<PAGE> 1
As filed with the Commission on December 30, 1998 File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------
ORBITAL SCIENCES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-1209561
- ------------------------------ -------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
21700 Atlantic Boulevard
Dulles, Virginia 20166
-----------------------
(Address of principal executive offices, including zip code)
ORBITAL SCIENCES CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------------------------------------
(Full title of the plan)
Leslie C. Seeman, Esq.
Senior Vice President, General Counsel and Secretary
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
(703) 406-5000
--------------
(Name, address and telephone number of agent for service)
------------------
Copy to:
Eve N. Howard, Esq.
Hogan & Hartson L.L.P.
555 13th Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------
Title of Amount Proposed maximum Proposed Amount of
Securities to be offering maximum registration
to be registered(1) price per aggregate fee
registered share(2) offering
price(2)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value, $.01 2,000,000 $33.34 $66,680,000 $18,538
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers any additional shares of Common
Stock, par value $.01 per share, of Orbital Sciences Corporation
which become issuable under the Orbital Sciences Corporation 1999
Employee Stock Purchase Plan by reason of any stock split, stock
dividend, recapitalization or similar transaction.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933, based on 85% of the
average of the high and low prices of the Common Stock, par value $.01
per share, of Orbital Sciences Corporation, reported on the New York
Stock Exchange on December 23, 1998.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to employees participating in the Orbital Sciences Corporation
1999 Employee Stock Purchase Plan (the "Plan") as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Orbital Sciences Corporation (the "Registrant" or the "Company")
hereby incorporates the following documents, all of which have previously been
filed with the Securities and Exchange Commission, herein by reference:
a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
b) The Company's Quarterly Report on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998;
and
c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under
Section 12 of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and all amendments or reports
filed for the purpose of updating such description.
All other documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel.
Not required.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law sets forth provisions that define the extent to which a
corporation organized under the laws of Delaware may indemnify directors,
officers, employees or agents. Section 145 provides as follows:
(a) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in
<PAGE> 3
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted in
good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe the person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe
that the person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of
such action or suit if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a present or former director or officer
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee
or agent is proper in the circumstances because the person has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made, with respect
to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding even though less than a
quorum, or (2) by a committee of such directors designated by majority
vote of such directors, even though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (4) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative,
or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
corporation as authorized in this Section. Such expenses (including
attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions,
if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under any by-
<PAGE> 4
law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the
power to indemnify such person against such liability under this
section.
(h) For purposes of this Section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as such person would
have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
Paragraph Ten of the Company's Restated Certificate of Incorporation
provides that the Company shall, to the maximum extent permitted by Delaware
law, indemnify and, upon request, advance expenses to any person:
...who is or was a party or is threatened to be made a party to
any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was or has agreed to be a
director or officer of this Corporation or while a director or officer
is or was serving at the request of this Corporation as a director,
officer, partner, trustee, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, against expenses
(including attorney's fees and expenses), judgments, fines, penalties
and amount paid in settlement incurred in connection with the
investigation, preparation to defend or defense of such action, suit,
proceeding or claim, provided, however, that the foregoing shall not
require this Corporation to indemnify or advance expenses to any
person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such
indemnification shall inure to the benefit of the heirs and legal
representatives of such person. Any person seeking indemnification
under this Paragraph 10
<PAGE> 5
shall be deemed to have met the standard of conduct required for such
indemnification unless the contrary shall be established.
Section 102(b)(7) of the Delaware General Corporation Law permits
corporations to eliminate or limit the personal liability of their directors by
adding to the Certificate of Incorporation a provision eliminating or limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director for (a) any
breach of any director's duty of loyalty to the corporation or its
stockholders, (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) payment of dividends
or repurchases or redemptions of stock other than from lawfully available
funds, or (d) any transaction from which the director derived an improper
personal benefit. Paragraph Nine of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent that exculpation from liability is not
permitted under the Delaware General Corporation Law as in effect at the time
such liability is determined.
In addition, the Company has entered into substantially identical
indemnification agreements with each of its Directors and Executive Officers
and certain other officers. The Company has agreed, to the full extent
permitted by the Delaware General Corporation Law, as amended from time to
time, to indemnify each indemnitee against all loss and expense incurred by the
indemnitee because he was, is or is threatened to be made a party to any
completed, pending or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he was a
director, officer, employee or agent of the Company or any of its affiliates,
or because the Company has a right to judgment in its favor because of his
position with the Company or any of its affiliates. The indemnitee will be
indemnified so long as he acted in good faith and in a manner reasonably
believed by him to be in or not opposed to the Company's best interests. The
agreement further provides that the indemnification thereunder is not exclusive
of any other rights the indemnitee may have under the Company's Restated
Certificate of Incorporation, By-Laws or any agreement or vote of stockholders,
nor may the Restated Certificate of Incorporation or By-Laws be amended to
effect adversely the rights of any indemnitee.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE> 6
Item 8. Exhibits.
The following exhibits are filed as a part of this Registration
Statement.
<TABLE>
<CAPTION>
Exhibit
No._ Description
------- -----------
<S> <C> <C>
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hogan & Hartson L.L.P
(contained in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on the
Signature Page of this Registration
Statement).
99.1 Orbital Sciences Corporation 1999
Employee Stock Purchase Plan
</TABLE>
<PAGE> 7
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(A) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(B) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
(C) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(A) and (a)(1)(B) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the County of Loudoun, the Commonwealth of Virginia, on
this 30th day of December, 1998.
ORBITAL SCIENCES CORPORATION
By /s/ David W. Thompson
---------------------
David W. Thompson, Chairman
of the Board, President and
Chief Executive Officer
Each person whose signature appears below hereby constitutes
and appoints David W. Thompson, Bruce W. Ferguson and Leslie C. Seeman, or any
of them, their true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for them and in their name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C>
/s/ DAVID W. THOMPSON Chairman of the Board, Chief Executive 12/30/98
- ------------------------------------------------------- Officer and Director (Principal Executive ------------
DAVID W. THOMPSON Officer)
/s/ JEFFREY V. PIRONE Executive Vice President and Chief Financial 12/30/98
- ------------------------------------------------------- Officer (Principal Financial Officer) ------------
JEFFREY V. PIRONE
/s/ MICHAEL P. KEEGAN Vice President and Controller 12/30/98
- ------------------------------------------------------- ------------
MICHAEL P. KEEGAN
/s/ FRED C. ALCORN Director 12/30/98
- ------------------------------------------------------- ------------
FRED C. ALCORN
/s/ KELLY H. BURKE Director 12/30/98
- ------------------------------------------------------- ------------
KELLY H. BURKE
/s/ BRUCE W. FERGUSON Director 12/30/98
- ------------------------------------------------------- ------------
BRUCE W. FERGUSON
/s/ DANIEL J. FINK Director 12/30/98
- ------------------------------------------------------- ------------
DANIEL J. FINK
/s/ LENNARD A. FISK Director 12/30/98
- ------------------------------------------------------- ------------
LENNARD A. FISK
Director
- ------------------------------------------------------- ------------
JACK L. KERREBROCK
Director
- ------------------------------------------------------- ------------
DOUGLAS S. LUKE
/s/ JOHN L. MCLUCAS Director 12/30/98
- ------------------------------------------------------- ------------
JOHN L. MCLUCAS
Director
- ------------------------------------------------------- ------------
JANICE I. OBUCHOWSKI
/s/ FRANK L. SALIZZONI Director 12/30/98
- ------------------------------------------------------- ------------
FRANK L. SALIZZONI
/s/ HARRISON H. SCHMITT Director 12/30/98
- ------------------------------------------------------- ------------
HARRISON H. SCHMITT
/s/ JAMES R. THOMPSON Director 12/30/98
- ------------------------------------------------------- ------------
JAMES R. THOMPSON
/s/ SCOTT L. WEBSTER Director 12/30/98
- ------------------------------------------------------- ------------
SCOTT L. WEBSTER
</TABLE>
<PAGE> 9
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
No._ Description
------- -----------
<S> <C> <C>
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Hogan & Hartson L.L.P
(contained in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (contained on the
Signature Page of this Registration
Statement).
99.1 Orbital Sciences Corporation 1999
Employee Stock Purchase Plan
</TABLE>
<PAGE> 1
Exhibit 5
December 30, 1998
Board of Directors
Orbital Sciences Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
Ladies and Gentlemen:
This firm has acted as counsel to Orbital Sciences Corporation (the
"Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of up to 2,000,000 shares (the "Shares")
of common stock, par value $.01 per share, of the Company, issuable under the
Orbital Sciences Corporation 1999 Employee Stock Purchase Plan (the "Plan").
This letter is furnished to you pursuant to the requirements of Item 601(b)(5)
of Regulation S-K, 17 C.F.R. (S)229.601(b)(5), in connection with such
registration.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan.
3. The Restated Certificate of Incorporation of the Company, as
certified by an Assistant Secretary of the Company on the date
hereof as being complete, accurate and in effect.
4. The Amended and Restated By-laws of the Company, as certified by
an Assistant Secretary of the Company on the date hereof as being
complete, accurate and in effect.
5. Resolutions of the Board of Directors of the Company adopted on
October 22, 1998 relating to, among other things, approval of
the Plan and the registration of the Shares, as certified by an
Assistant Secretary of the Company on the date hereof as being
complete, accurate and in effect.
In our examination of the aforesaid documents, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). This opinion letter is given,
and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware. We express no opinion herein
as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and the Plan and upon the
approval of the Plan by the shareholders of the Company, will be validly
issued, fully paid and non-assessable under the General Corporation Law of the
State of Delaware.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter, and should not be quoted in whole
or in part or otherwise be referred to, nor be filed with or furnished to any
governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE> 1
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
Orbital Sciences Corporation:
We consent to the use of our reports incorporated herein by reference, which
reports are included in the Company's 1997 Annual Report on Form 10-K.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Washington, D.C.
December 30, 1998
<PAGE> 1
EXHIBIT 99.1
ORBITAL SCIENCES CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
SECTION 1. PURPOSE OF PLAN
The Orbital Sciences Corporation 1999 Employee Stock Purchase Plan
(the "Plan") is designed to encourage and assist employees of Orbital Sciences
Corporation ("Orbital") and its subsidiaries (collectively, the "Company") to
acquire an equity interest in Orbital through the purchase of shares of Orbital
common stock ("Common Stock"). This Plan is intended to constitute an "employee
stock purchase plan" within the meaning of Section 423 of the Internal Revenue
Code (the "Code").
SECTION 2. ADMINISTRATION OF THE PLAN
The Plan shall be administered by Orbital's Board of Directors (the
"Board") or by a committee of the Board (the "Committee") appointed by the
Board (the Board or any such Committee being herein referred to as the
"Administrator"). Until such time as the Board shall determine otherwise, the
Human Resources and Nominating Committee of the Board shall serve as
Administrator. The Administrator shall have full power and authority, not
inconsistent with the express provisions of the Plan, to administer and
interpret the Plan, including the authority to:
(i) grant options and authorize the issuance of shares;
(ii) make and amend all rules, regulations, guidelines, procedures
and policies for administering the Plan;
(iii) appoint persons and entities to act as designated
representatives on its behalf in administering the Plan
pursuant to its provisions (in which case the term
"Administrator" as used herein shall include such
persons or entities to the extent of such appointment);
and
(iv) decide all questions and settle all disputes that may arise in
connection with the Plan.
All interpretations, decisions and determinations made by the
Administrator shall be binding on all persons concerned.
SECTION 3. NATURE AND NUMBER OF SHARES
The Common Stock subject to issuance under the terms of the Plan
shall be authorized but unissued shares or previously issued shares reacquired
and held by the Company. The aggregate number of shares that may be issued under
the Plan shall not exceed 2,000,000 shares of Common Stock.
<PAGE> 2
In the event of any reorganization, recapitalization, stock split,
reverse stock split, stock dividend, combination of shares, exchange of shares,
merger, consolidation, offering of rights or other similar change in the capital
structure of the Company, the Board or the Committee may make such adjustment,
if any, as it deems appropriate in the number, kind and purchase price of the
shares available for purchase under the Plan and in the maximum number of shares
which may be issued under the Plan.
SECTION 4. ELIGIBILITY
Each individual employed by Orbital or a Participating Subsidiary
(as hereinafter defined), except as provided below, shall be eligible to
participate in the Plan ("Employee"). The following individuals shall be
excluded from participation:
(a) Persons who, immediately upon the grant of an Option, own
directly or indirectly, or hold options or rights to acquire, an aggregate of
five percent (5%) or more of the total combined voting power or value of all
outstanding shares of all classes of Orbital or any Subsidiary;
(b) Persons who are customarily employed by the Company less than
twenty (20) hours per week or for not more than five (5) months in any calendar
year;
For purposes of the Plan, a "Subsidiary" is any corporation in which
Orbital owns, directly or indirectly, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock. A
"Participating Subsidiary" is any corporation meeting the requirements above
that is designated by the Board or the Committee as a subsidiary whose employees
are eligible to participate in the Plan. Notwithstanding any other provision
hereunder, employees of Orbital Imaging Corporation, ORBCOMM Global, L.P.,
ORBCOMM International, L.P. and ORBCOMM U.S., L.P., who are not also employees
of Orbital or a Participating Subsidiary, shall not be eligible to participate
in the Plan.
SECTION 5. ENROLLMENT AND WITHDRAWAL
Each eligible Employee may enroll or re-enroll in the Plan as of the
first day of any Option Period (as hereinafter defined) after the Employee first
becomes eligible to participate. To enroll, an Employee must complete and sign
an enrollment form (including a payroll deduction authorization) in a form
acceptable to the Administrator and submit it to the Company at least 15
business days prior to the commencement of such Option Period or by such other
date as the Administrator may prescribe. Participation in the Plan is voluntary.
A "Participant" shall be an Employee enrolled in the Plan.
Any Participant may withdraw from the Plan by notifying the Company
at any time during the Option Period prior to the Purchase Date (as defined
below). Upon such a
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withdrawal, the entire amount contributed to the Plan by the
Participant will be refunded without interest as soon as administratively
practicable.
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SECTION 6. GRANT OF OPTIONS
Under the Plan, each Option Period shall be a period of
approximately six (6) months beginning on the first trading days of January and
July, respectively, and ending on the last trading days of June and December,
respectively, or such other period as the Board or the Committee may designate
from time to time.
Each person who is a Participant on the first day of an Option
Period (the "Grant Date") will as of such day be granted an option for the
Period (the "Option"). Such Option will be for the number of whole and
fractional shares of Common Stock to be determined by dividing (i) the balance
credited to the Participant's Account by means of payroll deduction (or such
other means deemed acceptable by the Administrator) as of the Purchase Date (as
determined under Section 8 below), by (ii) the purchase price per share of the
Common Stock as determined under Section 8.
In no event shall a Participant or his or her beneficiary(ies) be
entitled to purchase, for any Option Period, more than the lesser of (i) the
number of shares obtained by dividing $25,000 by the fair market value of a
share of Common Stock on the Grant Date for such Option Period, or (ii) the
maximum number of shares permitted to be purchased under Section 7(c) below.
The Administrator will reduce, on a substantially proportionate
basis, the number of shares of Common Stock receivable by each Participant upon
exercise of his or her Option for an Option Period in the event that the number
of shares then available under the Plan is otherwise insufficient, and will
return without interest any unused cash remaining in the Participant's account
as soon as administratively practicable.
SECTION 7. METHOD OF PAYMENT
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(a) Form of Payment. Payment for shares shall be made in
installments through after-tax payroll deductions over the Option Period, with
such deductions taken from pay periods ending during the Option Period, or in
such other form of payment deemed acceptable by the Administrator.
Subject to the limits below and in Section 8, each Participant may
elect through payroll withholding during the Option Period (or such other means
deemed acceptable by the Company) to have credited to his or her account an
amount not greater than twenty percent (20%) of Compensation (as defined below);
provided that the Administrator from time to time before an enrollment date may
establish limits other than those herein described for all purchases to occur
during the relevant Option Period.
For purposes of the Plan, "Compensation" shall mean all compensation
paid to the Participant by the Company and currently includible in his or her
income, including such amounts as commissions, overtime, shift differential and
other amounts includible in the definition of compensation provided in the
Treasury Regulations promulgated under
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Section 415 of the Code, plus any amount that would be so included but for the
fact that it was contributed to a qualified plan pursuant to an elective
deferral under Section 401(k) of the Code, but not including (i) payments under
stock option plans and other employee benefit plans or other amounts excluded
from the definition of compensation provided in the Treasury Regulations under
Section 415 of the Code and (ii) bonuses.
A Participant may increase or decrease the rate of withholding on a
prospective basis effective as to future Option Periods by giving at least two
(2) weeks written notice (in a form acceptable to the Administrator) to the
Company.
(b) Accounts. All payments by each Participant shall be credited to
such Participant's account. No interest will be paid on amounts credited to a
Participant's Account.
(c) Limits on Purchase. In no event shall the rights of any
Participant to purchase shares (under this Plan and under any other stock
purchase plans of Orbital or any Subsidiary) accrue at a rate that exceeds
$25,000 as measured by the fair market value of such shares (determined in the
case of each such share as of the date of grant of the related option) for the
calendar year.
SECTION 8. PURCHASE PRICE
The purchase price of Common Stock issued pursuant to the exercise
of an Option shall be eighty-five percent (85%) of the lower of the fair market
value of Common Stock on (a) the Grant Date for the Option Period, or (b) the
last trading day of the Option Period (the "Purchase Date").
Fair market value shall mean the closing price of Common Stock on
the national securities exchange on which the Common Stock is then principally
traded or, if that measure of price is not available, on a composite index of
such exchanges or, if that measure of price is not available, in a national
market system for securities. In the event that there are no sales of Common
Stock on any such exchange or market on the Grant or Purchase Date, the fair
market value of the Common Stock shall be deemed to be the closing sales price
on the next preceding day on which Common Stock was sold on any such exchange or
market. In the event that the Common Stock is not listed on any such market or
exchange on the Grant or Purchase Dates, a reasonable valuation of the fair
market value of the Common Stock on such dates shall be made by the
Administrator.
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SECTION 9. EXERCISE OF OPTIONS
If an Employee is a Participant in the Plan on a Purchase Date, he
or she will be deemed to have exercised the Option granted to him or her for the
period ending on that Purchase Date. Upon such exercise, the Company will apply
the balance of the Participant's account to the purchase of the number of whole
or fractional shares of Common Stock determined under Section 6 and as soon as
practicable thereafter will issue and deliver said shares to the Participant.
Any cash remaining in the Participant's account will be refunded without
interest.
Notwithstanding anything herein to the contrary, Orbital's
obligation to issue and deliver shares of Common Stock under the Plan will be
subject to the approval required by any governmental authority in connection
with the authorization, issuance, sale or transfer of said shares, to any
requirements of any national securities exchange applicable thereto, and to
compliance by Orbital with other applicable legal requirements in effect from
time to time.
SECTION 10. TERMINATION OF EMPLOYMENT
Subject to Section 11, upon the termination of a Participant's
employment with the Company for any reason other than death, the Participant's
account balance shall be frozen to future accruals and the Participant may elect
to (i) withdraw from Plan participation, as provided in Section 5, or (ii) apply
the balance of his or her Account as of the Purchase Date toward the exercise of
the Option pursuant to Section 9 of the Plan. If no written election is made by
the Participant prior to the Purchase Date, the Participant shall be deemed to
have elected to exercise the Option in the manner described in (ii) above.
Notwithstanding the above, a terminated Employee will cease to be a
Participant upon the earliest of the following events: (i) his or her voluntary
withdrawal from the Plan, as provided in Section 5, (ii) the last day of the
Option Period (after completion of the Option exercise) or (iii) three months
following his or her termination date. Upon the cessation of participation, any
Option held by the Participant under the Plan will be deemed cancelled, the
balance of the Participant's Account will be returned to the Participant,
without interest, as soon as administratively practicable and the Participant
will have no further rights under the Plan.
SECTION 11. DEATH OF A PARTICIPANT
Each Participant may designate one or more beneficiaries who, in the
event of the Participant's death, would receive any Common Stock and/or cash
credited to the Participant under the Plan. In the case of a Participant who is
married at time of death, the Administrator may condition any designation of a
beneficiary other than the Participant's spouse on the written consent of such
spouse. Such designation will also provide for the election by the Participant
of either (i) cancellation of the Participant's Option upon his or her death as
provided in Section 5 or (ii) application as of the Purchase Date of the balance
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of the deceased Participant's account at the time of death to the exercise of
the Option, pursuant to Section 9 of the Plan. In the absence of a valid
election otherwise, the death of a Participant will be deemed to effect a
cancellation of his or her Option. A designation of beneficiary and election may
be changed by the Participant at any time. Any such designation or change in
designation, if made in accordance with the Plan and in a form and manner that
is acceptable to the Administrator, shall be effective upon receipt by the
Company and shall be the exclusive means of designating a beneficiary under the
Plan. In the absence of a proper beneficiary designation under the Plan, a
deceased Participant will be deemed to have elected cancellation under (i)
above, and the balance in his or her account under the Plan will be refunded
without interest to his or her estate.
As soon as administratively feasible after the death of a
Participant, any Common Stock and/or cash credited to the Participant under the
Plan shall be delivered to the Participant's designated beneficiaries or, in the
absence of such designation, to the executor, administrator or other legal
representative of the Participant's estate. Such delivery and payment shall
relieve the Company of further liability to the deceased Participant or his or
her beneficiaries with respect to the Plan. If more than one beneficiary is
designated, each beneficiary shall receive an equal portion of the account
unless the Participant has given express contrary instructions.
SECTION 12. ASSIGNMENT
No Participant may sell, pledge, assign, transfer or otherwise
create a lien on any funds, securities, rights or other property held for the
account of the Participant under the Plan, except as provided in Section 11
above. A Participant's right to purchase shares under the Plan shall be
exercisable during the Participant's lifetime only by the Participant. If this
provision is violated, the Participant's election to purchase Common Stock shall
terminate and the only obligation of the Company remaining under the Plan will
be to refund to the Participant the amount then credited to his or her Account.
SECTION 13. EQUAL RIGHTS AND PRIVILEGES
All eligible Employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provisions of the Code
and related regulations. Any provision of the Plan which is inconsistent with
Section 423 or any successor provision of the Code shall without further act of
amendment by the Company be reformed to comply with the requirements of Section
423. This Section 13 shall take precedence over all other provisions of the
Plan.
SECTION 14. RIGHTS AS STOCKHOLDER
A Participant shall have no rights as a stockholder under an Option
until he or she becomes a stockholder as herein provided. A Participant will
become a stockholder with
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respect to shares for which payment has been completed as provided in Section 8
as of the close of business on the Purchase Date for the Option Period.
SECTION 15. MODIFICATION AND TERMINATION OF THE PLAN
The Board or the Committee may terminate the Plan at any time and
may at any time and from time to time amend the Plan in any manner permitted by
law. No amendment shall be effective unless within one (1) year after it is
adopted by the Board it is approved by Orbital's shareholders in the manner
prescribed under the Treasury Regulations under Section 423 of the Code, if such
amendment would:
(i) increase the number of shares reserved for purchase under
the Plan,
or
(ii) change the designation of corporations whose employees
may be offered Options under the Plan, except as
permitted under Treasury Regulations Section
1.423-2(c)(4).
In the event the Plan is terminated, the Board or Committee may
elect to terminate all outstanding Options either immediately or upon completion
of the purchase of shares on the next Purchase Date, unless the Board has
determined that the right to make all such purchases shall expire on some other
designated date occurring prior to the next Purchase Date. If Options are
terminated prior to expiration, all funds contributed to the Plan that have not
been used to purchase shares shall be returned without interest to the
Participants.
SECTION 16. BOARD AND SHAREHOLDER APPROVAL; EFFECTIVE DATE
This Plan was adopted by the Board on October 22, 1998. The
Effective Date of the Plan shall be January 1, 1999, subject to shareholder
approval. In the event shareholder approval of the Plan is not obtained in the
manner prescribed under Treasury Regulations under Section 423 of the Code,
Participants will receive a full refund of amounts credited to their accounts as
soon as administratively practicable.
SECTION 17. OTHER PROVISIONS
Options and other documentation under the Plan shall contain such
other provisions as the Administrator shall deem advisable, provided that no
such provision shall conflict with the express terms of the Plan.
SECTION 18. EMPLOYMENT RIGHTS
Nothing contained in the provisions of the Plan shall be construed
to give to any individual the right to be retained in the employ of the Company
or to interfere with the right of the Company to discharge any employee at any
time.
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* * *
The Plan was duly adopted by the Board of Directors of Orbital as of
October 22, 1998.
<TABLE>
<S> <C>
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Leslie C. Seeman
Senior Vice President, General Counsel and Secretary
The Plan was duly approved by the stockholders of Orbital on .
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Leslie C. Seeman
Senior Vice President, General Counsel and Secretary
</TABLE>
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