Exhibit 10.1
SEPARATION AGREEMENT AND MUTUAL
RELEASE
This Separation Agreement and
Release (the “Agreement”) is made and entered into as
of January 19, 2007 (the “Effective Date”) by and
between SPACEHAB, Inc. (“SPACEHAB” or the
“Company”) and Michael E. Bain
(“Bain”).
RECITALS
Bain is the Chief Operating Officer
of the Company. Other than this Agreement, Bain and the
Company are parties to the following, and only the following,
agreements (collectively, the “Ancillary
Agreements”):
a.
Employment Agreement, dated as of
May 12, 2005 (the “Employment Agreement”), and attached
as Exhibit A; and
b.
Indemnification Agreement, dated as
of May 12, 2005 (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;
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 Bain 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 Bain’s status as an officer 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 Bain agree as follows:
1.
Termination of Employment Agreement. As of the
Effective Date, the Employment Agreement between Bain and the
Company listed in Agreement Recital a. is cancelled and terminated
and will be of no further force or effect except as provided for in
this Agreement. The Existing Indemnification Arrangements
shall remain binding and enforceable as between the parties in
accordance with their terms. Therefore, Bain agrees and
acknowledges that any rights he may have to any payments, benefits,
or other perquisites of any kind whatsoever under the Employment
Agreement (except as provided for as part of routine termination of
employment in accordance with company policy) including, without
limitation, compensation, salary, vacation and sick pay, and travel
and car allowances, if any, are extinguished by this Agreement and
Bain’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 Bain’s compliance
with each of the terms and conditions of this Agreement, the
Company will pay Bain the amount of One Hundred Thousand Dollars
($100,000.00) minus all lawful tax withholdings (the
“Payment”), payable in one lump sum within five days
after expiration of the seven-day Revocation Period described in
Agreement paragraph 17. Bain understands and agrees that the
Payment is in addition to anything of value to which Bain is
already entitled to receive.
3.
Resignation. Bain hereby irrevocably resigns all
positions as an officer and employee of the Company as of the
Effective Date
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, Bain is excluded from the
definition of “SPACEHAB Released Parties”.
5.
Mutual Release of Claims . Bain, on behalf of himself,
his heirs, executors, successors and assigns, irrevocably and
unconditionally releases, waives, and forever discharges SPACEHAB
and the SPACEHAB Released Parties, excluding Bain himself, 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 Bain has, had, or may have
against SPACEHAB or any of the SPACEHAB Released Parties, 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
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 Bain’s
employment or separation from employment with SPACEHAB.
2
SPACEHAB, on behalf of itself and
its employees, officers, agents, directors, affiliates and
subsidiaries, irrevocably and unconditionally releases, waives, and
forever discharges BAIN and his heirs, executors, successors and
assigns (the “Bain Released Parties”), 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 Bain has, had, or may have
against Bain or any of the Bain Released Parties, 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, or any other
statutory or common law claims.
6.
No Admission of Liability/Confidentiality of Release.
Bain 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 Bain or any other person, and SPACEHAB and the SPACEHAB
Released Parties specifically disclaim any liability to or wrongful
acts against Bain or any other person. Similarly, the Company
acknowledges and agrees that this Agreement shall not in any way be
construed as an admission by Bain of any unlawful or wrongful acts
against SPACEHAB, the SPACEHAB Released Parties or any other
person, and Bain specifically disclaims any liability to or
wrongful acts against SPACEHAB, the SPACEHAB Released Parties or
any other person. Bain 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,
Bain 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 Bain 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. Bain, however, agrees, as
required by Agreement paragraph 9, to provide SPACEHAB prompt
written notice before responding to any subpoena. Further,
Bain 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. Bain 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. Bain 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.
3
8.
Mutual Non-Disparagement.
(a) Bain agrees that he will not,
directly or indirectly, 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 concerning the same. Bain further agrees that he
will not disclose, directly or indirectly, communicate, or publish
any disparaging information concerning the terms of his employment
with the Company, any other circumstance that arose from his
employment with the Company or separation from employment, or any
action or event that occurred during his employment with the
Company, or cause others to disclose, communicate, or publish any
disparaging information concerning the same;
(b) The Company agrees that it
will not, in any wa
