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:
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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 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 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
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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 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
3
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 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
4
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 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.
5
(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 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.
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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
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
7
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
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
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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 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.
9
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.
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
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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 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 XX Xxxxxx & Xxxxxxx LLP
Space Infrastructure 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000 South
1-5 Huenefeldstrasse Washington, D.C. 20004
D-28199 Bremen Attention: Xxxxxxx X. Xxxxx, Esq.
Germany Fax No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxxx
Fax No.: 000-00-000-000-0000
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Notices to the Company with a copy to:
Spacehab, Incorporated Xxxxx Xxxxxxxxxx LLP
000 X Xxxxxx, XX 1301 Avenue of the Americas
Suite 814 New York, NY 10019
Xxxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxx XX, Esq.
Attention: President Fax No.: (000) 000-0000
Fax No.: (000) 000-0000
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 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.
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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.
(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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