Exhibit 10.109
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
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This Employment and Non-Interference Agreement (this "Agreement"), is
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dated as of February 14, 2000, by and between Xxxxx X. Xxxxxxx (the "Executive")
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and SPACEHAB, Incorporated, a Washington corporation (the "Company").
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WHEREAS, the Company wishes to retain the future services of Executive
for the Company;
WHEREAS, Executive is willing, upon the terms and conditions set forth
in this Agreement, to provide services hereunder; and
WHEREAS, the Company wishes to secure Executive's non-interference,
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Nature of Employment
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Subject to Section 3, the Company hereby employs Executive, and
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Executive agrees to accept such employment, during the Term of Employment (as
defined in Section 3(a)), as Vice President, Finance and Chief Financial Officer
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and to undertake such duties and responsibilities as may be reasonably assigned
to Executive from time to time by the Chief Executive Officer, Board of
Directors of the Company, or such other appropriately authorized or designated
executive officer of the Company.
2. Extent of Employment
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(a) During the Term of Employment, Executive shall perform her
obligations hereunder faithfully and to the best of her ability under the
direction of the Chief Executive Officer, Chief Operating Officer, Board of
Directors of the Company, or such other appropriately authorized or designated
executive officer of the Company, and shall abide by the rules, customs and
usages from time to time established by the Company.
(b) During the Term of Employment, Executive shall devote all of her
business time, energy and skill as may be reasonably necessary for the
performance of her duties, responsibilities and obligations under this Agreement
(except for vacation periods and reasonable periods of illness or other
incapacity), consistent with past practices and norms with respect to similar
positions.
(c) Nothing contained herein shall require Executive to follow any
directive or to perform any act which would violate any laws, ordinances,
regulations or rules of any governmental, regulatory or administrative body,
agent or authority, any court or judicial authority, or any public, private or
industry regulatory authority. Executive shall act in accordance with the laws,
ordinances, regulations or rules of any
governmental, regulatory or administrative body, agent or authority, any court
or judicial authority, or any public, private or industry regulatory authority.
3. Term of Employment; Termination
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(a) The "Term of Employment" shall commence on February 14, 2000 and
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shall continue through July 1/st/, 2001 (the "Initial Term"), subject to
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automatic annual renewal for one-year terms thereafter (the "Additional Term"),
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unless either the Company or Executive notifies the other party of its intent
not to renew at least ninety (90) days prior to the end of the Initial Term or
Additional Term as the case may be. Should Executive's employment by the
Company be earlier terminated pursuant to Section 3(b), the Term of Employment
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shall end on the date of such earlier termination.
(b) Subject to the payments contemplated by Section 3(d), the Term of
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Employment may be terminated at any time by the Company:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability,
Executive is unable to perform and does not perform her duties
hereunder, for a continuous period of 90 days, and an experienced,
recognized physician specializing in such disabilities certifies as to
the foregoing in writing;
(iii) for Cause or Material Breach (each as defined in Section
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3(d));
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(iv) upon the continuous poor or unacceptable performance of
Executive's duties to the Company, in the sole judgment of the Board
of Directors of the Company, which has remained uncured for a period
of 90 days after the delivery of notice by the Company to the
Executive of such dissatisfaction with Executive's performance; or
(v) for any other reason not referred to in clauses (i) through
(iv), or for no reason, such that this Agreement shall be construed as
terminable at will by the Company.
Executive acknowledges that no representations or promises have been made
concerning the grounds for termination or the future operation of the Company's
business, and that nothing contained herein or otherwise stated by or on behalf
of the Company modifies or amends the right of the Company to terminate
Executive at any time, with or without Material Breach or Cause. Termination
shall become effective upon the delivery by the Company to Executive of notice
specifying such termination and the reasons therefor, subject to the
requirements for advance notice and an opportunity to cure provided in this
Agreement, if and to the extent applicable.
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(c) Subject to the payments contemplated by Section 3(d), the Term of
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Employment may be terminated at any time by Executive:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability,
Executive is unable to perform and does not perform her duties
hereunder, for a continuous period of 90 days, and an experienced,
recognized physician specializing in such disabilities certifies as to
the foregoing in writing;
(iii) as a result of the Company's material reduction in
Executive's authority, perquisites, position, title or
responsibilities (other than such a reduction by the Company because
of a temporary illness or disability or such a reduction which affects
all of the Company's senior executives on a substantially equal or
proportionate basis as a result of financial results, conditions,
prospects, reorganization, workout or distressed condition of the
Company), or the Company's willful, material violation of its
obligations under this Agreement, in each case, after 30 days' prior
written notice by Executive to the Company and its Board of Directors
and the Company's failure thereafter to cure such reduction or
violation within such 30 days; or
(iv) voluntarily or for any reason not referred to in clauses
(i) through (iii), or for no reason, in each case, after 90 days'
prior written notice to the Company and its Board of Directors.
(d) For the purposes of this Section 3:
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"Cause" shall mean any of the following: (i) Executive's conviction
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of any crime or criminal offense involving the unlawful theft or conversion of
substantial monies or other property or any other felony (other than a criminal
offense arising solely under a statutory provision imposing criminal liability
on the Executive on a per se basis due to the offices held by the Executive); or
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(ii) Executive's conviction of fraud or embezzlement.
"Material Breach" shall mean any of the following: (i) Executive's
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breach of any of his fiduciary duties to the Company or its stockholders or
making of a willful misrepresentation or omission which breach,
misrepresentation or omission would reasonably be expected to materially
adversely affect the business, properties, assets, condition (financial or
other) or prospects of the Company; (ii) Executive's willful, continual and
material neglect or failure to discharge his duties, responsibilities or
obligations prescribed by Sections 1 and 2 (other than arising solely due to
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physical or mental disability); (iii) Executive's habitual drunkenness or
substance abuse which materially interferes with Executive's ability to
discharge her duties, responsibilities or obligations prescribed by Sections 1
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and 2; (iv) Executive's willful, continual and material breach of any
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noncompetition or confidentiality agreement with the Company,
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including without limitation, those set forth in Sections 7 and 8 of this
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Agreement; and (v) Executive's gross neglect of her duties and responsibilities,
as determined by the Company's Board of Directors; in each case, for purposes of
clauses (i) through (v), after the Company or the Board of Directors has
provided Executive with 30 days' written notice of such circumstances and the
possibility of a Material Breach, and Executive fails to cure such circumstances
and Material Breach within those 30 days.
(i) In the event Executive's employment is terminated pursuant
to Section 3(b)(i) [death], 3(b)(ii) [disability] or 3(b)(v) [any
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other reason or no reason] or 3(c)(i) [death], 3(c)(ii) [disability]
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or 3(c)(iii) [material reduction], the Company will: (A) pay to
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Executive (or her estate or representative) the full amounts to which
the Executive would be entitled to under Section 4(a) for the period
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from effectiveness of termination through the sixth month anniversary
of termination; and (B) pay to Executive (or his estate or
representative) the benefits described in Section 6 through the sixth
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month anniversary of termination.
Payment of the amounts and provision of the benefits described
above will be made in accordance with the timetable and schedule for
such payments contemplated therefor as if such termination did not
occur, and will be subject to the other provisions of this Agreement,
including Section 3(g) and Sections 7 and 8. If the Company makes the
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payments required by this Section 3(d)(i), such payments will
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constitute severance and liquidated damages, and the Company will not
be obligated to pay any further amounts to Executive under this
Agreement or otherwise be liable to Executive in connection with any
termination.
(ii) In the event Executive's employment is terminated pursuant
to Section 3(b)(iii) [Cause or Material Breach], 3(b)(iv) [poor
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performance], or 3(c)(iv) [voluntary], the Company will not be
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obligated to pay any further amounts to Executive under this
Agreement.
(e) In the event the Term of Employment is terminated and the Company
is obligated to make payments to Executive pursuant to Section 3(d)(i),
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Executive shall have a duty to seek to obtain alternative employment; and if
Executive thereafter obtains alternative employment, the Company's payment
obligations under Section 3(d)(i), including its obligation to provide insurance
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coverage, if any, will be mitigated and reduced by and to the extent of
Executive's compensation under such alternative employment during the period for
which payments are owed by the Company pursuant to Section 3(d)(i). Moreover,
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in the event that Executive is employed by or engaged in a Competitive Business
as contemplated by Section 8(a)(i), then the Company will thereupon no longer be
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obligated to make payments under Section 3(d)(i).
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(f) In the event the Term of Employment is terminated and the Company
is obligated to make payments pursuant to Section 3(d)(i), Executive hereby
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waives any and all claims against the Company and its respective officers,
directors,
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employees, agents, or representatives, stockholders and affiliates relating to
her employment during the term hereof and this Agreement.
(g) Termination of the Term of Employment will not terminate Sections
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3(d), 3(f), and 7 through 21.
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4. Compensation
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During the Term of Employment, the Company shall pay to Executive:
(a) As base compensation for her services hereunder, in semi-monthly
installments, a base salary at a rate of not less than $185,000 per annum. Such
amounts may be increased (but not decreased) annually at the discretion of the
Compensation Committee of the Board of Directors based upon an annual review by
the Compensation Committee of the Board of Directors of Executive's performance.
(b) An annual incentive bonus, if any, based on Executive's and/or
Company's performance as determined and approved by the Compensation Committee
of the Board of Directors.
(c) An annual stock option grant, if any, based on Executive's,
Company's and/or Company Stock performance as determined and approved by the
Compensation Committee of the Board of Directors.
5. Reimbursement of Expenses
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During the Term of Employment, the Company shall pay all expenses,
including without limitation, transportation, lodging and food for Executive to
attend conventions, conferences and meetings that the Company determines are
necessary or in the best interest of the Company, and for any ordinary and
reasonable expenses incurred by Executive in the conduct of the Business of the
Company. Travel outside the United States shall be subject to the prior
approval of an executive officer of the Company.
6. Benefits
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During the Term of Employment, Executive shall be entitled to benefits
(including health, disability, pension and life insurance benefits consistent
with Company policy, or as increased from time to time), in each case, in
accordance with guidelines or established from time to time, by the Board of
Directors for senior executives of the Company.
7. Confidential Information
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(a) Executive acknowledges that her employment hereunder gives her
access to Confidential Information relating to the Company's Business and its
customers which must remain confidential. Executive acknowledges that this
information is valuable, special, and a unique asset of the Company's Business,
and that it has been and will be developed by the Company at considerable effort
and expense, and if it were to be
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known and used by others engaged in a Competitive Business, it would be harmful
and detrimental to the interests of the Company. In consideration of the
foregoing, Executive hereby agrees and covenants that, during and after the Term
of Employment, Executive will not, directly or indirectly in one or a series of
transactions, disclose to any person, or use or otherwise exploit for
Executive's own benefit or for the benefit of anyone other than the Companies,
Confidential Information (as defined in Section 10), whether prepared by
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Executive or not; provided, however, that any Confidential Information may be
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disclosed to officers, representatives, employees and agents of the Companies
who need to know such Confidential Information in order to perform the services
or conduct the operations required or expected of them in the Business (as
defined in Section 10). Executive shall his best efforts to prevent the removal
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of any Confidential Information from the premises of the Companies, except as
required in her normal course of employment by the Company. Executive shall use
her best efforts to cause all persons or entities to whom any Confidential
Information shall be disclosed by him hereunder to observe the terms and
conditions set forth herein as though each such person or entity was bound
hereby. Executive shall have no obligation hereunder to keep confidential any
Confidential Information if and to the extent disclosure of any thereof is
specifically required by law; provided, however, in the event disclosure is
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required by applicable law, Executive shall provide the Company with prompt
notice of such requirement, prior to making any disclosure, so that the Company
may seek an appropriate protective order. At the request of the Company,
Executive agrees to deliver to the Company, at any time during the Term of
Employment, or thereafter, all Confidential Information which he may possess or
control. Executive agrees that all Confidential Information of the Companies
(whether now or hereafter existing) conceived, discovered or made by him during
the Term of Employment exclusively belongs to the Companies (and not to
Executive). Executive will promptly disclose such Confidential Information to
the Company and perform all actions reasonably requested by the Company to
establish and confirm such exclusive ownership.
(b) In the event that Executive breaches her obligations in any
material respect under this Section 7, the Company, in addition to pursuing all
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available remedies under this Agreement, at law or otherwise, and without
limiting its right to pursue the same shall cease all payments to Executive
under this Agreement.
(c) The terms of this Section 7 shall survive the termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
8. Non-Interference
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(a) Executive acknowledges that the services to be provided give him
the opportunity to have special knowledge of the Company and its Confidential
Information and the capabilities of individuals employed by or affiliated with
the Company, and that interference in these relationships would cause
irreparable injury to the Company. In consideration of this Agreement,
Executive covenants and agrees that:
(i) During the Restricted Period (which shall not include any
period of violation of this Agreement by the Executive), Executive
will
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not, without the express written approval of the Board of Directors of
the Company, anywhere in the Market, directly or indirectly, in one or
a series of transactions, own, manage, operate, control, invest or
acquire an interest in, or otherwise engage or participate in, whether
as a proprietor, partner, stockholder, lender, director, officer,
employee, joint venturer, investor, lessor, supplier, customer, agent,
representative or other participant, in any Competitive Business
without regard to (A) whether the Competitive Business has its office,
manufacturing or other business facilities within or without the
Market, (B) whether any of the activities of Executive referred to
above occur or are performed within or without the Market or (C)
whether Executive resides, or reports to an office, within or without
the Market; provided, however, that (x) Executive may, anywhere in the
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Market, directly or indirectly, in one or a series of transactions,
own, invest or acquire an interest in up to five percent (5%) of the
capital stock of a corporation whose capital stock is traded publicly,
or that (y) Executive may accept employment with a successor company
to the Company.
(ii) During the Restricted Period (which shall not include any
period of violation of this Agreement by Executive), Executive will
not without the express prior written approval of the Board of
Directors of the Company (A) directly or indirectly, in one or a
series of transactions, recruit, solicit or otherwise induce or
influence any proprietor, partner, stockholder, lender, director,
officer, employee, sales agent, joint venturer, investor, lessor,
supplier, customer, agent, representative or any other person which
has a business relationship with the Company or had a business
relationship with the Company within the twenty-four (24) month period
preceding the date of the incident in question, to discontinue, reduce
or modify such employment, agency or business relationship with the
Company, or (B) employ or seek to employ or cause any Competitive
Business to employ or seek to employ any person or agent who is then
(or was at any time within six months prior to the date Executive or
the Competitive Business employs or seeks to employ such person)
employed or retained by the Company. Notwithstanding the foregoing,
nothing herein shall prevent Executive from providing a letter of
recommendation to an employee with respect to a future employment
opportunity.
(iii) The scope and term of this Section 8 would not preclude
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him from earning a living with an entity that is not a Competitive
Business.
(b) The terms of this Section 8 shall survive termination of this
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Agreement regardless of who terminates this Agreement, or the reasons therefor.
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9. Inventions
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(a) Each invention, improvement or discovery made or conceived by
Executive, either individually or with others, during the term of his employment
with the Company, which invention, improvement or discovery is related to any of
the lines of business or work of the Companies, any projected or potential
activities which the Companies have investigated or hereinafter investigates, or
which result from or are suggested by any service performed by Executive for the
Company, whether patentable or not, shall be promptly and fully disclosed by
Executive to the Company. Executive assigns each such invention, improvement or
discovery, and the patents thereof, or related thereto, to the Company.
Executive shall, during the term of her employment with the Company and
thereafter without charge to the Company, but at the request and expense of the
Company, assist the Company in obtaining or vesting in itself patents upon such
improvements and inventions. All such inventions, improvements or discoveries
shall at all times become and remain the exclusive property of the Company.
Executive represents that he does not claim ownership of any inventions,
improvements, formulae or discoveries which are excluded from this Agreement.
(b) In the event that Executive breaches her obligations in any
material respect under Sections 7, 8 or this Section 9, the Company, in addition
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to pursuing all available remedies under this Agreement, at law or otherwise,
and without limiting its right to pursue the same shall cease all payments to
Executive under this Agreement.
10. Definitions
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"Business" means (a) the design, manufacture, lease and operation of
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pressurized and unpressurized space modules, flight hardware and subsystems, and
those other businesses and activities that are described in the Company's Form
10-K for the fiscal year ended June 30, 1999, and Form 10-Q for the quarter
ending September 30, 1999, or (b) any similar, incidental or related business
conducted or pursued by, or engaged in, or proposed to be conducted or pursued
by or engaged in, by the Companies prior to the date hereof or at any time
during the Term of Employment.
"Cause" is defined in Section 3(d).
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"Companies" means the Company and any of its direct or indirect
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subsidiaries, now existing or hereafter existing.
"Company" is defined in the introduction.
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"Competitive Business" means any business which competes, directly or
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indirectly, with the Business in the Market.
"Confidential Information" means any trade secret, confidential study,
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data, calculations, software storage media or other compilation of information,
patent, patent application, copyright, trademark, trade name, service xxxx,
service name, "know-how", trade secrets, customer lists, details of client or
consultant contracts, pricing
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policies, sales techniques, confidential information relating to suppliers,
information relating to the special and particular needs of the Companies'
customers operational methods, marketing plans or strategies, products and
formulae, product development techniques or plans, business acquisition plans or
any portion or phase of any scientific or technical information, ideas,
discoveries, designs, computer programs (including source of object codes),
processes, procedures, research or technical data, improvements or other
proprietary or intellectual property of the Companies, whether or not in written
or tangible form, and whether or not registered, and including all files,
records, manuals, books, catalogues, memoranda, notes, summaries, plans,
reports, records, documents and other evidence thereof. The term "Confidential
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Information" does not include, and there shall be no obligation hereunder with
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respect to, information that is or becomes generally available to the public
other than as a result of a disclosure by Executive not permissible hereunder.
"Executive" means the individual identified in the first paragraph of
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this Agreement, or his or her estate, if deceased.
"Market" means any county in the United States of America and each
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similar jurisdiction in any other country in which the Business was conducted or
pursued by, engaged in by the Companies prior to the date hereof or is conducted
or engaged in or pursued, or is proposed to be conducted or engaged in or
pursued, by the Companies at any time during the Term of Employment.
"Material Breach" is defined in Section 3(d).
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"Prior Employment Agreement" is defined in Section 12(a).
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"Restricted Period" means the period commencing on the date of this
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Agreement and continuing through the sixth month anniversary of the termination
of the Term of Employment.
"Subsidiary" means any corporation, limited liability company, joint
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venture, limited and general partnership, joint stock company, association or
any other type of business entity of which the Company owns, directly or
indirectly through one or more intermediaries, more than fifty percent (50%) of
the voting securities at the time of determination.
"Term of Employment" is defined in Section 3(a).
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11. Notice
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Any notice, request, demand or other communication required or
permitted to be given under this Agreement shall be given in writing and if
delivered personally, or sent by certified or registered mail, return receipt
requested, as follows (or to such other addressee or address as shall be set
forth in a notice given in the same manner):
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If to Executive: Xxxxx X. Xxxxxxx
000 XxXxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
If to Company: SPACEHAB, Incorporated
000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Any such notices shall be deemed to be given on the date personally delivered or
such return receipt is issued.
12. Previous Agreements; Executive's Representation
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(a) Attached hereto as Annex A are all previous employment or
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severance agreements, if any, by and between Executive and the Company
(collectively, the "Prior Employment Agreements"). Executive and the Company
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hereby cancel, void and render without force and effect all Prior Employment
Agreements, and the Executive releases and discharges the Company from any
further obligations or liabilities thereunder. Notwithstanding the foregoing,
the terms and provisions in any Prior Employment Agreement relating to any
grants of stock options or other derivative securities for the purchase of the
Company's common stock, no par value per share, shall remain in full force and
effect and shall not be amended in any manner as a result of the execution of
this Agreement.
(b) Executive hereby warrants and represents to the Company that
Executive has carefully reviewed this Agreement and has consulted with such
advisors as Executive considers appropriate in connection with this Agreement,
is not subject to any covenants, agreements or restrictions, including without
limitation any covenants, agreements or restrictions arising out of Executive's
prior employment, which would be breached or violated by Executive's execution
of this Agreement or by Executive's performance of her duties hereunder.
13. Other Matters
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Executive agrees and acknowledges that the obligations owed to
Executive under this Agreement are solely the obligations of the Company, and
that none of the Companies' stockholders, directors, officers, affiliates,
representatives, agents or lenders will have any obligations or liabilities in
respect of this Agreement and the subject matter hereof.
14. Validity
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If, for any reason, any provision hereof shall be determined to be
invalid or unenforceable, the validity and effect of the other provisions hereof
shall not be affected thereby.
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15. Severability
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Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any
court determines that any provision of Section 8 or any other provision hereof
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is unenforceable because of the power to reduce the scope or duration of such
provision, as the case may be and, in its reduced form, such provision shall
then be enforceable.
16. Waiver of Breach; Specific Performance
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The waiver by the Company or Executive of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its rights under
this breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of
Sections 7, 8 and 9 of this Agreement and that any party (and third party
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beneficiaries) may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions in order to enforce or prevent any violations of the provisions of
this Agreement. In the event either party takes legal action to enforce any of
the terms or provisions of this Agreement against the other party, the party
against whom judgment is rendered in such action shall pay the prevailing
party's costs and expenses, including but not limited to, attorneys' fees,
incurred in such action.
17. Assignment; Third Parties
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Neither Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of her or
its respective rights or obligations hereunder, without the prior written
consent of the other. The parties agree and acknowledge that each of the
Companies and the stockholders and investors therein are intended to be third
party beneficiaries of, and have rights and interests in respect of, Executive's
agreements set forth in Sections 7, 8 and 9.
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18. Amendment; Entire Agreement
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This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this
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Agreement, and supersedes and replaces all prior Agreements, understandings and
commitments with respect to such subject matter.
19. Litigation
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THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE DISTRICT OF COLUMBIA, EXCEPT THAT NO DOCTRINE
OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF THE DISTRICT
OF COLUMBIA, AND NO DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED
BY THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT,
MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF ANY
FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION HEREON. SUBJECT TO SECTION
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20, EXECUTIVE AND THE COMPANY AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR
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ARISING OUT OF THIS AGREEMENT MAY BE COMMENCED IN THE COURTS OF THE WASHINGTON,
D.C. OR THE UNITED STATES DISTRICT COURTS IN DISTRICT OF COLUMBIA. EXECUTIVE
AND THE COMPANY CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN
SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. THE
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CHOICE OF FORUM SET FORTH IN THIS SECTION 19 SHALL NOT BE DEEMED TO PRECLUDE THE
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ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION
UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER JURISDICTION.
20. Arbitration
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EXECUTIVE AND THE COMPANY AGREE THAT ANY DISPUTE BETWEEN OR AMONG THE
PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, ITS
NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR
DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, SHALL BE SUBMITTED TO,
AND RESOLVED EXCLUSIVELY PURSUANT TO ARBITRATION IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. SUCH
ARBITRATION SHALL TAKE PLACE IN WASHINGTON, D.C., AND SHALL BE SUBJECT TO THE
SUBSTANTIVE LAW OF THE DISTRICT OF COLUMBIA. DECISIONS PURSUANT TO SUCH
ARBITRATION SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES. UPON THE
CONCLUSION OF ARBITRATION, EXECUTIVE OR THE COMPANY MAY APPLY TO ANY COURT OF
THE TYPE DESCRIBED IN SECTION 19 TO ENFORCE THE DECISION PURSUANT TO SUCH
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ARBITRATION. IN CONNECTION WITH THE FOREGOING, THE PARTIES HEREBY WAIVE ANY
RIGHTS TO A JURY TRIAL TO RESOLVE ANY DISPUTES OR CLAIMS RELATING TO THIS
AGREEMENT OR ITS SUBJECT MATTER.
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21. Further Action
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Executive and the Company agree to perform any further acts and to
execute and deliver any documents which may be reasonable to carry out the
provisions hereof.
22. Counterparts
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first written above.
EXECUTIVE:
_____________________________________________
Xxxxx X. Xxxxxxx
SPACEHAB, INCORPORATED
_____________________________________________
Xxxxx X. Xxxxx, President
