EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
This Employment and Non-Interference Agreement (this "Agreement"), is
dated as of July 1, 1998, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Executive") and
SPACEHAB, INCORPORATED, a Washington corporation (the "Company").
WITNESSETH:
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
Subject to Section 3, the Company hereby employs Executive, and
Executive agrees to accept such employment, during the Term of Employment (as
defined in Section 3(a)), as Chairman of the Board of Directors of ▇▇▇▇▇▇▇
ENGINEERING CORPORATION, a wholly-owned subsidiary of the Company. Executive
will also undertake such duties and responsibilities as may be reasonably
assigned to Executive from time to time by the President of the Company, by the
Board of Directors of the Company, or by such other appropriately authorized or
designated executive officer of the Company.
2. Extent of Employment
(a) During the Term of Employment, Executive shall perform his
obligations hereunder faithfully and to the best of his ability under the
direction of the President of the Company, by the Company's Board of Directors,
or by 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 up
to fifteen (15) hours per week to the performance of his 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
(a) The "Term of Employment" shall commence on the date hereof
and shall continue for a term ending July 1, 1999 (the "Initial Term"), subject
to automatic annual renewal for one-year terms thereafter (the "Additional
Term"), unless either the Company or Executive notifies the other party of its
intent not to renew within ninety (90) days prior to the end of the Initial Term
or the 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
shall end on the date of such earlier termination.
(b) Subject to the payments contemplated by Section 3(d), the
Term of 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 his
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 3(d));
(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.
(c) Subject to the payments contemplated by Section 3(d), the
Term of 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 his
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:
"Cause" shall mean any of the following: (i) Executive's conviction 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
(ii) Executive's conviction of fraud or embezzlement.
"Material Breach" shall mean any of the following: (i) Executive's
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 physical or mental disability); (iii) Executive's habitual
drunkenness or substance abuse which materially interferes with Executive's
ability to discharge his duties, responsibilities or obligations prescribed by
Sections 1 and 2; (iv) Executive's willful, continual and material breach of any
non-competition or confidentiality agreement with the Company, including without
limitation, those set forth in Sections 7 and 8 of this Agreement; and (v)
Executive's gross neglect of his 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 other reason or no reason] or 3(c)(i) [death], 3(c)(ii)
[disability) or 3(c)(iii) [material reduction], the Company will: (A)
pay to Executive (or his estate or representative) the full amounts to
which the Executive would be entitled to under Section 4(a) for the
period 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
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 payments required by this Section 3(d)(i), such payments will
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 performance], or 3(c)(iv) [voluntary], the Company will
not be 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),
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 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, 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 obligated to make payments under Section 3(d)(i).
(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 waives any and all claims against the Company and its respective
officers, directors, employees, agents, or representatives, stockholders and
affiliates relating to his employment during the term hereof and this Agreement.
(g) Termination of the Term of Employment will not
terminate Sections 3(d), 3(f)and 7 through 22.
4. Compensation
During the Term of Employment, the Company shall pay to
Executive:
(a) As base compensation for his services hereunder, in
semi-monthly installments, a base salary at a rate of not less than $36,000 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 bonus, if any, based on Executive's performance
as determined and approved by the Compensation Committee of the Board of
Directors. Although bonuses are entirely discretionary, it is agreed that
Executive shall be treated on the same basis as executives of the Company who
are employed at the level of Director for purposes of establishing the range of
bonuses and benefits that may be awarded to Executive.
5. Reimbursement of Expenses
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. Executive shall also be provided with an
office at ▇▇▇▇▇▇▇ Engineering Corporation's headquarters location and shall be
provided with the services of a secretary, who shall, provided she continues to
be employable under the policies of ▇▇▇▇▇▇▇ Engineering Corporation, be
Executive's current secretary.
6. Benefits
During the Term of Employment, Executive shall be entitled to any
fringe or employee benefits made available to executives of the Company who are
employed at the level of Director, in each case, in accordance with guidelines
or established from time to time, by the Board of Directors.
7. Confidential Information
(a) Executive acknowledges that his employment hereunder gives
him access to Confidential Information relating to the Business of the Companies
and their customers which must remain confidential. Executive acknowledges that
this information is valuable, special, and a unique asset of the Business of the
Companies, and that it has been and will be developed by the Companies at
considerable effort and expense, and if it were to be known and used by others
engaged in a Competitive Business, it would be harmful and detrimental to the
interests of the Companies. 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 Executive or not; provided, however, that
any Confidential Information may be 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
use his best efforts to prevent the removal of any Confidential Information from
the premises of the Companies, except as required in his normal course of
employment by the Company. Executive shall use his 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,
that in the event disclosure is required by applicable law, Executive shall
provide the Company with prompt notice of such requirement, prior to making any
disclosure, so that the Companies 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 his obligations in
any material respect under this Section 7, the Company, in addition 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.
(c) The terms of this Section 7 shall survive the termination
of this Agreement regardless of who terminates this Agreement, or the reasons
therefor.
8. Non-Interference and Non-Competition
(a) Executive acknowledges that the services to be provided
give him the opportunity to have special knowledge of the Companies and their
Confidential Information and the capabilities of individuals employed by or
affiliated with the Companies, and that interference in these relationships
would cause irreparable injury to the Companies. 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 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 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 any of the Companies or had a business
relationship with the Companies 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 Companies, 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 Companies. 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 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 Agreement regardless of who terminates this Agreement, or the reasons
therefor.
9. Inventions
(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 his 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 discovery 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 his obligations in
any material respect under Sections 7, 8 or this Section 9, the Company, in
addition 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
"Business" means (a) the design, manufacture, lease and operation of
pressurized habitable space modules, unpressurized space logistics and science
hardware, including unpressurized pallets, and those other businesses and
activities that are described in the Company's Form 10-K for the fiscal year
ended June 30, 1998, or (b) the provision of services relating to communication
satellite launch processing and integration, as performed by ASTROTECH SPACE
OPERATIONS, INC., a wholly-owned subsidiary of the Company, or (c) the provision
of engineering services to the National Aeronautics and Space Administration, as
performed by ▇▇▇▇▇▇▇ ENGINEERING CORPORATION, a wholly-owned subsidiary of the
Company, or (d) 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).
"Companies" means the Company, any of its direct or indirect
subsidiaries and affiliates and any other entity identified by the Board of
Directors in its sole discretion, whether now existing or hereafter existing.
"Company" is defined in the introduction.
"Competitive Business" means any business which competes, directly or
indirectly, with the Business in the Market.
"Confidential Information" means any trade secret, confidential study,
data, calculations, software storage media or other compilation of information,
patent, patent application, copyright, trademark, trade name, service ▇▇▇▇,
service name, "know-how", trade secrets, customer lists, details of client or
consultant contracts, pricing 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 Information" does not include, and there shall be no
obligation hereunder with respect to, information that is or becomes generally
available to the public other than as a result of a disclosure by Executive.
"Executive" means the individual identified in the first paragraph of
this Agreement, or his or her estate, if deceased.
"Market" means any county in the United States of America and each
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).
"Non-Interference Period" means the period commencing on the date of
this Agreement and continuing through the twelfth month anniversary of the
termination of the Term of Employment.
"Prior Employment Agreement" is defined in Section 12(a).
"Restricted Period" means the period commencing on the date of this
Agreement and continuing through the sixth month anniversary of the termination
of the Term of Employment.
"Subsidiary" means any corporation, limited liability company, joint
venture, limited and general partnership, joint stock company, association or
any other type of business entity over 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).
11. Notice
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):
If to Executive: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ Engineering Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: McDade, Fogler, ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Company: ▇▇▇▇▇▇▇ Engineering Corporation
SPACEHAB, Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LLP
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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
(a) Attached hereto as Annex A are all previous employment or
severance agreements by and between Executive and the Company (collectively, the
"Prior Employment Agreements"). Executive and the Company 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.
(b) Executive hereby warrants and presents 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 his duties hereunder.
13. Other Matters
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
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.
15. Severability
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 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
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
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 judgement 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
Neither Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his 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.
18. Amendment; Entire Agreement
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 Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
19. Litigation
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF VIRGINIA, EXCEPT THAT NO DOCTRINE OF
CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF VIRGINIA, 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 20, EXECUTIVE AND THE
COMPANY AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS
AGREEMENT MAY BE COMMENCED IN THE COURTS OF THE STATE OF VIRGINIA OR THE UNITED
STATES DISTRICT COURTS IN ARLINGTON, VIRGINIA. 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 CHOICE OF FORUM SET FORTH IN
TIES SECTION 19 SHALL NOT BE DEEMED TO PRECLUDE THE 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
EXCEPT AS DESCRIBED IN SECTION 16, 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 ARLINGTON, VIRGINIA, AND SHALL BE SUBJECT TO THE SUBSTANTIVE
LAW OF THE STATE OF VIRGINIA. 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 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.
21. Further Action
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
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.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first written above.
EXECUTIVE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SPACEHAB, INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
