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EXHIBIT 10.59
Consulting Agreement
AGREEMENT, made this 15th day of August, 1997, between SPACEHAB, INC., a
corporation organized under the laws of Washington with its principal place of
business at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "SPACEHAB") and Xxxxxx X. Xxxxxxx with offices at 0000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Consultant").
WHEREAS, Consultant desires to provide certain consulting services to
SPACEHAB and SPACEHAB desires to obtain such services from Consultant in a
capacity in which Consultant may receive or contribute confidential or
proprietary information;
NOW, THEREFORE, in consideration of such Consulting Services, and other
good and valuable consideration given or to be given, SPACEHAB and Consultant
hereby AGREE:
1. Consultant shall render workmanlike consulting services for SPACEHAB
in connection with potential strategic acquisition opportunities and investor
relations support, as more fully described in Exhibit A attached hereto and
incorporated by this reference ("Consulting Services") for a term of one year
from the above referenced date. Consultant recognizes that all information
regarding such strategic acquisitions and/or investor relations (as well as all
other SPACEHAB related business information) which (i) may be or shall have been
imparted to Consultant by SPACEHAB or its agents, or (ii) is created or obtained
by Consultant while performing, or as a result of performing (directly or
indirectly) Consulting Services, is confidential and proprietary to SPACEHAB.
Furthermore, the identity and character of services and products required by
SPACEHAB'S customers, as well as all actual or potential business acquisitions,
joint ventures, alliances and other business arrangements of any kind constitute
confidential and/or proprietary business information of SPACEHAB.
2. The attached Confidentiality and Nondisclosure Agreement between
Consultant and SPACEHAB shall be executed simultaneously with this Agreement and
shall govern Consultant's rights and responsibilities with respect to all
SPACEHAB confidential and/or proprietary information disclosed to or otherwise
obtained by Consultant as noted in Paragraph I above. It is understood that the
success of SPACEHAB requires that SPACEHAB exert extraordinary measures to
safeguard the confidentiality of all such information, and Consultant agrees to
abide by all such measures established by SPACEHAB.
3. Consultant shall be directed by Xxxxxxx X. Xxxxxxxx and Xxxxxxxx
Xxxxxxx (respectively, SPACEHAB's Chief Executive Officer and Chief Financial
Officer) in performance of the Consulting Services. Xx. Xxxxxxxx and Xx. Xxxxxxx
shall request and direct the specific Consulting Services tasks hereunder.
4. For the Consulting Services, SPACEHAB agrees to pay Consultant a
retainer fee of $2,000/month for the term hereof, and an Option to purchase
10,000 shares of SPACEHAB Common Stock at an exercise price per share
corresponding to the price of SPACEHAB Common Stock on the NASDAQ market as of
close of business August 15, 1997. The Options shall vest immediately upon their
granting. Actual expenses for travel, hotel accommodations and automobile rental
incurred by Consultant during performance of Consulting Services tasks hereunder
shall be reimbursed by SPACEHAB within 30 days of submittal of expense documents
to the company.
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5. Either Consultant or SPACEHAB may terminate this Agreement, without
cause, with three days notice to the other party.
6. Upon termination of the Consulting Services, Consultant shall promptly
deliver to SPACEHAB all ( of whatever media, including but not limited to
written, digital or other computerized media, tape, disk, CD, etc.) all
documents and media, including all copies thereof, and any other materials of a
proprietary or confidential nature relating to SPACEHAB's business and which are
in the possession or under the control of Consultant. Consultant shall promptly
return to SPACEHAB any information, of whatever nature, that relates to, or is
generated by any, actual or potential, customer of SPACEHAB's services, or any
actual or potential business acquisition or other relationship (including but
not limited to joint ventures, alliances and partnerships). SPACEHAB shall pay
Consultant for the days actually worked by Consultant up to the date of
termination (including any partial day on a pro-rata basis).
7. The parties hereto desire and agree that any controversy or claim
arising out of, or relating to this Agreement, or breach thereof, shall be
settled by arbitration in Tysons Corner, Virginia, in accordance with the rules
of the American Arbitration Association, and final judgment upon award rendered
may be entered in any court having jurisdiction thereof.
8. This Agreement constitutes the complete agreement and understanding
with respect to the subject matter hereof between the parties and supersedes all
previous or contemporaneous written or oral representations, agreements,
contracts, etc. of whatever kind or nature.
CONSULTANT SPACEHAB, INC.
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
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Title: Title: Vice President-Finance
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EXHIBIT A
XXXXXXX CONSULTING AGREEMENT
CONSULTING SERVICES
A. Investor Relations Support
- Work for continued improvement and expansion of the investor
relations program
- Work to improve skills and contracts of investor
relations officer, while continuing to expand and enhance the
CFO's exposure in the financial community
- General advice regarding investment community
requirements
B. Investment Community Introductions
- Expand SPACEHAB market visibility
- Expand coverage of company by analysts
- Help identify and recruit additional market makers
and possible financing sources
- Continue to add to the company's creditability and
acceptance in the financial community
C. Potential Strategic Acquisitions Opportunities/Information In SPACEHAB's
Strategic Targeted Markets, Including Aerospace, Biotechnology,
General Hi-Technology And Software Integration
- Introduction to potential partners/acquisitions
- Leads regarding potential opportunities
- Facilitate potential partnerships/acquisitions
- Help review future acquisition candidates
D. Corporate Governance
- Help implement appropriate corporate governance practices
- Work to expand board procedures and effectiveness
E. Be Available For Additional Assignments As Appropriate
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CONFIDENTIALITY & NONDISCLOSURE AGREEMENT
This Confidentiality and Nondisclosure Agreement ("Agreement") is entered
into by and between SPACEHAB, Inc., a Washington State corporation, having its
corporate headquarters at 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000
(hereinafter "SPACEHAB"), and Xxxxxx X. Xxxxxxx, having offices at 0000 Xxxxxxx
Xxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter "Consultant").
WHEREAS, SPACEHAB desires to provide and CONSULTANT desires to receive
sensitive and proprietary information, including technical, marketing and/or
financial data, relating to certain SPACEHAB business pursuits and activities in
order for CONSULTANT to perform consulting services for SPACEHAB; and
WHEREAS, SPACEHAB, seeks to fully protect such confidential proprietary
information from any and all unauthorized use, reproduction, or disclosure;
NOW, THEREFORE, the parties hereto agree as follows:
1. "Proprietary Information" shall mean any and all information regarding
SPACEHAB's business activities, competitors, customers, trade secrets,
industrial and technical knowledge, etc. (including but not limited to
marketing, technical, financial and other business data or information) however
disclosed by SPACEHAB or its agents (including but not limited to written, oral,
visual, magnetic recording or any other machine readable form) which is directly
or indirectly related to any consulting or other services requested by SPACEHAB
to be provided by CONSULTANT, unless SPACEHAB explicitly exempts such
information or data in writing from coverage by this Agreement.
2. CONSULTANT agrees that it, as well as all its directors, officers,
employees and agents, will protect from unauthorized use, reproduction, and
disclosure and will not disclose to any person or entity outside CONSULTANT or
to any person within CONSULTANT not having a need to know for the purposes of
the Agreement and will not use or reproduce, except for the purposes of this
Agreement, any and all Proprietary Information disclosed by SPACEHAB or its
agents.
3. CONSULTANT shall not be liable for disclosure of certain Proprietary
Information if CONSULTANT obtains the prior written approval of SPACEHAB to
disclose such Proprietary Information.
4. Any and all Proprietary Information received by CONSULTANT hereunder
shall be fully protected as required by this Agreement for a period of five (5)
years from the date of CONSULTANT's receipt thereof.
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5. CONSULTANT shall not be liable for the inadvertent or accidental
disclosure of Proprietary Information received hereunder provided that it has
exercised the same degree of care in protecting such Proprietary Information as
it normally exercises to protect its own proprietary and confidential
information (provided such degree of care is no less than a reasonable degree
under the circumstances) and provided, further, that immediately upon
discovering the loss or unauthorized disclosure of such Proprietary Information
received under this Agreement, it notifies SPACEHAB thereof and takes all
reasonable steps to retrieve, and prevent further unauthorized disclosure of
such Proprietary Information.
6. This Agreement shall not restrict disclosure or use of Proprietary
Information which: (1) was in the public domain at the time of disclosure or
thereafter enters the public domain through no breach of this Agreement by
CONSULTANT; (2) was, at the time of receipt, otherwise known to CONSULTANT
without restrictions as to use or disclosure; (3) becomes known to CONSULTANT
from a source other than SPACEHAB or its agents without breach of this Agreement
by CONSULTANT; (4) is developed independently by CONSULTANT without the use of
Proprietary Information disclosed to it hereunder; or (5) is disclosed more than
five years after it is first received hereunder.
8. Nothing contained in this Agreement shall be construed as granting or
conferring rights by license or otherwise in any Proprietary Information
disclosed under this Agreement.
9. The respective address and point of contact for each party to which
all correspondence and notices hereunder are to be sent is as follows:
If to SPACEHAB: If to CONSULTANT:
Attn.: Xxxxxxx Xxxxxx Attn.: Xxxxxx X. Xxxxxxx
General Counsel 8212 Burning Tree Road
SPACEHAB, Inc. Xxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxx,XX 00000
Each party may change its respective address or point of contact by delivering a
written notice thereof to the other party.
10. This Agreement is not intended to, and shall not, constitute, create,
give effect to, or otherwise recognize a joint venture, partnership, pooling
arrangement or formal business entity between the parties of any kind. The
rights and obligations of the parties shall be limited to those expressly set
forth herein. Nothing herein shall be construed as providing for the sharing of
profits or losses arising out of the efforts of either or both parties. Each
party shall act as an independent contractor and not as an agent of the other
for any purpose
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whatsoever and neither party shall have any authority to bind the other party
except as specifically set forth herein. Neither party shall be liable to the
other for any of the costs associated with the other party's efforts or
compliance in connection with this Agreement.
11. This Agreement shall become effective on the date on which it is
signed by the last of the parties hereto to sign, and it shall expire one (l)
year thereafter, at which time all proprietary information received hereunder
(and any copies thereof) shall be returned to the providing party unless a
different arrangement has been entered into between the parties in writing.
Expiration of the term of this Agreement, however, shall have no effect on the
obligations imposed on the party with respect to the protection of proprietary
information received hereunder for the full period of time required by Paragraph
4 of this Agreement.
12. This is the entire agreement between the parties concerning the
exchange and protection of Proprietary Information, and it supersedes any prior
written or oral agreements relating thereto and may not be amended or modified
except by subsequent agreement in writing signed by a duly authorized officer or
representative of each party.
l3. Each signatory, by signing below, certifies that he or she has
authority to bind to this Agreement the respective party for which he or she
signs.
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14. This Agreement does not contemplate export from the United States of
any "technical data" (as defined by the regulation of the Office of Defense
Trade Controls, United States Department of State) related to items on the U.S.
Munitions List. If the parties determine that the export of any "technical data"
is necessary, the Parties will seek the necessary license or approval prior to
the export of any such "technical date".
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed in duplicate originals by its respective duly authorized
representative as follows:
CONSULTANT SPACEHAB, Inc.
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxxx
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Title: Title: Vice President-Finance
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Date: 8/14/96 Date: 8/14/96
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