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EXHIBIT 10.56
EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
This Employment and Non-Interference Agreement (this
"Agreement"), is dated as of April 1, 1997 (the "Effective Date"), by and
between Xx. Xxxxxxx X. Xxxxxxxx (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 Chief Executive Officer of the Company and to
undertake such duties and responsibilities as may be reasonably assigned to
Executive from time to time by the Chairman, Board of Directors of the Company,
or such other appropriately authorized or designated executive officer of the
Company, provided however, that nothing herein shall require Executive to
relocate his principal residence from the Long Island, New York area.
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 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 such
business time, energy and skill as may be reasonably necessary for the
performance of his duties, responsibilities and obligations under this Agreement
(except for vacation periods
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and reasonable periods of illness or other incapacity), consistent with past
practices and norms with respect to similar positions, provided however, that
the Company acknowledges that Employee is a General Partner in several venture
capital funds and is a director, consultant and/or advisor to certain companies
and associations. The Company specifically agrees that such current and future
activities of the same general type and scope are permitted under the terms of
this Agreement and are not in derogation of Employee's duties and obligations
under this Agreement.
(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 Effective Date and
shall continue for a term ending on March 31, 2000 (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. 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
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(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.
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(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
noncompetition or confidentiality agreement with the Company, including without
limitation, those set forth in Sections 8 and 9 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 eighteenth month anniversary
of termination; and (B) pay to Executive (or his estate or
representative) the benefits described in Section 6 through the
eighteenth 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 8 and 9. 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.
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(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 not be under 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 not be mitigated or reduced by Executive's
compensation under such alternative employment.
(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 8 through 22.
4. Compensation
During the Term of Employment, the Company shall pay to Executive:
(a) As base compensation for his services hereunder, in bi-monthly
installments, a base salary at a rate in the first year of this Agreement of
$275,000 per annum, in the second year of the Agreement of $300,000 per annum
and in the third year of the Agreement of $325,000. 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.
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
travel between his home and the Company's headquarters and to any of its other
offices, 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.
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6. Benefits
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. Stock Options
As a condition of entering into this Agreement, outstanding stock
options held by Executive will be treated as follows:
1. On January 20, 1997, the 120,000 options granted to
Executive in October 1995 were cancelled and an additional
60,000 options were issued at an exercise price of $5.75.
These options were vested immediately. The Company also
committed that an additional 60,000 options will be granted
to Executive at the Compensation Committee meeting to be
held in August 1997 when annual grants of options to
employees are to be considered. The exercise price for
these options will be at fair market value at the time of
grant and they will be immediately vested.
2. With reference to the 331,000 options granted in April and
August 1996, said options shall remain outstanding and an
additional 231,700 options shall be granted to Executive on
April 25, 1997 with an exercise price equal to the closing
market price on that date. On that date said options shall
be fully vested.
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8. Confidential Information
(a) Executive acknowledges that his employment hereunder gives him
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 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 11), 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 11). 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 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 his obligations in any
material respect under this Section 8, 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 8 shall survive the termination of this
Agreement regardless of who terminates this Agreement, or the reasons therefor.
9. 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
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 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.
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(iii) The scope and term of this Section 9 would not preclude him
from earning a living with an entity that is not a Competitive
Business.
(b) The terms of this Section 9 shall survive termination of this
Agreement regardless of who terminates this Agreement, or the reasons therefor.
10. 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 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 his obligations in any
material respect under Sections 8, 9 or this Section 10, 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.
11. Definitions
"Business" means (a) the design, manufacture, lease and operation of
pressurized habitable space capsules and those other businesses and activities
that are described in the Company's Form 10-K for the fiscal year ended June 30,
1996, 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).
"Companies" means the Company and any of its direct or indirect
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
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 xxxx,
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 not
permissible hereunder.
"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 13(a).
"Restricted 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.
"Subsidiary" means any corporation, limited liability company, joint
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.
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"Term of Employment" is defined in Section 3(a).
12. 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: Xx. Xxxxxxx X. Xxxxxxxx
0 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
If to Company: SPACEHAB, Incorporated
0000 Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Xxxxx X. Xxxxxx XX
Xxxxx Xxxxxxxxxx
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Any such notices shall be deemed to be given on the date personally delivered or
such return receipt is issued.
13. Previous Agreements; Executive's Representation
(a) Attached hereto as Annex A are all previous employment or
severance agreements, if any, 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. 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
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breached or violated by Executive's execution of this Agreement or by
Executive's performance of his duties hereunder.
14. 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.
15. 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.
16. 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 9 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.
17. 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 8, 9 and 10 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.
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18. 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 8, 9 and 10.
19. 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.
20. Litigation
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH 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 21,
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 COMMONWEALTH
OF VIRGINIA OR THE UNITED STATES DISTRICT COURTS IN THE NORTHERN DISTRICT OF
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 THIS SECTION 20 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.
21. Arbitration
EXECUTIVE AND THE COMPANY AGREE THAT ANY DISPUTE BETWEEN OR AMONG THE
PARTIES TO THIS AGREEMENT RELATING TO OR
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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 20 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.
22. 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.
23. 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.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first written above.
EXECUTIVE:
/s/ Xx. Xxxxxxx X. Xxxxxxxx
------------------------------------
Xx. Xxxxxxx X. Xxxxxxxx
SPACEHAB, INCORPORATED
By: /s/ Xxxxxxx X. Xxx
---------------------------------
Xxxxxxx X. Xxx
President
15
16
ANNEX A
None.
16
