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Exhibit 4.2
EXECUTION COPY
$55,000,000
SPACEHAB, INCORPORATED
8% Convertible Subordinated Notes due 2007
REGISTRATION RIGHTS AGREEMENT
October 15, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WOOD GUNDY SECURITIES CORP.
XXXXXXXXXXX & CO., INC.
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
SPACEHAB, Incorporated, a Washington corporation (the "Company"),
proposes to issue and sell to Credit Suisse First Boston Corporation, CIBC Wood
Gundy Securities Corp. and Xxxxxxxxxxx & Co., Inc. (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), $55,000,000 aggregate principal amount of
its 8% Convertible Subordinated Notes due 2007 (the "Notes"). The Notes will be
issued pursuant to an Indenture, to be dated as of October 15, 1997 (the
"Indenture") among the Company and First Union National Bank (the "Trustee").
Under the terms of the Indenture, the Notes are convertible, in whole or in
part, into shares of common stock, no par value, of the Company (the "Conversion
Shares" and, together with the Notes, the "Securities") at the option of the
holders thereof at any time following the date of original issuance thereof at
the conversion price set forth in the Confidential Offering Circular dated
October 15, 1997. As an inducement to the Initial Purchasers, the Company agrees
with the Initial Purchasers, for the benefit of the holders of the Notes
(including, without limitation, the Initial Purchasers) and Conversion Shares
(collectively, the "Holders"), as follows:
1. Resale Shelf Registration. The Company shall, at its cost, as
promptly as practicable (but in no event more than 90 days after the Initial
Closing, as defined under the Purchase Agreement) file with the Commission and
thereafter shall use
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its best efforts to cause to be declared effective a registration statement (the
"Resale Shelf Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act") relating to the offer
and sale of the Transfer Restricted Securities (as defined in Section 5 hereof)
by the Holders thereof from time to time in accordance with the methods of
distribution set forth in the Resale Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "Resale Shelf Registration");
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Resale Shelf
Registration Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Resale Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer period if extended
pursuant to Section 2(h) below) from the date of its effectiveness or such
shorter period that will terminate when all the Securities covered by the Resale
Shelf Registration Statement (i) have been sold pursuant thereto or (ii) are no
longer restricted securities (as defined in Rule 144(k) under the Securities
Act, or any successor rule thereof) (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Resale Shelf Registration Statement effective
during the required period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Resale Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of the
effective date of the Resale Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact or
omit 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.
2. Registration Procedures. In connection with the Resale Shelf
Registration contemplated by Section 1 hereof, the following provisions apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Resale Shelf
Registration Statement and each amendment thereof and each Supplement, if any,
to the prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original offering)
is participating in the Resale Shelf Registration, the Company shall use its
best efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose and
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(ii) include the names of the Holders, who propose to sell Securities pursuant
to the Resale Shelf Registration Statement, as selling security holders.
(b) The Company shall give written notice to the Initial Purchasers
and the Holders of the Securities (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made):
(i) when the Resale Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the Resale Shelf
Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Resale Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Resale Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Resale Shelf Registration Statement or the prospectus in
order that the Resale Shelf Registration Statement or the prospectus does not
contain an untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the prospectus, in light of the circumstances under which they were
made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Resale Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Resale Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Company shall, during the Resale Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the Resale
Shelf Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Resale Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably request.
The Company
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consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto, included in
the Resale Shelf Registration Statement.
(f) Prior to any public offering of the Securities, pursuant to any
Resale Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered by
such Resale Shelf Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Resale Shelf Registration Statement
free of any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales of
the Securities pursuant to such Resale Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Resale Shelf Registration Statement, the
Company shall promptly prepare and file a post-effective amendment to the Resale
Shelf Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
notifies the Initial Purchasers and the Holders in accordance with paragraphs
(ii) through (v) of Section 2(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the Initial
Purchasers and the Holders shall suspend use of such prospectus, and the period
of effectiveness of the Resale Shelf Registration Statement provided for in
Section l(b) above shall be extended by the number of days from and including
the date of the giving of such notice to and including the date when the Initial
Purchasers and the Holders of the Securities shall have received such amended or
Supplemented prospectus pursuant to this Section 2(h).
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(i) Not later than the effective date of the Resale Shelf
Registration Statement, the Company will provide CUSIP numbers for the Notes and
the Conversion Shares registered under the Resale Shelf Registration Statement,
and provide the applicable trustee with printed a certificate for the Notes in a
form eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Resale Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 1l(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 1l(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Resale Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the event that
such qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
application provisions of the Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Resale Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of the Securities as
the Company may from time to time reasonably require for inclusion in the Resale
Shelf Registration Statement, and the Company may exclude from such registration
the Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other actions, if any, as any Holder of the Securities shall reasonably
request in order to facilitate the disposition of the Securities pursuant to any
Resale Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection
by the Holders, any underwriter participating in any disposition pursuant to the
Resale Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company and (ii)
cause the Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Resale Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
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inspection and information gathering shall be coordinated by one counsel (the
"Designated Counsel"). Shearman & Sterling shall be the Designated Counsel for
all purposes hereof until another Designated Counsel shall have been chosen by
the Holders of a majority in principal amount of the Securities covered by the
Resale Shelf Registration Statement (provided that Holders of Conversion Shares
shall be deemed to be Holders of the aggregate principal amount of Notes from
which such Conversion Shares were converted).
(o) The Company, if requested by any Holder of Securities covered
thereby, shall cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Resale Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall include,
without limitation, the due incorporation and good standing of the Company and
its subsidiaries, the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section 2(m)
hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the applicable Securities; the absence of
material legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be obtained in
connection with the Resale Shelf Registration Statement, the offering and sale
of the applicable Securities, or any agreement of the type referred to in
Section 2(m) hereof; the compliance as to form of such Resale Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and, as of the date of the opinion and as of the effective
date of the Resale Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such Resale Shelf
Registration Statement and the prospectus included therein, as then amended or
supplemented, and from any documents incorporated by reference therein of an
untrue statement of a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading (in the case of any such documents, in light of the circumstances
existing at the time that such documents were filed with the Commission under
the Exchange Act); (ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of
the applicable Securities and (iii) its independent public accountants and the
independent public accountants, if any, with respect to any other entity for
which financial information is provided in the Resale Shelf Registration
Statement to provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
(p) The Company will use its best efforts to (a) if the Notes have
been rated prior to the initial sale of such Notes, confirm such ratings will
apply to the Notes covered by the Resale Shelf Registration Statement, or (b) if
the Notes were not
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previously rated, cause the Notes covered by the Resale Shelf Registration
Statement to be rated with the appropriate rating agencies, if so requested by
Holders of a majority in aggregate principal amount of Securities covered by
such Resale Shelf Registration Statement, or by the managing underwriters, if
any.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Resale Shelf Registration Statement
relating to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such Resale
Shelf Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Securities, (ii)
indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 4 hereof and (iii) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(r) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by the Resale
Shelf Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 and 2 hereof, whether or not a Resale Shelf Registration Statement is
filed or becomes effective, and shall bear or reimburse the Holders of the
Securities covered thereby for the reasonable fees and disbursements of the
Designated Counsel (provided that Holders of Conversion Shares shall be deemed
to be Holders of the aggregate principal amount of Notes from which such
Conversion Shares were converted) to act as counsel for the Holders in
connection therewith.
4. Indemnification. a) The Company agrees to indemnify and hold
harmless each Holder of the Securities and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act (each
Holder and such controlling persons are referred to collectively as the
"Indemnified Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arising out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Resale
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Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Resale Shelf
Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission or alleged omission made in the Resale Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Resale Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
made available to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to the Resale Shelf Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any Holder from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder under the Securities Act
in connection with such purchase and any such loss, claim, damage or liability
of such Holder results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of the Securities Act or the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Resale Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus to the Resale Shelf
Registration, or arise out of are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth
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immediately preceding this clause, shall reimburse, as incurred, the Company for
any legal or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which such Holder may otherwise have to the
Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the sale of the Securities,
pursuant to the Resale Shelf Registration, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other
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indemnified party, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), the Holders shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Resale Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 1l(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contributions as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Resale Shelf Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation or this Agreement or any investigation made by or on behalf of any
indemnified xxxxx.
5. Additional Interest Under Certain Circumstances. a) Additional
interest (the "Additional Interest") with respect to the Notes shall be assessed
as follows if any of the following events occur (each event in clauses (i)
through (iii) below a "Registration Default":
(i) If on or prior to the 90th day after the first date of original
issuance of the Notes, the Resale Shelf Registration Statement has not been
filed with the Commission;
(ii) If on or prior to the 120th day after the first date of
original issuance of the Notes, the Resale Shelf Registration Statement is not
declared effective by the Commission; or
(iii) If after the Resale Shelf Registration Statement is declared
effective (A) such Resale Shelf Registration Statement thereafter ceases to be
effective; or (B) such Resale Shelf Registration Statement or the related
prospectus ceases to be usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which the
related prospectus forming part of such Resale Shelf Registration Statement
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
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circumstances under which they were made not misleading, or (2) it shall be
necessary to amend such Resale Shelf Registration Statement or supplement the
related prospectus, to comply with the Securities Act or the Exchange Act or the
respective rules thereunder.
Additional Interest shall accrue on the Notes over and above the interest set
forth in the title of the Securities from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured, at a rate of 0.50% per annum,
provided that in no event shall the rate of additional interest under this
Section 5(a) exceed 0.50% per annum.
(b) A Registration Default referred to in Section 5(a)(iii)(B)
hereof shall be deemed not to have occurred and be continuing in relation to the
Resale Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Resale Shelf Registration Statement to
incorporate annual audited financial information with respect to the Company
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (y) other
material events, with respect to the Company that would need to be described in
such Resale Shelf Registration Statement or the related prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Resale Shelf Registration Statement and related
prospectus to describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day such Registration Default occurs until such Registration Default is
cured.
(c) Any amounts of Additional Interest due pursuant to clause (i),
(ii) or (iii) of Section 5(a) above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i)
the date on which such Note has been effectively registered under the Securities
Act and disposed of in accordance with the Resale Shelf Registration Statement
or (ii) the date on which such Note is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
6. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Notes, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Notes may
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reasonably request, all to the extent required from time to time to enable such
Holder to sell Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Notes identified to the Company by the
Initial Purchasers upon request. Upon the request of any Holder of Notes, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing in this
Section 6 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Resale Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering, provided that it
or they are reasonably acceptable to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements to provide such information to the Company as
is necessary to include such persons as selling stockholders.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
(3) if to the Company, at its address as follows:
SPACEHAB, Incorporated
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx XX
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement on
the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
SPACEHAB, INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President of Finance (CFO)
The foregoing Registration Rights
Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
CIBC WOOD GUNDY
SECURITIES CORP.
XXXXXXXXXXX & CO., INC.
BY CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxx X. Xxxx
---------------------------
Name: Xxxxxx X. Xxxx
Title: Director
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