchase Agreement or the Other Transaction Documents
(including without limitation the issuance of the Shares) or materially and
adversely affect the assets, properties, liabilities, business, affairs, results
of operations, condition (financial or otherwise) or prospects of the Company on
a consolidated basis.
3.8 Opinion of Counsel.
The Purchaser shall have received an opinion, dated the Closing Date
and addressed to Purchaser, of Dewey Ballantine LLP, counsel for the Company.
Such opinion shall be in form and substance satisfactory to Purchaser and shall
be to the effect set forth in Exhibit E hereto. The Company hereby instructs
such counsel to prepare and deliver such opinion to Purchaser pursuant to this
Section 2.8 and agrees that Purchaser may rely on the opinion so delivered.
3.9 Company Financial Condition; No Material Adverse Effect.
Since March 31, 1999, no event or events shall have occurred, and no
condition or conditions shall exist, which could have a Material Adverse Effect.
3.10 Other Documents and Opinions.
Purchaser shall have received such other documents and opinions, in
form and substance satisfactory to Purchaser and its counsel, relating to
matters incident to the transactions contemplated hereby, as Purchaser may
reasonably request.
3.11 Purchaser Director.
The Purchaser Director shall upon closing be elected to the Board of
Directors of the Company, and the Purchaser Director shall, upon closing, be
appointed as a member of the Executive Committee of the Board.
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<PAGE> 13
SECTION 4. COMPANY'S CONDITIONS TO CLOSING
The Company's obligations to issue and sell to Purchaser the Shares to
be issued by it on a Closing Date are subject to satisfaction of the following
conditions at Closing:
4.1 Collaboration Agreement; Registration Rights Agreement.
(a) The Company and the Purchaser shall have entered into the Strategic
Collaboration Agreement.
(b) The Company and the Purchaser shall have entered into the
Registration Rights Agreement.
4.2 Accuracy of Representations and Warranties.
The representations and warranties of Purchaser in Section 6 hereof
shall be correct and complete on and as of the Closing Date with the same effect
as though made on and as of the Closing Date.
4.3 Compliance with Agreements.
The Purchaser shall have performed and complied with all agreements,
covenants and conditions contained in this Purchase Agreement, the Other
Transaction Documents and any other document contemplated hereby or thereby
which are required to be performed or complied with by the Purchaser on or
before the Closing Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as follows as of the
date hereof and as of each Closing Date.
5.1 Corporate Existence, Power and Authority.
(a) The Company and each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its state or other
jurisdiction of incorporation. The Company and each Subsidiary is duly
qualified, licensed and authorized to do business and is in good standing in
each jurisdiction in which it owns or leases any material property or in which
the conduct of its business requires it to be so qualified or licensed.
(b) No proceeding has been commenced looking toward the dissolution or
merger of the Company or any Subsidiary. Except as contemplated by this
Agreement, no proceeding has been commenced looking toward the amendment of the
respective certificate or articles of incorporation of the Company or any
Subsidiary (as the case may be). Neither the Company nor any Subsidiary is in
violation in any respect of its certificate or articles of incorporation or
by-
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<PAGE> 14
laws.
(c) The Company and each Subsidiary has all requisite power, authority
(corporate and other) and legal right to own or to hold under lease and to
operate the properties it owns or holds and to conduct its business as now being
conducted.
(d) The Company has all requisite power, authority (corporate and
other) and legal right to execute, deliver, enter into, consummate and perform
the transactions contemplated by this Purchase Agreement and each Other
Transaction Document (including without limitation the issuance by the Company
of the Shares). The execution, delivery and performance by the Company of this
Purchase Agreement and each Other Transaction Document (including without
limitation the issuance of the Shares) have been duly authorized by all required
corporate and other actions. The Company has duly executed and delivered this
Purchase Agreement and each Other Transaction Document and, at Closing, will
duly deliver the Shares. This Purchase Agreement and each Other Transaction
Document constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms.
5.2 Capitalization.
(a) The authorized capital stock of the Company consists of: (i)
30,000,000 shares of Common Stock, par value $0.01 per share; and (ii) 1,000,000
shares of serial preferred stock, par value $0.01 per share, of which 25,000
shares were designated Series A Junior Participating Preferred Stock pursuant to
the Series A Designation and, giving effect to the Certificate of Designations,
975,000 are being designated Series B Senior Convertible Preferred Stock.
Following filing of the Amendment on or before the Second Closing Date, the
number of shares of authorized serial preferred stock will be increased to
2,500,000, of which 1,333,334 will be designated Series B Senior Convertible
Preferred Stock. Item (a) of Schedule 5.2 sets forth the number of shares of
Common Stock issued and outstanding on the Closing Date. At Closing, all of such
shares of capital stock will be duly authorized and validly issued and will be
outstanding and fully paid and non-assessable. No shares of preferred stock
(other than the Shares being issued to Purchaser) of the Company will be issued
and outstanding on either Closing Date. The Shares will, when issued, be duly
authorized, validly issued, fully paid and non-assessable. None of the shares of
the Company's capital stock or other securities which will be outstanding at a
Closing will be subject to preemptive rights or provide the holders thereof with
any preemptive rights with respect to any issuance of capital stock. On each
Closing Date, no other shares of capital stock of the Company will be
outstanding or held in the Company's treasury.
(b) Except as set forth in item (b) of Schedule 5.2, and except for
Common Stock issuable upon conversion of the Shares (the "underlying Common
Stock"), no shares of the Company's Common Stock are reserved for issuance by
the Company. The underlying Common Stock is duly authorized and reserved for
issuance and, upon conversion of the Shares will be validly issued, fully paid
and non-assessable, free and clear of any and all liens, claims and
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<PAGE> 15
encumbrances, and entitled to be traded on the National Association of
Securities Dealers Automated Quotation system National Market ("NASDAQ"), and
the holders of such underlying Common Stock shall be entitled to all rights and
preferences accorded to a holder of Common Stock.
(c) Except as set forth in item (c) of Schedule 5.2, there are no
outstanding options, warrants, subscriptions, rights, calls, convertible
securities or other agreements or plans or any provision of law under which the
Company may become obligated to issue, sell or transfer shares of its capital
stock or other securities.
(d) Except as set forth in item (d) of Schedule 5.2, and except as
provided in the Registration Rights Agreement, there are no outstanding
registration rights with respect to any capital stock of the Company or of any
Subsidiary.
(e) Except as provided in item (e) of Schedule 5.2, there are no
shareholder or voting agreements, voting trusts, proxies or other agreements or
understandings with respect to the voting of any capital stock of the Company or
any Subsidiary.
(f) Except as set forth in item (f) of Schedule 5.2, and except as
provided by the terms of the Certificate of Designations, there are no
anti-dilution protections or other adjustment provisions in existence with
respect to any outstanding capital stock of the Company.
(g) The Certificate of Designations has been duly adopted by the
Company and filed with the Secretary of State and is fully effective as an
amendment to the Company's Articles of Incorporation. The Amendment has been
duly adopted by the Board and, upon approval by the Company's shareholders and
filing thereof with the Secretary of State, will be fully effective as a further
amendment to the Company's Articles of Incorporation. The Initial Shares have,
and upon filing of the Amendment the Subsequent Shares will have, all the
rights, priorities and terms set forth in the Certificate of Designations.
5.3 Subsidiaries.
(a) The Company's only Subsidiaries on each Closing Date will be those
set forth on Schedule 5.3 hereto. Such Subsidiaries are owned by the Company as
set forth in Schedule 5.3 hereto. Neither the Company nor any Subsidiary owns
any equity or debt securities in any other Person.
(b) All outstanding capital stock of the Subsidiaries has been duly
authorized and validly issued and is fully paid and non-assessable and is owned
beneficially and of record by the Company free and clear of all Liens, options
or claims of any kind. There are no outstanding options, warrants,
subscriptions, rights, convertible securities or other agreements or plans under
which any Subsidiary may become obligated to issue or sell shares of its capital
stock or other securities.
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5.4 No Defaults or Conflicts.
(a) Neither the Company nor any of its Subsidiaries is in material
violation of or material default in any respect under any indenture, agreement
or instrument to which it is a party or by which it or its properties may be
bound. Neither the Company nor any of its Subsidiaries is in default under any
order, writ, injunction, judgment or decree of any court or other Governmental
Authority or arbitrator(s) which default could have a Material Adverse Effect.
(b) The execution, delivery and performance by the Company of this
Purchase Agreement and each of the Other Transaction Documents to which it is a
party, and any of the transactions contemplated hereby or thereby (including
without limitation the issuance of the Shares as contemplated herein) does not
and will not (i) violate or conflict with, result in a breach of, or constitute
a default under (with or without the giving of notice or the passage of time or
both) any provision of (A) the respective articles or certificate of
incorporation or by-laws of the Company or any of its Subsidiaries or (B) any
law, rule, regulation or order of any Governmental Authority, or any order,
judgment, writ, injunction, decree, award or other action of any court or
Governmental Authority or arbitrator(s), or (C) any material agreement,
mortgage, indenture, franchise, license, permit or other instrument applicable
to the Company or any of its Subsidiaries or any of their respective properties,
(ii) result in the creation of any Lien upon any of the Company's or any
Subsidiary's properties, assets or revenues, (iii) except as set forth in
Schedule 5.4 hereto, require the consent, waiver or approval of, or license,
permit, order or authorization of, or the declaration, registration,
qualification or filing with, any Governmental Authority or other Person
(collectively, "Consents"), or (iv) except as set forth in Schedule 5.4 hereto,
cause anti-dilution clauses of any outstanding securities to become operative or
give rise to any preemptive rights.
5.5 Disclosure Materials: Other Information.
(a) The Company has previously furnished to Purchaser the following
material (the "Disclosure Material"): (i) audited consolidated financial
statements of the Company and its Subsidiaries consisting of consolidated
balance sheets as at June 30, 1998 and June 30, 1997 and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for the fiscal years ended June 30, 1998 and June 30, 1997 and the nine
months ended June 30, 1996 and the related notes thereto, all of which
statements have been certified by KPMG Peat Marwick LLP, independent certified
public accountants; (ii) unaudited consolidated financial statements of the
Company consisting of consolidated balance sheets as at March 31, 1999 and the
related consolidated statements of income, shareholders' equity and cash flows
for the three and nine-month periods then ended and the related notes thereto;
(iii) the other financial information described in Schedule 5.5(a)(iii); and
(iv) the Company's Form 10-K for the year ended June 30, 1998, Form 10-Q for the
fiscal quarters ended September 30, 1998, December 31, 1998 and March 31, 1999
and all other reports, schedules, forms, statements and other documents filed by
the Company with the Commission since June 30, 1998 (in each case, as amended
since the time
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<PAGE> 17
of filing). The audited and unaudited financial statements referred to in the
preceding clauses (i) and (ii) above (including in each case the related notes
and schedules) fairly present the financial condition of the Company and its
Subsidiaries as of the respective dates thereof and the results of the
operations of the Company and its Subsidiaries for such periods and have been
prepared in accordance with GAAP, except that any such unaudited statements may
omit notes and may be subject to normal year-end adjustments.
(b) Since March 31, 1999, (i) the business of the Company and its
Subsidiaries has been conducted in the ordinary course and (ii) except as set
forth in Schedule 5.5, there has occurred no event that could reasonably be
expected to have a Material Adverse Effect.
(c) Neither the Company nor any Subsidiary is aware of any obligations
or liabilities, contingent or otherwise (including without limitation any tax
liabilities due or to become due), of the Company or of the Subsidiaries that
have not been fully disclosed and adequately provided for in the financial
statements referred to in Section 5.5(a) above or otherwise disclosed in
Schedule 5.5 hereto, other than liabilities arising in the ordinary course of
business subsequent to March 31, 1999, none of which would have a Material
Adverse Effect.
(d) The Company has filed all required reports, schedules, forms,
statements and other documents with the Commission since June 30, 1998 (such
reports, schedules, forms, statements and other documents, together with all
registration statements filed by the Company or its Subsidiaries with the
Commission since June 30, 1998, in each case, as such documents have been
amended since the time of their filing) (all such documents referred to herein
as the "SEC Documents"). As of their respective filing dates (or, if amended, as
of the date of the filing of such amendment), the SEC Documents complied in all
material respects with the requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations of the Commission
promulgated thereunder applicable to such SEC Documents. None of the SEC
Documents as of such dates contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) The financial information referred to in Section 5.5(a)(iii) was
prepared in good faith and the Company reasonably believes that as of the
respective dates of their preparation there was a reasonable basis for such
financial information, subject to the assumptions made in their preparation and
the qualifications set forth therein, and nothing has come to the Company's
attention to cause it to believe that the financial information and assumptions
upon which it was predicated were unreasonable as of the respective preparation
dates thereof.
(f) Nothing has come to the attention of the Company or any Subsidiary
that would cause it to believe that any of the Disclosure Material contained or
contains a false or misleading statement of a material fact or omits to state
any material fact necessary in order to make the statements made in such
material, in light of the circumstances under which they were made, not
misleading, provided that the financial information items referred to in Section
5.5(a)(iii) have not been updated since their respective dates of preparation.
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5.6 Litigation.
Except as set forth in Schedule 5.6, there is no action, suit,
arbitration, proceeding, investigation or claim pending or, to the knowledge of
the Company or its Subsidiaries, threatened, in law, equity or otherwise before
any court, administrative agency, Governmental Authority or arbitrator which
either (i) questions the validity of this Purchase Agreement or any of the Other
Transaction Documents or any action taken or to be taken pursuant hereto or
thereto, (ii) could have a Material Adverse Effect, or (iii) would be required
to be, but has not previously been, described in any filing by the Company with
the Commission. The Company has no knowledge of any unasserted claim that, if
asserted, could have a Material Adverse Effect.
5.7 Taxes.
The Company and each Subsidiary has duly and timely filed all federal,
state, local, foreign and other tax returns, statements, forms and reports, and
any other returns (including information returns), statements, forms and reports
with all Governmental Authorities required to be filed by it and all such
returns are complete and correct. The Company and each Subsidiary has paid or
caused to be paid all taxes, fees, assessments and other governmental charges or
levies (including interest and penalties) that are due and payable (whether or
not shown on any such return), except those which are being contested by it in
good faith by appropriate proceedings and in respect of which adequate reserves
are being maintained on its books in accordance with GAAP. The Company and each
Subsidiary has withheld and paid all taxes required to have been withheld and
paid, including taxes in connection with amounts paid or owing to any employee,
creditor, independent contractor or other third party. Neither the Company nor
any Subsidiary has any material liabilities for taxes other than those incurred
in the ordinary course of business and in respect of which adequate reserves are
being maintained by it in accordance with GAAP.
5.8 Employee Benefit Plans.
The transactions contemplated by this Agreement will not trigger or
cause to be made or provided in any way (either directly or indirectly) any
payments, or result in the acceleration or other increase in any vesting of
rights or other benefits of any kind whatsoever, under (i) any Benefit Plan
(including but not limited to the Spacehab, Incorporated Directors' Stock Option
Plan or 1994 Stock Incentive Plan), and (ii) any employment, consulting,
severance or similar agreements or arrangements, whether formal or informal,
whether written or oral.
5.9 Legal Compliance.
(a) The Company and each Subsidiary has complied with all applicable
constitutions, statutes, laws, rules, regulations, orders, licenses, judgments,
writs, injunctions, decrees, rulings, charges or demands, except to the extent
that the failure to so comply could not have a Material Adverse Effect.
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(b) There are no adverse orders, judgments, writs, injunctions,
decrees, rulings, charges or demands of any court or administrative body,
domestic or foreign, or of any other Governmental Authority, outstanding against
the Company or any Subsidiary, which would cause a Material Adverse Effect.
5.10 Environmental Compliance.
(a) The Company and each Subsidiary has obtained and holds all
necessary Environmental Permits.
(b) The Company and each Subsidiary is in compliance in all material
respects with all terms, conditions and provisions of all applicable (i)
Environmental Permits, and (ii) Environmental Laws.
(c) There are no past, pending, or to the knowledge of the Company or
any Subsidiary, threatened Environmental Claims against the Company or any
Subsidiary, and neither the Company nor any Subsidiary is aware of any facts or
circumstances which could reasonably be expected to form the basis for any
Environmental Claim against the Company.
(d) No Releases of Hazardous Materials have occurred at, from, in, to,
on, or under any Site and, except as set forth in Schedule 5.10 hereto, no
Hazardous Materials are present in, on, about or migrating to or from any Site
that could give rise to an Environmental Claim against the Company or any
Subsidiary.
(e) Except as set forth in Schedule 5.10, neither the Company, any
Subsidiary, any predecessor of the Company or any Subsidiary, nor any entity
previously owned by the Company or any Subsidiary, has transported or arranged
for the treatment, storage, handling, disposal, or transportation of any
Hazardous Material to any off-Site location which could result in an
Environmental Claim against the Company or any Subsidiary.
(f) There are no Liens relating to an Environmental Claim on the assets
or property of the Company or any Subsidiary arising under or pursuant to any
Environmental Law on any Site and, to the Company's or any Subsidiary's
knowledge, there are no facts, circumstances, or conditions that could
reasonably be expected to restrict, encumber, or result in the imposition of
special conditions under any Environmental Law with respect to the ownership,
occupancy, development, use, or transferability of any Site.
(g) Except as set forth in Schedule 5.10, there are no (i) underground
storage tanks, active or abandoned, (ii) polychlorinated biphenyl containing
equipment, or (iii) asbestos containing material at any Site, which could result
in an Environmental Claim against the Company or any Subsidiary.
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(h) Except as set forth in Schedule 5.10, there have been no
environmental investigations, studies, audits, tests, reviews or other analyses
conducted by, on behalf of, or which are in the possession of the Company or any
Subsidiary with respect to any Site.
5.11 Outstanding Securities.
All securities (as defined in Section 2(l) of the Securities Act) of
the Company have been offered, issued, sold and delivered in compliance with, or
pursuant to exemptions from, all applicable federal and state laws, and the
rules and regulations of federal and state regulatory bodies governing the
offering, issuance, sale and delivery of securities.
5.12 Permits, Filings, Licenses and Approvals: Intellectual
Property and Other Rights
The Company and each Subsidiary owns or possesses and holds free from
burdensome restrictions all franchises, licenses, permits, consents, approvals
and other authorizations (governmental or otherwise), patents, patent rights,
trademarks, trademark rights, tradenames, tradename rights and copyrights, and
all rights and privileges with respect to any of the foregoing, as are necessary
for the conduct of its business as now being conducted and as proposed to be
conducted. Except as set forth in Schedule 5.12, neither the Company nor any
Subsidiary is in default in any material respect under any of such franchises,
licenses, permits, consents, approvals or other authority. The rights of (and
use by) the Company and each Subsidiary with respect to such or any other
patents, patent rights, trademarks, trademark rights, tradenames, tradename
rights or copyrights do not, to the best knowledge of the Company, conflict with
or infringe any rights of others and no such claim of conflict or infringement
has been asserted by any Person.
5.13 Properties.
(a) Except as set forth in Schedule 5.13, the Company does not own, and
no Subsidiary owns, any real property. The Company and each Subsidiary has good
and marketable title to its assets and other properties (including tangible and
intangible personal property) free and clear of all Liens other than Liens
disclosed in the most recent financial statements of the Company referred to in
Section 5.5(a) and other Liens which could not result in a Material Adverse
Effect. Certain real property used by the Company or its Subsidiaries in the
conduct of their respective businesses is held under lease, as identified in
Schedule 5.13 hereto.
(b) The Company and each Subsidiary has the right to and does enjoy
peaceful and undisturbed possession under all leases pursuant to which it leases
property. Neither the Company nor any Subsidiary is aware of any pending or
threatened claim or action by any lessor of any such property to terminate any
such lease. All such leases are valid and in full force and effect, and none of
such leases is in default.
(c) All of the buildings, machinery, equipment and other tangible
assets necessary for the conduct of the Company's business are in good condition
and repair, ordinary wear and tear
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excepted, and are usable in the ordinary course of business. There are no
defects in such assets or other conditions relating thereto which, in the
aggregate, materially adversely affect the operation or value of such assets.
The Company owns, or leases under valid leases, all buildings, machinery,
equipment and other tangible assets necessary for the conduct of its business.
5.14 Insurance Coverage.
There is in full force and effect one or more policies of insurance
issued by financially sound and reputable insurance companies with an A.M. Best
rating of A - or better, insuring (i) the Company and its Subsidiaries, their
properties and business and (ii) the directors and executive officers of the
Company and its Subsidiaries, against such losses and risks, and in such
amounts, as are customary in the case of corporations of established reputation
engaged in the same or similar businesses of similar size and similarly
situated. The Company and its Subsidiaries have not been refused any insurance
coverage, and existing insurance coverage of directors and executive officers of
the Company and its Subsidiaries sought or applied for, and the Company and its
Subsidiaries have no reason to believe that they will be unable to renew their
existing insurance coverage upon terms at least as favorable as those presently
in effect.
5.15 Key Employees: Labor Matters.
The Company and each Subsidiary has good relationships with its
employees and has not experienced and does not expect to experience any
substantial labor problems. Neither the Company nor any Subsidiary has any
knowledge as to any intentions of any key employee or any group of employees to
leave the employ of the Company or of any Subsidiary. No employee of the Company
or any Subsidiary is represented by a labor union or organization, no labor
union or organization has been certified or recognized as a representative of
any such employee, there are no pending or, to the knowledge of the Company,
threatened representation campaigns concerning union representation involving
any employee or efforts of any labor union or organization (or representatives
thereof) to organize any employees.
5.16 Information True and Accurate.
None of the representations or warranties made by the Company or any
Subsidiary in this Purchase Agreement (including all exhibits and schedules
hereto) or in any Other Transaction Document, as of the date of such
representations and warranties and as of each Closing Date, and none of the
statements contained in each exhibit, schedule or report or any other
information furnished by or on behalf of the Company or any Subsidiary to
Purchaser in connection with this Purchase Agreement or any Other Transaction
Document as of the respective dates of such materials and as of each Closing
Date, contains any untrue statement of a material fact or omits any material
fact required to be stated therein or necessary to make the statements made
therein, in the light of the circumstances under which they are made, not
misleading.
5.17 No Brokers or Finders.
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None of the Company or its Subsidiaries has contracted for or otherwise
arranged for the services of any Person who has, or as a result of the
transactions contemplated herein will have, any right or valid claim against the
Company or any of its Subsidiaries or Purchaser for any commission, fee or other
compensation as a finder or broker, or in any similar capacity.
5.18 Interested Party Transactions.
Except as disclosed in the Company's most recent proxy statement filed
with the Commission or Schedule 5.18, no executive officer or director of the
Company, or shareholder who is known to the Company to own of record or
beneficially more than five percent (5%) of the Company's Common Stock, or
immediate family member of any of the foregoing, has or has had, or will have
either directly or indirectly, a material interest in any transaction, series of
similar transactions or currently proposed transaction or series of similar
transactions, to which the Company or any of its Subsidiaries is, was or is to
be a party, in which the amount involved exceeds $60,000, except for normal and
customary employment, severance and related matters.
5.19 Offering of Securities.
Neither the Company, nor any agent or other Person acting on its behalf
has, directly or indirectly, (i) offered any of the Shares (A) by any form of
general solicitation or general advertising (within the meaning of Regulation D
under the Securities Act) or (B) for sale to or solicited offers to buy any
thereof from, or otherwise approached or negotiated with respect thereto with,
any person other than Purchaser and other institutional investors each of which
the Company reasonably believed was an "accredited investor" within the meaning
of Regulation D under the Securities Act, or (ii) done or caused to be done (or
has omitted to do or to cause to be done) any act which act (or which omission)
would result in bringing the issuance or sale of the Shares within the
provisions of Section 5 of the Securities Act or the filing, notification or
reporting provisions of any state securities laws.
SECTION 6. REPRESENTATIONS OF THE PURCHASER
Purchaser hereby makes the representations and warranties to the
Company contained in this Section 6.
6.1 Corporate Power and Authority.
Purchaser is duly organized, validly existing and in good standing
under the laws of Germany and has all requisite power, authority and legal right
to execute, deliver, enter into, consummate and perform this Purchase Agreement
and each Other Transaction Document to which it is a party. The execution,
delivery and performance of this Purchase Agreement and each Other Transaction
Document (to the extent to which it is a party thereto) by Purchaser have been
duly authorized by all required corporate actions. Purchaser has duly executed
and delivered this
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Purchase Agreement and each Other Transaction Document to which it is a party,
and this Purchase Agreement and each Other Transaction Document (to the extent
to which it is a party thereto) constitutes the legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to the rights of creditors generally.
6.2 Accredited Investor.
Purchaser is purchasing the Shares to be purchased by it for its own
account, for investment purposes and not with a present view to any distribution
thereof in violation of any applicable securities laws. It is understood that
the disposition of Purchaser's property shall at all times be within Purchaser's
control. If Purchaser should in the future decide to dispose of any of its
Shares, it is understood that it may do so but only in compliance with the
Securities Act and applicable securities laws. Purchaser is as of the date
hereof and will be as of each Closing Date an "accredited investor" as defined
in Rule 501 (a) under the Securities Act. Purchaser agrees that the Company may
place a customary Securities Act legend on the certificate(s) representing the
Shares.
SECTION 7. COVENANTS OF THE COMPANY REGARDING CERTAIN INFORMATION
7.1 Financial and Business Information.
(a) The Company will maintain, and cause each Subsidiary to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with GAAP.
(b) The Company will deliver the following to Purchaser, so long as
Purchaser continues to hold at least thirty percent (30%) of the Shares and/or
Common Stock issuable upon conversion of the Shares (in which event Purchaser
shall be deemed to be a "Qualified Holder"):
(i) Budgets. As soon as practicable prior to the beginning of
each fiscal year of the Company, a budget for such fiscal year prepared
on a quarterly basis regarding the Company's operations and capital
expenditures on a consolidated basis and any material revisions or
amendments made by the Company to any budget delivered under this
clause;
(ii) Reports. As soon as practicable, copies of any annual,
special or interim audit reports or management or comment letters with
respect to the Company or any of its Subsidiaries or their operations
submitted to the Company by independent public accountants;
(iii) Public Filings. As soon as practicable, copies of (x)
all financial statements, proxy materials or reports sent to the
Company's or any Subsidiary's stockholders, (y) any public or press
releases and (z) all reports, forms, registration statements or other
documents filed with the Commission pursuant to the Securities Act
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or the Exchange Act (which filings pursuant to the Exchange Act the
Company covenants and agrees shall be made on a timely basis);
(iv) Board Materials. As soon as practicable and without
duplication of any of the above items, all materials furnished, from
time to time, to directors of the Company and any Subsidiary, as the
case may be (including without limitation all communications and
information furnished to such directors), and copies of minutes of
meetings of the Board (and of any executive committees) except to the
extent that such materials have been provided to any person appointed
or designated by the Qualified Holder as a director of the Company
pursuant to this Agreement; provided, that the Qualified Holder will
not use any of such documents, reports or other information for any
reason or purpose other than to review the affairs and financial
condition of the Company in connection with such Qualified Holder's
investment in the Company and the compliance by the Company with the
terms and provisions of this Purchase Agreement and the Other
Transaction Documents and will hold in confidence, unless required to
disclose by judicial, regulatory or administrative process or by other
requirements of law, all documents, reports or other information
obtained from the Company, except to the extent that such documents,
reports and other information have been (i) previously known on a
nonconfidential basis by such Qualified Holder, (ii) in the public
domain through no fault of such Qualified Holder or (iii) subsequent
lawfully acquired by such Qualified Holder from sources other than the
Company who, to the knowledge of such Qualified Holder, had such
documents, reports and other information without any breach of any
obligation of confidentiality; provided that any such Qualified Holder
may disclose such documents, reports and other information to officers,
directors, employees, accountants, counsel, consultants, advisors and
agents of such Qualified Holder in connection with such Qualified
Holder's review of such documents, reports or other information so long
as such Persons are informed by such Qualified Holder to treat such
information confidentially and not to use any of such documents,
reports or other information for any reason or purpose other than in
connection with such Qualified Holder's review;
(v) Other Materials. As soon as practicable and without
duplication of any of the above items, all materials furnished, from
time to time, by or on behalf of the Company to any holders of
indebtedness or of capital stock of the Company which relates to a
default or prospective default thereunder or a proposed waiver of any
covenant; and
(vi) Requested Information. As soon as practicable, such other
information, as may reasonably be requested by the Qualified Holder,
regarding the assets, properties, liabilities, business, affairs,
results of operations, conditions (financial or otherwise) or prospects
of the Company or any Subsidiary.
All such financial statements shall be prepared in accordance with GAAP (except
for any change in accounting principles specified in the accompanying
certificate and except that any interim financial statements may omit notes and
may be subject to normal year-end adjustments) and shall
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be true and correct in all material respects as of the date and for the periods
stated therein.
(c) Without limiting the foregoing provisions of this Section 7.1, the
Company agrees that, if expressly requested in writing by the Qualified Holder,
it will not deliver to such holder (until otherwise instructed by such holder)
(x) any information or materials regarding the Company or any Subsidiary
(whether described in this Section 7.1 or otherwise) that is non-public and (y)
any information (whether or not included in clause (vi)) which such holder
specifies it does not want to receive.
7.2 Inspection.
The Company will permit Qualified Holder and any authorized
representative of Qualified Holder to visit and inspect any of the properties of
the Company and its Subsidiaries, to examine their respective books and records
and to discuss with their officers their books and records and the assets,
properties, liabilities, business, affairs, results of operations, condition
(financial or otherwise) or prospects of the Company or any Subsidiary, as may
be reasonably requested.
SECTION 8. OTHER COVENANTS OF THE COMPANY
The Company covenants and agrees as follows (for so long as Purchaser
is a Qualified Holder in the case of Sections 8.1, 8.2, 8.3 and 8.4):
8.1 Purchaser Director.
(a) Purchaser shall be entitled to designate one (1) individual to
serve as a member of the Board (such director referred to herein as the
"Purchaser Director"). The Purchaser Director shall be an employee, officer or
director of Purchaser or of an Affiliate of Purchaser. The Purchaser Director
shall be elected pursuant to Section 8.1(b) hereby. Upon the expiration of the
term of such Purchaser Director, a Purchaser Director shall be designated and
elected for successive terms pursuant to the provisions hereof.
(b) The Company agrees that it shall take all actions within its power
to facilitate the election of the Purchaser Director and to cause the Purchaser
Director to be appointed as a member of the Executive Committee of the Board,
including without limitation recommending the election of such Purchaser
Director as is designated by Purchaser from time to time. Such election shall be
pursuant to the provisions of the Certificate of Designations while Shares
remain outstanding. Following conversion of all of the Shares into Common Stock,
such election shall be by the stockholders of the Company at any annual meeting
or special meeting of stockholders (or, in the case of a vacancy in the
Purchaser Director, by election of the remaining directors). The Company shall,
if requested by Purchaser, take all actions within its power to cause the
removal, with or without cause, of any Purchaser Director.
(c) Any action taken by a Purchaser Director in his capacity as a
director of the
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Company (such as approving or authorizing transactions, adopting resolutions,
etc.) shall be considered to be an action taken by such director solely in his
capacity as a director and not in any other capacity and shall not be construed
as, considered to be or deemed to be an action taken by Purchaser and such
action shall not in any way bind, obligate, estop, waive the rights of or
otherwise affect in any way Purchaser (in its capacity as stockholder or
otherwise) or the director in any capacity other than as director of the
Company.
8.2 Amendment. The Company agrees that at the next annual stockholders
meeting of the Company (scheduled for October 1999) it will recommend to its
stockholders, in the proxy statement to be distributed in connection with such
meeting, that the Articles be amended to increase the authorized shares of
Preferred Stock by 1,500,000, of which 358,334 represent the Subsequent Shares.
The Company will use its best efforts to hold such meeting by October 31, 1999
and, on the Second Closing Date, will file Articles of Amendment (the
"Amendment") reflecting such amendment to the Articles of Incorporation.
8.3 Listing of Shares.
The Company will take all such actions as may be necessary, from time
to time, to maintain the listing of its Common Stock on The National Association
of Securities Dealers, Inc. Automated Quotation System (the "Nasdaq System").
8.4 Exchange Act Registration.
(a) The Company will maintain effective a registration statement
(containing such information and documents as the Commission shall specify and
otherwise complying with the Exchange Act), under Section 12(b) or Section
12(g), whichever is applicable, of the Exchange Act, with respect to the
Company's Common Stock, and the Company will file on time such information,
documents and reports as the Commission may require or prescribe for companies
whose stock has been registered pursuant to such Section 12(b) or Section 12(g),
whichever is applicable.
(b) The Company will make whatever other filings with the Commission,
or otherwise make generally available to the public such financial and other
information, as Purchaser may deem reasonably necessary or desirable in order to
enable Purchaser to be permitted to sell Common Stock issued or issuable upon
exercise of the Shares pursuant to the provisions of Rule 144.
8.5 Delivery of Information for Rule 144A Transactions.
If Purchaser proposes to transfer any Shares or underlying Common Stock
pursuant to Rule 144A, the Company agrees to provide (upon the request of
Purchaser or the prospective transferee) to Purchaser and (if requested) to the
prospective transferee any financial or other information concerning the Company
and its Subsidiaries which is required to be delivered by
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Purchaser to any transferee of such Shares or underlying Common Stock pursuant
to Rule 144A.
8.6 Press Releases.
The Company shall submit any proposed press release, media alert,
public announcement or other similar notice related to this Purchase Agreement
or any Other Transaction Document, or any transaction contemplated hereby or
thereby, to Purchaser for its approval (which approval shall not be unreasonably
withheld) not less than three (3) Business Days (or such shorter period as may
be mandated for regulatory purposes) prior to sending any such release, alert,
announcement or notice. Purchaser shall provide the Company with comments with
respect thereto, which comments shall be duly considered (and not unreasonably
rejected) by the Company and its counsel.
8.7 Private Placement Status.
Neither the Company nor any agent nor other Person acting on the
Company's behalf will do or cause to be done (or will omit to do or to cause to
be done) any act which (or which omission) would result in bringing the issuance
or sale of the Shares or underlying Common Stock within the provisions of
Section 5 of the Securities Act or the filing, notification or reporting
requirements of any state securities law (other than in accordance with a
registration and qualification of Common Stock under the Registration Rights
Agreement).
SECTION 9. AMENDMENT OF AGREEMENT
This Purchase Agreement may be amended or modified only by an
instrument in writing executed by the Company and Purchaser.
SECTION 10. REMEDIES
(a) The Company shall indemnify Purchaser and its officers, directors,
employees, agents and stockholders (collectively, the "Indemnitees") and hold
them harmless against any loss, liability, deficiency, damage, expense or cost
(including reasonable legal expenses) (collectively "Losses"), which any
Indemnitee may suffer, sustain or become subject to, directly or indirectly as a
result of (i) any misrepresentation in or breach any of the representations and
warranties of the Company contained in this Agreement or in any Other
Transaction Documents or (ii) any breach of, or failure to perform, any
agreement or covenant of the Company contained in this Agreement or any of the
Other Transaction Documents.
(b) In the case of a breach of any representation or warranty, or
failure to perform any of the agreements or covenants of the Company or any
Subsidiary contained in this Purchase Agreement or the Registration Rights
Agreement the Purchaser may proceed to protect and enforce its rights by an
action at law, suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement or covenant contained herein or therein or
for an
27
<PAGE> 28
injunction against a violation of any of the terms hereof or thereof or in aid
of the exercise of any power granted hereby or thereby or by law or for any
other remedy (including without limitation damages).
(c) No course of dealing and no delay on the part of any party to this
Purchase Agreement in exercising any rights or remedies shall operate as a
waiver thereof or otherwise prejudice such party's rights. No right or remedy
conferred hereby or by the Other Transaction Documents shall be exclusive of any
other right or remedy referred to herein or therein or available at law, in
equity, by statute or otherwise.
(d) Purchaser shall, in addition to other remedies provided by law,
have the right and remedy to have the provisions of this Purchase Agreement or
the Registration Rights Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any breach or
threatened breach of the provisions of this Purchase Agreement or the
Registration Rights Agreement will cause irreparable injury to Purchaser and
that money damages will not provide an adequate remedy. Nothing contained herein
shall be construed as prohibiting Purchaser from pursuing any other remedies
available to such holder for such breach or threatened breach, including without
limitation the recovery of damages from the Company.
SECTION 11. RESTRICTIONS ON TRANSFER
(a) Purchaser, by acceptance thereof, agrees that it will not sell or
otherwise dispose of any Shares or underlying Common Stock unless (i) such
Shares have been registered under the Securities Act and, to the extent
required, under any applicable state securities laws, (ii) such Shares or
underlying Common Stock are sold in accordance with the applicable requirements
and limitations of Rule 144 or Rule 144A or another exemption from registration
and any applicable state securities laws, (iii) if the Company has so requested,
the Company has been furnished with an opinion, in form and substance reasonably
satisfactory to the Company, from counsel to Purchaser to the effect that
registration under the Securities Act is not required for the transfer as
proposed (provided that such opinion may be conditioned upon the transferee's
assuming the obligations of a holder of Shares or underlying Common Stock under
this Section) or (iv) the Company has been furnished with a letter from the
Division of Corporate Finance of the Commission to the effect that such Division
would not recommend any action to the Commission if such proposed transfer were
effected without a registration statement effective under the Securities Act.
The Company agrees that within five (5) Business Days after receipt of any
opinion referred to in (iii) above, it will notify the holder supplying such
opinion whether such opinion is satisfactory to the Company's counsel.
(b) The Company may endorse on all Share (or underlying Common Stock)
certificates a legend stating or referring to the transfer restrictions
contained in paragraph (a) above provided, that no such legend shall be endorsed
on any certificates which, when issued, are no longer subject to the
restrictions of this Section 11; provided, further, that if a transfer is made
pursuant to Rule 144 or clause (i) or clause (iv) of paragraph (a) of this
Section 11 or if an
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<PAGE> 29
opinion of counsel provided pursuant to clause (iii) of paragraph (a) concludes
that the legend is no longer necessary, the Company will deliver upon transfer
certificates without such legends.
SECTION 12. EXPENSES
(a) Except as otherwise provided herein, each party will bear its own
expenses in connection with the preparation, production and negotiation of this
Purchase Agreement and the Other Transaction Documents
(b) The Company agrees to pay, or to cause to be paid, all transfer,
recording, stock transfer, documentary, stamp and other similar taxes and fees
levied under the laws of the United States of America or any state or local
taxing authority thereof or therein in connection with the issuance, sale or
subsequent transfer of the Shares or underlying Common Stock (other than taxes
in connection with a transfer by a holder which are imposed on or measured by
the net income of such holder) and the execution and delivery of this Purchase
Agreement, any Other Transaction Documents and any other documents or
instruments contemplated hereby or thereby and any modification of this Purchase
Agreement, and Other Transaction Documents or any such other documents or
instruments and will hold Purchaser harmless without limitation as to time
against any and all liabilities with respect to all such taxes. The Company
shall file all necessary documentation and returns with respect to such taxes.
SECTION 13. NOTICES
All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement will be in writing and
will be deemed to have been given when personally delivered or mailed by
facsimile, telecopy or other electronic transmission device. Notices, demands
and communications to Purchaser and the Company will, unless another address is
specified in writing, be sent to the address indicated below:
<TABLE>
<S> <C>
Notices to Purchaser with a copy to:
DaimlerChrysler Aerospace AG Dorsey & Whitney LLP
Space Infrastructure 1001 Pennsylvania Avenue, N.W., Suite 300 South
1-5 Huenefeldstrasse Washington, D.C. 20004
D-28199 Bremen Attention: Delbert D. Smith, Esq.
Germany Fax No.: (202) 824-8990
Attention: Dr. Eckart Wolff Telephone: (202 824-8800
Fax No.: 011-49-421-539-5000
</TABLE>
29
<PAGE> 30
Notices to the Company with a copy to:
Spacehab, Incorporated Dewey Ballantine LLP
300 D Street, SW 1301 Avenue of the Americas
Suite 814 New York, NY 10019
Washington, DC 20024 Attention: Frank E. Morgan II, Esq.
Attention: David A. Rossi, President Fax No.: (212) 259-8326
Fax No.: (202) 488-3100
SECTION 14. MISCELLANEOUS
14.1. Governing Law.
This Purchase Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (other than any conflict of
laws rule which might result in the application of the laws of any other
jurisdiction).
14.2 Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.3. Survival.
All agreements, representations and warranties, covenants, and
obligations of the Company and any Subsidiary contained in this Purchase
Agreement and the Other Transaction Documents, or any document or certificate
delivered pursuant hereto or thereto shall survive, and shall continue in effect
following, the execution and delivery of this Purchase Agreement and the Other
Transaction Documents, the closings hereunder and thereunder, any investigation
at any time made by or on behalf of Purchaser or by any other Person, the
issuance, sale and delivery of the Shares, and any disposition thereof;
provided, however, that the survival of representations and warranties shall be
limited to three (3) years after the Closings hereunder. All statements
contained in any certificate or other document delivered by or on behalf of the
Company pursuant hereto shall constitute representations and warranties by the
Company hereunder.
14.4 Binding Effect, Benefit and Assignment.
(a) Neither party hereto may assign any of its rights or delegate or
otherwise transfer any of its duties under this Agreement without the prior
written consent of the other party. This provision shall not apply in the event
of any reorganization of either party or merger or acquisition of a party with
or by a third party where the reorganized, merged or successor party is
qualified to perform the terms of this Agreement.
30
<PAGE> 31
(b) In addition to any assignment permitted by Section 14.4(a),
Purchaser may assign, in whole or in part, any or all of its rights (and/or
obligations) under this Purchase Agreement to any permitted transferee of any or
all of its Shares or underlying Common Stock, and (unless such assignment
expressly provides otherwise) any such assignment shall not diminish the rights
Purchaser would otherwise have under this Purchase Agreement or with respect to
any remaining Shares or underlying Common Stock held by Purchaser or with
respect to any indemnity rights (or with respect to any other provisions which
expressly provide that they survive any termination of this Purchase Agreement).
14.5. Severability.
Any provision hereof or of any Other Transaction Documents which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14.6. Headings.
The headings and captions in this Purchase Agreement and the table of
contents are for convenience of reference only and shall not define, limit or
otherwise affect any of the terms or provisions hereof.
14.7. Counterparts.
This Purchase Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which such counterparts shall together constitute one and
the same instrument, and all signatures need not appear on any one counterpart.
14.8. Entire Agreement.
This Purchase Agreement and the Other Transaction Documents, together
with any further agreements entered into by Purchaser and the Company at the
closing hereunder contain the entire agreement among Purchaser and the Company,
and supersede any prior oral or written agreements, commitments, terms or
understandings, regarding the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 32
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be duly executed as of the date first above written.
SPACEHAB, INCORPORATED
By:
Name:
Title:
Accepted and agreed to as of the date first above written by the
undersigned Purchaser:
DAIMLERCHRYSLER
AEROSPACE AG
By:
Name:
Title:
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
32
<PAGE> 1
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT, dated as of August 5, 1999, between Spacehab,
Incorporated, a Washington corporation (the "Company"), and DaimlerChrysler
Aerospace AG, a German corporation ("Purchaser"). Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Purchase Agreement dated August 2, 1999, between the Company and Purchaser (the
"Purchase Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, Purchaser is investing in
shares of Series B Convertible Preferred Stock, no par value (the "Preferred
Stock"), of the Company, which Preferred Stock is convertible into shares of
Common Stock, no par value ("Common Stock") of the Company, all on the terms and
subject to the conditions therein set forth; and
WHEREAS, the Purchase Agreement contemplates the execution and delivery
of this Agreement contemporaneously therewith;
NOW, THEREFORE, in connection with the Purchase Agreement and for the
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission and any other
successor agency of the federal government administering the Securities Act or
the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute, and the rules, regulations and
interpretations of the Commission thereunder, all as the same shall be in effect
at the time.
"Holder" means any person owning or having the right to acquire
Registrable Securities (as defined herein) or any assignee or transferee thereof
in accordance with the provisions of the Purchase Agreement.
"Person" or "person" means an individual, corporation, partnership,
association, joint venture, trust or unincorporated organization, or a
government, governmental body, court, or any agency or political subdivision
thereof.
"Registered", "registered" or "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Securities" means (i) the shares of Common Stock
obtainable upon
<PAGE> 2
conversion of Preferred Stock, (ii) the shares of Common Stock outstanding from
any previous conversion of Preferred Stock and (iii) 104,165 shares of Common
Stock owned by Purchaser prior to its purchase of Preferred Stock. Once a Holder
sells Registrable Securities pursuant to a registration statement or Rule 144
under the Securities Act, they shall no longer be deemed to be Registrable
Securities.
"Registration Demand" shall mean a written notice (i) from one (1) or
more Holders stating that the Holder or Holders of a majority of the Registrable
Securities as of such date desire to sell all or part of such Registrable
Securities under circumstances requiring registration under the Securities Act
and requesting that the Company effect registration with respect to such
Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar successor federal statute, and the rules, regulations and
interpretations of the Commission thereunder, all as the same shall be in effect
at the time.
Section 2. Registration Rights.
(a) Demand Registration Rights. At any time after the first anniversary
of the effective date of this Agreement and on or before the tenth anniversary
thereof, the Holders holding a majority of the Registrable Securities as of such
date may make a Registration Demand requesting registration under the Securities
Act of all or part of their Registrable Securities. The Company shall use its
best efforts to cause the Registrable Securities as to which registration is
requested in the Registration Demand to be promptly registered under the
Securities Act (and in any event, such registration shall be effected within one
hundred and eighty (180) days following receipt of a Registration Demand).
Within ten (10) days after receipt of any such Registration Demand, the Company
shall give written notice of the proposed registration to all other Holders of
Registrable Securities. All Holders of Registrable Securities shall have the
option to have all or part of their Registrable Securities included in any
registration under this Section 2(a). Any Holder may exercise such option by
delivering written notice of exercise to the Company within thirty (30) days
after receiving notice from the Company of the proposed registration. Any such
notice to the Company shall specify the number of Registrable Securities to be
included in such registration and the Company shall be obligated to include such
Registrable Securities in any such registration.
(b) Number of Demand Registrations. Subject to the terms and conditions
hereof, the Holders shall be entitled to request (and the Company shall be
required to effect) up to four (4) registrations under the Securities Act of all
or part of the Registrable Securities. For purposes hereof, if (i) the Company
withdraws a registration statement prior to the effectiveness thereof, (ii) the
sale of securities subject to a registration statement filed pursuant to any
Registration Demand is not consummated because of the failure of the Company to
comply with the terms of this Agreement, (iii) upon the consummation of a sale
of securities subject to a registration statement filed pursuant to any
Registration Demand, less than eighty percent (80%) of the
2
<PAGE> 3
securities registered for sale or requested to be registered for sale thereunder
are sold, or (iv) a revocation notice has been delivered and expenses of the
Company have been paid as provided in Section 2.3 hereof, such registration
statement shall not be counted as one of the registrations to which such Holders
are entitled under this Section 2(b).
(c) Right of Holders to Revoke Registration Demand. After the delivery
of a Registration Demand under this Section 2, at any time prior to the
effective date of the registration relating to such Registration Demand, the
Holder or Holders making such Registration Demand may revoke such request by
providing written notice of such revocation to the Company. Any such revocation
shall count as one (1) of the registrations to which such revoking Holder or
Holders are entitled under Section 2(b) hereof unless the revoking Holder or
Holders pay all of the Company's out-of-pocket expenses with respect to such
registration and qualification incurred to the date of the revocation notice. In
any such event, the registration statement initiated by the revoked Registration
Demand need not be filed.
(d) Right of Company to Delay or Postpone Registration. The Company may
delay or postpone the registration of Registrable Securities following a
Registration Demand for a period of not more than ninety (90) days after receipt
of such Registration Demand if the Company furnishes to each Holder of
Registrable Securities to be included in the applicable registration a copy of a
resolution of the Board of Directors certified by the Secretary of the Company
stating that (i) the Company is in possession of material non-public information
which, in the good faith judgment of the Board of Directors, it considers
prudent not to disclose in a registration statement, or (ii) such registration
would, in the good faith judgment of the Board of Directors, adversely affect a
material pending third party financing, reorganization, recapitalization,
merger, consolidation or similar transaction, or (iii) such registration would,
in the good faith judgment of the Board of Directors, have a Material Adverse
Effect on the Company's business or financial condition and, in each case,
stating the basis of such good faith judgment; provided, however, that the
Company during such delay or postponement may not file a registration statement
for securities to be issued and sold for its own account or that of anyone other
than the Holders.
(e) Selection of Underwriters. The managing underwriter and all other
underwriters participating in any underwritten public offering covered by a
Registration Demand shall be selected by the Holders of a majority of the shares
of Registrable Stock that participate in such registration, subject to the
approval of the Board of Directors of the Company, which shall not be
unreasonably withheld.
Section 3. Piggyback Registrations.
(a) Piggyback Registration. If at any time or from time to time, the
Company shall propose to register any Common Stock (or any warrants, units,
convertibles, rights or other securities related or linked to any shares of the
Common Stock) for public sale under the Securities Act, whether pursuant to a
demand by other security holders, a shelf registration on
3
<PAGE> 4
behalf of other security holders (other than the existing effective shelf
registration statement for the Company's outstanding 8% Convertible Subordinated
Notes due 2007) or otherwise, then the Company shall give prompt written notice
to all Holders of the proposed registration (but in no event shall such notice
be given later than forty-five (45) days before any such registration is filed
with the Commission). If any Holders so request within thirty (30) days after
receipt of such notice, the Company, subject to the provisions of Section 3(c)
shall include in such registration the Registrable Securities held or to be held
by such Holders and requested to be included in such registration.
(b) Right of Company to Withdraw Registration. The Company may at any
time prior to the effectiveness of any such registration statement, in its sole
discretion and following notice to any Holder that has, or may, elect to
participate in such registration, abandon the proposed offering. In the event of
any such abandonment, the Company shall bear all reasonable expenses incurred by
such Holder in connection with such withdrawn registration statement.
(c) Underwriter's Clawback. Notwithstanding anything contained in
Sections 3(a) and 3(b) hereof, the Company shall not be obligated to include
such Registrable Securities in such offering if the Company is advised in
writing by the managing underwriter or underwriters of such offering (with a
copy to each Holder) that such offering would in its or their good faith
judgment be materially adversely affected by such inclusion, in which case
Holders shall be entitled to participate in any such reduced number of
Registrable Securities (if any) which may be included in such registration in
proportion to their relative holdings of Registrable Securities. Notwithstanding
the foregoing, any such clawback shall be imposed pro rata on the Holders
exercising piggyback rights and other security holders.
Section 4. Expenses. Subject to the limitations contained in this
Section 4 and except as otherwise specifically provided in this Agreement, the
entire costs and expenses of the registrations and qualifications pursuant to
this Agreement shall be borne by the Company. Such costs and expenses shall
include, without limitation, (i) the fees and expenses of counsel for the
Company and of its accountants, (ii) all other costs, fees and expenses of the
Company incident to the preparation, printing and filing under the Securities
Act of the registration statement and all amendments and supplements thereto,
(iii) the cost of furnishing copies of each preliminary prospectus, each final
prospectus and each amendment or supplement thereto to underwriters, dealers and
other purchasers of the Registrable Securities, (iv) the costs and expenses
(including fees and disbursements of counsel) incurred in connection with the
qualification of the Registrable Securities under the securities or Blue Sky
laws of various jurisdictions, and (v) the reasonable fees and expenses of one
counsel representing the Holders in connection with each registration of their
Registrable Securities. Such expenses shall not include any selling costs of the
Holders such as underwriters' discounts and selling commissions or any taxes
related to any sale of Registrable Securities by the Holders.
Section 5. Obligations of the Company. Without limiting any other
provision hereof, in
4
<PAGE> 5
connection with any registration of Registrable Securities pursuant to Section 2
or 3 hereof, the Company shall (i) use its best efforts to prepare and file with
the Commission as soon as reasonably practicable a registration statement with
respect to the shares required to be so registered; (ii) use its best efforts to
register and qualify the shares covered by such registration statement under the
securities or Blue Sky Laws of such jurisdictions as any Holder may reasonably
request; (iii) take such other actions as are reasonable and necessary to comply
with the requirements of the Securities Act, the Exchange Act, and all
applicable rules and regulations promulgated thereunder; (iv) obtain the
withdrawal of any order suspending the effectiveness of the registration
statement at the earliest possible time; and (v) provide a transfer agent and
registrar for the Registrable Securities not later than the effective date of
any registration statement.
Section 6. Procedures.
(a) In the case of each registration or qualification pursuant to this
Agreement, the Company will keep all Holders advised in writing as to the
initiation of proceedings for such registration and qualification and as to the
completion thereof, and will advise any such Holder, upon request, of the
progress of such proceedings.
(b) The Company will use its best efforts, at the Company's sole
expense, to keep each registration and qualification under this Agreement
effective (and in compliance with the Securities Act) by such action as may be
necessary or appropriate for a period of one hundred twenty (120) days after the
effective date of such registration statement, including, without limitation,
the filing of post-effective amendments and supplements to any registration
statement or prospectus necessary to keep the registration statement current and
the further qualification under any applicable Blue Sky or other state
securities laws to permit such sale or distribution, all as requested by the
Holder or Holders.
(c) The Company shall immediately notify each Holder on whose behalf
Registrable Securities have been registered pursuant to this Agreement, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement (including any preliminary
prospectus), as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing.
(d) In the case of an underwritten offering (and in the case of a
non-underwritten offering where the Company furnishes the same to any other
selling securityholder), the Company will furnish to the underwriter(s) and each
Holder on whose behalf Registrable Securities have been registered pursuant to
this Agreement a signed counterpart, addressed to the underwriter(s) (or in the
case of such non-underwritten offering, each Holder), of (i) an opinion of
counsel for the Company, dated the effective date of such registration
statement, and (ii) a so-called "cold comfort" letter signed by the independent
public accountants certifying the Company's financial
5
<PAGE> 6
statements included in such registration statement, and such opinion of counsel
and accountants' letter shall cover substantially the same matters with respect
to such registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in connection with
underwritten public offerings of securities.
(e) Without limiting any other provision hereof, in connection with any
registration of Registrable Securities under this Agreement, the Company will
comply with the Securities Act, the Exchange Act, all applicable rules and
regulations of the Commission, and all other applicable laws and will make
generally available to its securities holders, as soon as reasonably
practicable, an earnings statement covering a period of at least twelve (12)
months, beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11 (a) of the Securities Act.
(f) In connection with any registration of Registrable Securities under
this Agreement, the Company will, if requested by underwriters for any
Registrable Securities included in such registration, enter into an underwriting
agreement with such underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, provisions relating
to indemnification. The Holders on whose behalf Registrable Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement, and the representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of such Holders. Such underwriting agreement
shall also comply with Section 8 hereof.
(g) If the Company at any time proposes to register any of its
securities under the Securities Act, other than pursuant to a request made under
Section 2 hereof, whether or not for sale for its own account, and such
securities are to be distributed by or through one or more underwriters, then
the Company will use its best efforts, if requested by any Holder requesting
registration of Registrable Securities in connection therewith pursuant to
Section 3 hereof, to arrange for such underwriters to include such Registrable
Securities among the securities to be distributed by or through such
underwriters.
(h) In connection with the preparation and filing of each registration
statement registering Registrable Securities, the Company will give any Holders
on whose behalf such Registrable Securities are to be so registered, any
underwriters participating in any such disposition of Registrable Securities and
their respective counsel and accountants, the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such access to its books and records and such
opportunities to discuss the business
6
<PAGE> 7
of the Company with its officers, its counsel and the independent public
accountants who have certified its financial statements, as shall be necessary,
in the opinion of such Holders or such underwriters or their respective counsel,
in order to conduct a reasonable and diligent investigation within the meaning
of the Securities Act. Without limiting the foregoing, each registration
statement, prospectus, amendment, supplement or any other document filed with
respect to a registration under this Agreement shall be subject to review and
reasonable approval by the Holders registering Registrable Securities in such
registration and by their counsel.
Section 7. Furnishing of Documents. The Company will, at its sole
expense, furnish to each holder with respect to which registration has been
effected, such number of registration statements, prospectuses, offering
circulars and other documents incident to any registration or qualification
referred to in this Agreement as any such Holder from time to time may
reasonably request.
Section 8. Indemnification of Holders.
(a) Subject to the conditions set forth below, in connection with any
registration of Registrable Securities pursuant hereto, the Company agrees to
indemnify and hold harmless each Holder and any underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in a
distribution covered by a registration statement, their respective officers,
directors and affiliates (collectively, the "Indemnitees"):
(i) against any and all losses, claims, damages or
liabilities, joint or several, and expenses whatsoever arising out of
or based upon (including, but not limited to, any and all expense
whatsoever reasonably incurred by any of the Indemnities in
investigating, preparing or defending any litigation, commenced or
threatened, or any claim whatsoever based upon or arising out of) (A)
any untrue or alleged untrue statement of a material fact contained in
any preliminary prospectus, or any amendment or supplement thereto, the
registration statement or the prospectus (each as from time to time
amended and supplemented), or in any application or other document
executed by the Company or based upon written information furnished by
the Company filed in any jurisdiction in order to qualify the Common
Stock under the securities laws thereof or otherwise incident to the
registration or the qualification of the Common Stock under the
Securities Act or any state securities laws applicable to the Company;
or (B) the omission or alleged omission from any item referred to in
the preceding clause of a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (C) any
other violation or alleged violation of applicable federal or state
law, rule or regulation relating to action or inaction by the Company
in connection with any such registration or qualification; provided,
however, that with respect to an Indemnitee, the indemnity agreement
contained herein shall not apply to any loss, claim, damage, liability
or action of or involving such Indemnitee arising out of or based upon
any untrue or alleged untrue statement or omission made in reliance
upon and in conformity with any information
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<PAGE> 8
furnished in writing to the Company by such Indemnitee expressly for
use therein; and
(ii) subject to the proviso contained in subsection (i) above,
against any and all losses, claims, damages and liabilities, joint or
several, and expenses whatsoever to the extent of the aggregate amount
paid in settlement of any litigation, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission
or any such alleged untrue statement or omission (including, but not
limited to, any and all expenses whatsoever reasonably incurred by the
Indemnitees or their respective counsel in investigating, preparing or
defending against any such litigation or claim) if such settlement is
effected with the written consent of the Company which consent shall
not be unreasonably withheld.
(b) The Company will enter into an underwriting agreement and other
agreements with the underwriter or underwriters for any offering registered
under the Securities Act pursuant to this Agreement and with the Holders selling
Registrable Securities pursuant to such offering, and such underwriting
agreement and other agreements shall contain customary provisions with respect
to indemnification which shall, at a minimum, provide the indemnification set
forth above.
(c) The procedure for indemnification by the Company under this Section
8 shall be as follows:
(i) if any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an
Indemnitee in respect of which indemnity may be sought from the
Company, such Indemnitee shall promptly notify the Company in writing,
and the Company shall be entitled to assume the defense thereof,
including the employment of counsel reasonably satisfactory to such
Indemnitee and the payment of all reasonable expenses related thereto
(including those of such counsel), by delivering written notice of its
election to do so within fifteen (15) days following receipt of notice
from such Indemnitee; provided that the failure of the Indemnitee to
give the Company prompt notice as provided herein shall not relieve the
Company of its indemnification obligations hereunder except to the
extent, if any, the Company shall have been prejudiced thereby;
(ii) such Indemnitee shall have the right to employ separate
counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such separate counsel shall be the expense
of such Indemnitee unless (A) the Company has agreed to pay such fees
and expenses, or (B) the Company has failed to assume the defense of
such action or proceeding by delivering the notice referred to in
subsection (i) hereof, or (C) the Company has failed to employ counsel
reasonably satisfactory to the Indemnitee within ten (10) days after
the Company has elected to assume the defense of such action pursuant
to subsection (i) hereof, or if such counsel has been employed by the
Company, at any time after such employment, such counsel ceases (in the
reasonable judgment of the
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<PAGE> 9
Indemnitee) to be reasonably satisfactory, or (D) the named parties to
any such action or proceeding (including any impleaded parties) include
both such Indemnitee and the Company, and such Indemnitee shall have
been advised by counsel that there may be one or more legal defenses
available to such Indemnitee that are different from or additional to
those available to the Company creating a conflict of interest on the
part of such counsel to represent both parties; and
(iii) if such Indemnitee notifies the Company in writing that
it elects to employ separate counsel at the expense of the Company as
permitted by the provisions of the preceding subsection (ii), the
Company shall not have the right to assume the defense of such action
or proceeding on behalf of such Indemnitee. The foregoing
notwithstanding, the Company shall not be liable for the reasonable
fees and expenses of more than one (1) separate firm of attorneys at
any time for such Indemnitee and any other Indemnitee (which firm shall
be designated in writing by such Indemnitee) in connection with any one
such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 9. Indemnification of the Company.
Each Holder, in any registered offering pursuant hereto, agrees to
indemnify and hold harmless the Company, its officers and directors and agents
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against any and all losses, liabilities,
claims, damages and expenses of the kind indemnified against by the Company
under Section 8 above based upon statements or omissions or alleged statements
or omissions, if any, made in any preliminary prospectus, the registration
statement or prospectus or any amendment or supplement thereof or any
application or other document in reliance upon, and in conformity with, written
information furnished by such Holder to the Company expressly for use in any
preliminary prospectus, the registration statement or prospectus or any
amendment or supplement thereof or in any such application or other document. In
no event, however, shall the liability hereunder of any Holder be greater than
the dollar amount of the proceeds received by such Holder upon sale of its
Registrable Securities in the offering giving rise to such indemnification
obligation. In case any action shall be brought against the Company, or any
other person so indemnified, in respect of which indemnity may be sought against
any Holder, such Holder shall have the rights and duties given to the Company,
and each person so indemnified shall have the rights and duties given to such
Holder, by the provisions of Section 8 above and the procedure for
indemnification shall be as provided for in Section 8.
Section 10. Reports Under Exchange Act. With a view to making available
to each Holder the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the Commission that may at any time permit the
Holder to sell securities of the Company to the public without registration or
pursuant to a registration with the information
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<PAGE> 10
required to be disclosed on Form S-3, the Company agrees to use its best efforts
to satisfy the requirements of all such rules and regulations (including the
requirements for public information, registration under the Exchange Act and
timely reporting to the-Commission). The Company shall (whether or not it shall
then be required to do so) timely file such information, documents and reports
as the Commission may require or prescribe under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act, for so long as the Company is subject to the
reporting requirements of either Section 13 or 15(d) of the Exchange Act. The
Company shall forthwith upon request furnish any Holder of applicable
Registrable Securities (i) a written statement by the Company that it has
complied with such reporting requirements, (ii) a copy of the most recent annual
or quarterly report of the Company and (iii) such other reports and documents
filed by the Company with the Commission as such Holder may reasonably request.
Section 11. Obligations of Holders. It shall be a condition precedent
to the obligation of the Company to register any Registrable Securities pursuant
hereto that each Holder shall (i) furnish to the Company such information
regarding the Registrable Securities and the intended method of disposition
thereof and other information concerning such Holder as the Company shall
reasonably request and as shall be required in connection with the registration
statement to be filed by the Company, and (ii) agree to abide by such additional
customary terms affecting the proposed offering as may be reasonably requested
by the managing underwriter of such offering.
Section 12. Certain Limitations in Connection with Future Grants of
Registration Rights.
(a) From and after the date of this Agreement, the Company shall not
enter into any agreement with any holder or prospective holder of any of its
Common Stock providing for the granting to such holder of demand registration
rights unless such agreement includes provisions to the effect that (i) the
Company will give each Holder notice at least thirty (30) days prior to the
filing of a registration statement pursuant to the exercise of such rights and
(ii) if any Holder requests inclusion of Registrable Securities in such
registration statement within thirty (30) days after receipt of such notice,
then such Holder's Registrable Securities requested to be so included will be on
a pari passu basis in proportion to the securities each selling securityholder
requests to be registered if marketing factors require a limitation on the
number of securities to be included in such registration statement.
(b) From and after the date of this Agreement, the Company shall not
enter into any agreement with any holder or prospective holder of any of its
Common Stock providing for the granting to such holder of incidental or
"piggyback' registration rights unless such agreement includes provisions to the
effect that, in the case of a registered underwritten public offering of the
Common Stock to which Section 3 hereof applies, such agreement gives priority to
the Holders of Registrable Securities requested to be so included if marketing
factors require a limitation on the number of shares of Common Stock to be
included in such offering.
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<PAGE> 11
Section 13. Suspension of Sales. Upon receipt of written notice from
the Company that a registration statement, preliminary prospectus or prospectus
contains an untrue statement of a material fact or an omission to state a
material fact required to be stated in a registration statement or prospectus or
necessary to make the statements in a registration statement, prospectus or
preliminary prospectus not misleading, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received copies of
the supplemented or amended prospectus, or until such Holder is advised in
writing by the registrant that the use of the prospectus may be resumed, and, if
so directed by the registrant, such Holder shall deliver to the registrant (at
the registrant's expense) all copies, other than permanent file copies then in
such Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
Section 14. Holdback. Except for transfers made in transactions exempt
from the registration requirements under the Securities Act pursuant to Section
4(2) thereof or pursuant to Rule 144A, upon the written request of the managing
underwriter of any underwritten offering of the Common Stock, neither the
Company nor any Holder shall sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Common Stock (other than
those included in such registration) without the prior written consent of such
managing underwriter for a period (not to exceed thirty (30) days before the
effective date and ninety (90) days thereafter) that such managing underwriter
reasonably determines is necessary in order to effect the underwritten public
offering. In addition, the Company will cause each of the officers and directors
of the registrant and any future grantee of registration rights to enter into
substantially similar hold-back agreements with such managing underwriter
covering at least the same period.
Section 15. Changes in Registrable Securities or Preferred Stocks. If,
and as often as, there are any changes in the Registrable Securities or
Preferred Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions of this Agreement, as may be required, so that the rights and
privileges granted hereby shall continue with respect to the Registrable
Securities as so changed.
Section 16. Specific Performance. The Company agrees and stipulates
that the remedies at law of the Holders in the event of any default by the
Company in the performance of or compliance with any of the terms of this
Agreement are not and will not be adequate and that, to the fullest extent
permitted by law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise. Such remedies and
all other remedies provided for in this Agreement shall, however, be cumulative
and not exclusive and shall be in addition to any other remedies which a party
may have under this Agreement or otherwise.
Section 17. Notices. All notices, demands and other communications to
be given or
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delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or
mailed by facsimile, telecopy or other electronic transmission device. Notices,
demands and communications to Purchaser and the Company will, unless another
address is specified in writing, be sent to the address indicated below:
Notices to Purchaser with a copy to:
DaimlerChrysler Aerospace AG Dorsey & Whitney LLP
Space Infrastructure 1001 Pennsylvania Avenue, N.W., Suite 300 South
1-5 Huenefeldstrasse Washington, D.C. 20004
D-28199 Bremen Attention: Delbert D. Smith, Esq.
Germany Fax No.: (202) 824-8990
Attention: Dr. Eckart Wolff
Fax No.: 011-49-421-539-5000
Notices to the Company with a copy to:
Spacehab, Incorporated Dewey Ballantine LLP
300 D Street, SW 1301 Avenue of the Americas
Suite 814 New York, NY 10019
Washington, DC 20024 Attention: Frank E. Morgan II, Esq.
Attention: President Fax No.: (212) 259-8326
Fax No.: (202) 488-3100
If to any other Holder of Registrable Securities, at the Holder's address set
forth in the records of the Company or at such other address as the Holder
thereof may otherwise indicate in a written notice delivered to the Company.
Section 18. Miscellaneous.
(a) Governing Law. This Purchase Agreement shall be governed by, and
construed in accordance with, the laws of the District of Columbia (other than
any conflict of laws rule which might result in the application of the laws of
any other jurisdiction).
(b) Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) Binding Obligation. By executing this Agreement, each of the
undersigned
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represents and warrants, severally and not jointly, that (i) it has all
necessary power and has taken all necessary action to make all the provisions of
the Agreement the valid and binding obligation of the undersigned and
enforceable in accordance with its terms; and (ii) the Agreement is a legal,
valid and binding obligation of the undersigned enforceable in accordance with
its terms.
(d) Binding Effect, Benefit and Assignment. The terms of this Agreement
shall be binding upon, and inure to the benefit of, the parties and their
respective successors and permitted assigns whether so expressed or not. The
Company may not assign any of its obligations, duties or rights under this
Agreement except with the consent of each Holder. In addition to any assignment
by operation of law, (i) each Holder may assign, in whole or in part, any or all
of its rights (and/or obligations) under this Agreement to any person, provided
that any such transfer or assignment is made in accordance with the Purchase
Agreement and (unless such assignment expressly provides otherwise) any such
assignment shall not diminish the rights the Holder would otherwise have under
this Agreement or with respect to any remaining Registrable Securities held by
the Holder.
(e) Remedies. The rights and remedies of each Holder hereunder shall be
independent of the rights and remedies of any other Holder, except as otherwise
expressly provided herein. Without limiting the foregoing, if the Company or any
other person has any rights, claims or defenses against any Holder, such rights,
claims or defenses shall not apply with respect to any other Holder, except as
otherwise expressly provided herein. The taking of any action or the failure to
take any action by any Holder with respect to the subject matter of this
Agreement shall not, and shall not be deemed to, constitute the taking of any
action or the failure to take any action by any other Holder, except as
expressly set forth in this Agreement.
(f) Amendment. Except as otherwise provided herein, the provisions of
this Agreement may be amended, and compliance with any covenant or provision
herein set forth may be omitted or waived, only if the Company has obtained the
written consent of the Holders of at least seventy-five percent (75%) of the
Registrable Securities then held by Holders. In each such case, the Company
shall deliver copies of such consent in writing to any Holders who did not
execute the same. Any waiver or consent may be given subject to satisfaction of
conditions stated therein and any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(g) Severability. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(h) Headings. The headings and captions in this Agreement are for
convenience of reference only and shall not define, limit or otherwise affect
any of the terms or provisions hereof.
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(i) Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument, and all signatures need not appear on any one counterpart.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SPACEHAB, INCORPORATED
By:______________________________________
Name:
Title:
DAIMLERCHRYSLER AEROSPACE AG
By:______________________________________
Name:
Title:
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
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<PAGE> 1
EXHIBIT 99.1
DAIMLERCHRYSLER AEROSPACE TO BUY
$12 MILLION EQUITY STAKE IN SPACEHAB, INC.
German Aerospace Giant's Ownership in U.S. Commercial Space Leader to Increase
to 11.5%
Washington, D.C., August 2, 1999 - SPACEHAB, Inc. (Nasdaq: SPAB) today announced
that Munich-based DaimlerChrysler Aerospace AG (Dasa) is buying a $12 million
equity stake in the Washington-based commercial space services provider. Dasa
has agreed to purchase 1.33 million shares of preferred stock. The preferred
stock, convertible on a one-for-one basis into common stock, will increase
Dasa's investment interest in SPACEHAB to approximately 11.5%.
Dasa, which is the aerospace subsidiary of DaimlerChrysler, already
owned one percent of SPACEHAB's outstanding common stock and the two companies
enjoy a close working relationship. Dasa is a subcontractor on SPACEHAB's
Integrated Cargo Carrier program, which was used by NASA to deliver
unpressurized cargo to the International Space Station (ISS) during Discovery
mission STS-96 in May.
The increase of equity by Dasa in SPACEHAB expands and solidifies that
relationship as both companies pursue opportunities related to commercial
resupply and utilization of the ISS. Recently, Dasa's Space Infrastructure
Division took over leadership in the initiative to industrialize operations and
utilization of Europe's share in the ISS by submitting a proposal to the
European Space Agency (ESA). Among various others, one potential area of
cooperation is an advanced orbital propulsion system related to ISS servicing
and station-based science and research.
"As prime contractor to ESA for Europe's core contributions for the
ISS-D the Columbus laboratory and the Russian Data Management System - and
focusing on an essential role in Space Station operations and utilization, Dasa
felt it was important to strengthen our strategic relationship with SPACEHAB by
expanding our ownership position", said Josef Kind, President of Dasa's Space
infrastructure Division.
"Dasa's additional investment in SPACEHAB reinforces the view that
SPACEHAB is a key player in the ISS program and is a model for other commercial
companies hoping to resupply and utilize the ISS," said SPACEHAB Chairman and
CEO Dr. Shelley A. Harrison. "We are especially excited about expanding our
cooperation with one of the leading players in the European space industry."
Under the stock purchase agreement approved today, Dasa will
immediately purchase all of SPACEHAB's 975,000 authorized and unissued preferred
shares. The other 358,333 shares will be issued upon shareholder approval of a
proposal to increase the number of authorized preferred shares that will be
presented at the next shareholders meeting in October. Mr. Josef Kind of Dasa
will join SPACEHAB's Board of Directors, representing the preferred shares.
Dasa's Space Infrastructure Division is industrial prime for the
Columbus Laboratory, the European contribution to the ISS, and its ground
support and operations infrastructure. Besides developing microgravity
facilities and payloads for the Columbus and other ISS Laboratories, Dasa
participates in several other ISS-related projects, including the Automated
Transfer Vehicle, the data management system for the Russian module of the ISS,
the European Robotic Arm, and Crew Transport Vehicles.
SPACEHAB is the first company to commercially develop, own and operate
habitable modules that provide laboratory facilities and cargo re-supply aboard
NASA's Space Shuttle fleet. With its Johnson Engineering and Astrotech
subsidiaries, SPACEHAB is the world's leading provider of commercial payload
processing services for manned and unmanned payloads. The Company also supports
NASA astronaut training at Johnson Space Center, Houston.
This release contains forward-looking statements that are subject to
certain risks and
<PAGE> 2
uncertainties that could cause actual results to differ materially from those
projected in such statements. Such risks and uncertainties include, but are not
limited to, whether the Company will fully realize the economic benefits under
its NASA and other customer contracts, the successful development and
commercialization of new space assets, technological difficulties, product
demand, timing of new contracts and business, market acceptance risks, the
effect of economic conditions, uncertainty in government funding, the impact of
competition, and other risks detailed in the Company's Securities and Exchange
Commission filings.
FOR MORE INFORMATION:
Mark A. Kissman
Vice President, Finance and CFO
SPACEHAB, Inc.
(202) 488-3500
[email protected]
