EMPLOYMENT AND NON-INTERFERENCE AGREEMENT
with W. T. Short
This Employment and Non-Interference Agreement (this "Agreement"), is
dated as of July 1, 1998, by and between W.T. Short (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 an executive of the Company in the position of
Vice-President, Xxxxxxx Engineering, and as an executive of XXXXXXX ENGINEERING
CORPORATION, a wholly-owned subsidiary of the Company, in the position of
President of XXXXXXX ENGINEERING CORPORATION. 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 all
of his 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 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
$171,200 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.
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.
6. Benefits
During the Term of Employment, Executive shall be entitled to any
fringe or employee benefits made available to similarly situated executives, 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 XXXXXXX 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 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.
"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: W.T. Short
c/x Xxxxxxx Engineering Corporation
000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
with a copy to: Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxx X. Xxxxxx
If to Company: Xxxxxxx Engineering Corporation
SPACEHAB, Incorporated
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to: Xxxxx X. Xxxxxx XX
Xxxxx Xxxxxxxxxx, LLP
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
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/ W.T. Short
W.T. Short
SPACEHAB, INCORPORATED
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
