Exhibit 10.1
SEPARATION AGREEMENT AND MUTUAL
RELEASE
This Separation Agreement and
Release (the “Agreement”) is made and entered into as
of December 15, 2006 (the “Effective Date”) by and
between SPACEHAB, Inc. (“SPACEHAB” or the
“Company”) and Michael E. Kearney
(“Kearney”).
RECITALS
Kearney is the President and Chief
Executive Officer of the Company. Other than this Agreement,
Kearney and the Company are parties to the following, and only the
following, agreements (collectively, the “Ancillary
Agreements”):
a.
Employment Agreement, dated as of
September 30, 2004 (the “Employment Agreement”), and
attached as Exhibit A; and
b.
Indemnification Agreement, dated as
of September 23, 2004 (the “Indemnification
Agreement”), which the parties agree to be a valid, binding
and enforceable agreement between them and the provisions of which
are not waived, modified or otherwise impaired by this Agreement in
any respect, and attached as Exhibit B;
Kearney desires to retire from his
position with the Company. Recognizing the valuable years of
service Kearney has provided to the Company, SPACEHAB agrees to
accept Kearney’s resignation effective January 1, 2007 and,
accordingly, releases Kearney from certain obligations under his
Employment Agreement to allow him to retire honorably from the
Company before the expiration of the Agreement’s terms.
In this regard, the parties mutually agree that Kearney is retiring
from the Company “with honors.”
Under each of the Indemnification
Agreement, the Amended and Restated Articles of Incorporation of
the Company (the “Articles Indemnification”) and the
Amended and Restated Bylaws of the Company (the “Bylaws
Indemnification”) (collectively, the “Existing
Indemnification Arrangements”) the Company is obligated,
under certain circumstances, to indemnify Kearney under the terms
and conditions therein stated. Notwithstanding any provision
of this Agreement to the contrary, the Existing Indemnification
Arrangements shall remain in effect and be enforceable in
accordance with their respective terms and conditions, except as
expressly modified or supplemented by this Agreement.
On the terms hereinafter set forth,
the parties agree that Kearney’s status as an officer,
director and employee of the Company is terminated as of the
Effective Date.
AGREEMENT TERMS
Therefore, in consideration of the
promises and mutual agreements set forth in this Agreement, the
receipt and sufficiency of which is hereby acknowledged by all
parties, the Company and Kearney agree as follows:
1.
Termination of Employment Agreement. As of the
Effective Date, the Employment Agreement between Kearney and the
Company listed in Agreement Recital a. is cancelled and terminated
and will be of no further force or effect. The Existing
Indemnification
Arrangements shall remain binding
and enforceable as between the parties in accordance with their
terms. Therefore, Kearney agrees and acknowledges that any
rights he may have to any payments, benefits, or other perquisites
of any kind whatsoever under the Employment Agreement including,
without limitation, compensation, salary, vacation and sick pay,
and travel and car allowances, are extinguished by this Agreement
and Kearney’s right to any claim or cause of action
whatsoever to reimbursement, payments, benefits, or other
perquisites under the Employment Agreement are released and forever
waived under Agreement paragraph 5.
2.
Severance . Contingent upon Kearney’s compliance
with each of the terms and conditions of this Agreement, the
Company will pay Kearney the amount of six (6) months of his
current base salary, $157,500.07, and the amount of his accrued
vacation through December 31, 2006, $23,085.51, minus all
lawful tax withholdings (the “Payment”), payable in one
lump sum on December 31, 2006 (except as otherwise provided in
connection with the revocation provisions of this Agreement).
Kearney understands and agrees that the Payment is in addition to
anything of value to which Kearney is already entitled to
receive.
3.
Retirement. Kearney hereby irrevocably agrees to
retire and voluntarily resign from all positions as a director,
officer, and employee of the Company effective January 1,
2007.
4.
SPACEHAB Released Parties . The “SPACEHAB
Released Parties” are defined as SPACEHAB, Inc., each of
SPACEHAB subsidiaries and each of SPACEHAB and its subsidiaries
predecessors, successors, parents, joint ventures, holding
companies, subsidiaries, divisions, affiliates, assigns,
partnerships, agents, directors, officers, employees, consultants,
committees, employee benefit committees, fiduciaries,
representatives, attorneys, and all persons and entities acting by,
through, under or in concert or in any such capacity with any of
them. Under this Agreement, Kearney is excluded from the
definition of “SPACEHAB Released Parties”.
5.
Mutual Release of Claims . Kearney, on behalf of
himself, his heirs, executors, successors and assigns, and
SPACEHAB, on behalf of its employees, officers, agents,
directors, affiliates and subsidiaries, hereby agree to
mutually release each other from any and all claims, demands,
actions, causes of action, costs, fees, attorneys’ fees, and
all liability whatsoever, whether known or unknown, fixed or
contingent, which the parties have, had, or may have against each
other from the beginning of time and up to and including the date
of execution of this Agreement other than as may exist, or
hereafter arise, under this Agreement, the Ancillary Agreements, or
the Existing Indemnification Arrangements, except as expressly
modified or supplemented by this Agreement.. This Agreement
includes, without limitation, claims at law or equity or sounding
in contract, express or implied, or in tort, claims arising under
any federal, state, or local laws of any jurisdiction that prohibit
age, sex, race, national origin, color, disability, religion,
veteran, military status, sexual orientation, or any other form of
discrimination, harassment, or retaliation (including, without
limitation, the Age Discrimination in Employment Act, the Older
Workers Benefit Protection Act, the Americans with Disabilities
Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act
of 1991, 42 U.S.C. § 1981, the Rehabilitation Act, the Family
and Medical Leave Act, the Sarbanes-Oxley Act of 2002, the Employee
Polygraph Protection Act, the Financial Institutions Reform,
Recovery and Enforcement Act (or any other employment-related
banking statute or regulation), the Uniformed Services Employment
and Reemployment Rights Act of 1994, the Texas Commission on
Human
2
Rights Act, any federal, state,
local or municipal whistleblower protection or anti-retaliation
statute or ordinance, or any other federal, state, local, or
municipal laws of any jurisdiction), claims arising under the
Employee Retirement Income Security Act, or any other statutory or
common law claims related to Kearney’s employment or
separation from employment with SPACEHAB.
6.
No Admission of Liability/Confidentiality of Release.
Kearney understands and agrees that this Agreement shall not in any
way be construed as an admission by SPACEHAB or the SPACEHAB
Released Parties of any unlawful or wrongful acts whatsoever
against Kearney or any other person, and SPACEHAB and the SPACEHAB
Released Parties specifically disclaim any liability to or wrongful
acts against Kearney or any other person. Similarly, the
Company acknowledges and agrees that this Agreement shall not in
any way be construed as an admission by Kearney of any unlawful or
wrongful acts against SPACEHAB, the SPACEHAB Released Parties or
any other person, and Kearney specifically disclaims any liability
to or wrongful acts against SPACEHAB, the SPACEHAB Released Parties
or any other person. Kearney agrees to keep this Agreement,
its terms, and the amount of the Payment in this Agreement
completely confidential unless publicly-disclosed by the Company;
however, Kearney may disclose the terms of this Agreement and the
amount of the Payment to his spouse, attorneys, financial advisors,
or as otherwise required by law. Accordingly, nothing in this
Agreement is intended to preclude Kearney or SPACEHAB from
disclosing information in response to a subpoena issued by a court
of law or upon the request of a government agency having
jurisdiction or power to compel the disclosure. Kearney,
however, agrees, as required by Agreement paragraph 10, to provide
SPACEHAB prompt written notice before responding to any
subpoena. Further, Kearney acknowledges and agrees that
nothing in this Agreement prevents SPACEHAB from disclosing the
terms of this Agreement and filing a copy of this Agreement (i) in
response to a subpoena issued by a court of law or a government
agency having jurisdiction or power to compel the disclosure, (ii)
in response to a request by a governmental law enforcement agency
or federal or state agency having jurisdiction over the acts or
activities of SPACEHAB or any of its subsidiaries, or (iii) as
required by the applicable federal or state law, including, without
limitation, the provisions, rules or regulations of the Securities
Exchange Act of 1934 ,as amended.
7.
No Re-employment. Kearney agrees that he relinquishes
any right to re-employment with the Company or its subsidiaries
after the Effective Date. He further agrees that he will not
seek, apply for, accept, or otherwise pursue employment with the
Company or any of its subsidiaries. Kearney acknowledges that
if he re-applies for or seeks employment with the Company or its
subsidiaries, the Company’s or its subsidiaries’
refusal to hire him based on this provision will provide a complete
defense to any claims arising from his attempt to apply for
employment.
8.
Mutual Non-Disparagement.
(a) Kearney agrees that he will not,
directly or indirectly, intentionally disclose, communicate, or
publish any disparaging information concerning the Company, its
officers and directors, operations, products, services, employees,
technology, proprietary or technical information, or software
whatsoever, or cause others to disclose, communicate, or publish
any disparaging information conce
