Exhibit 10.2
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 E. Michael Chewning
(“Chewning”).
RECITALS
Chewning is a Senior Vice President
with the Company. Other than this Agreement, Chewning 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 Chewning 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 Chewning’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 Chewning agree as follows:
1.
Termination of Employment Agreement. As of the
Effective Date, the Employment Agreement between Chewning 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, Chewning 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, if any, are
extinguished by this Agreement and Chewning’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 Chewning’s
compliance with each of the terms and conditions of this Agreement,
the Company will pay Chewning the amount of Fifty Thousand Dollars
($50,000.00) 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 18. Additionally, the Company will
provide COBRA continuation health coverage (the “COBRA
Payment”) to Chewning in accordance with the provisions of
Paragraph 6 below. Chewning understands and agrees that the
Payment and COBRA Payment is in addition to anything of value to
which Chewning is already entitled to receive.
3.
Resignation. Chewning 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, Chewning is excluded from the
definition of “SPACEHAB Released Parties.”
5.
Global Release of Claims . Chewning, 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 Chewning
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
Chewning 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
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any other statutory or common law
claims related to Chewning’s employment or separation from
employment with SPACEHAB.
6.
COBRA Payments. SPACEHAB agrees to continue all
medical, dental, and other health benefits that were provided to
Chewning (and his eligible dependents) immediately before January
19, 2007, in accordance with the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (“COBRA”), and
the terms of SPACEHAB’s plans, as such may be amended from
time to time. In the event Chewning elects COBRA continuation
coverage for Chewning (and his eligible dependents) under the
medical and dental plans, SPACEHAB will pay the entire cost of the
premiums for such coverage until the earlier of (i) six (6) months
after the Effective Date or July 31, 2007, whichever is later; (ii)
the date that Chewning obtains employment with another entity under
which he is offered the same or better health insurance coverage
given to its employees; (iii) the date that Chewning breaches the
terms of this Agreement, including, without limitation, the
provisions of Agreement paragraphs 7, 9, 11, 12 and 15; or (iv) the
date Chewning (or his eligible dependents) cease to be eligible for
COBRA continuation coverage under a plan for any reason other than
failure to pay premiums. Chewning understands and agrees that
he will be solely responsible for the payment of any COBRA premiums
for continuation coverage for all periods after the date
SPACEHAB’s obligation in the immediately preceding sentence
terminates. Any benefits provided under this Agreement paragraph 6
to Chewning or his dependents shall be modified to the extent
benefits under any applicable plan are modified for active
employees of SPACEHAB, and SPACEHAB reserves the right to amend,
terminate or modify such plans at any time.
7.
No Admission of Liability/Confidentiality of Release.
Chewning 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 Chewning or any other person, and SPACEHAB and the SPACEHAB
Released Parties specifically disclaim any liability to or wrongful
acts against Chewning or any other person. Similarly, the
Company acknowledges and agrees that this Agreement shall not in
any way be construed as an admission by Chewning of any unlawful or
wrongful acts against SPACEHAB, the SPACEHAB Released Parties or
any other person, and Chewning specifically disclaims any liability
to or wrongful acts against SPACEHAB, the SPACEHAB Released Parties
or any other person. Chewning 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, Chewning 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 Chewning 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. Chewning,
however, agrees, as required by Agreement paragraph 10, to provide
SPACEHAB prompt written notice before responding to any
subpoena. Further, Chewning 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
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law, including, without limitation,
the provisions, rules or regulations of the Securities Exchange Act
of 1934 ,as amended.
8.
No Re-employment. Chewning 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. Chewning
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.
9.
Non-Disparagement. Chewning agrees for a period of
two (2) years after the Effective Date not to, directly or
indirectly, disclose, communicate, or publish any disparaging,
negative, harmful, or disapproving information, written
communications, oral communications, electronic or magnetic
communications, writings, oral or written statements, comments,
opinions, facts, or remarks, of any kind or nature whatsoever
(collectively, “Disparaging Information”), concerning
or related to any of the SPACEHAB Released Parties or
SPACEHAB. Chewning understands and acknowledges that this
non-disparagement clause prevents him from disclosing,
communicating, or publishing, directly or indirectly, any
Disparaging Information concerning or related to the SPACEHAB
Released Parties or SPACEHAB including, without limitation,
information regarding the SPACEHAB Released Parties or
SPACEHAB’s businesses, customers or clients, proprietary or
technical information, documents, operations, inventions, trade
secrets, product ideas, technical information, know-how, processes,
plans (including, without limitation, marketing plans and
strategies), specifications, designs, methods of
operatio
