EXHIBIT H
RELEASE AND WAVER OF CLAIMS
THIS IS A RELEASE AND WAIVER OF CLAIMS (hereinafter referred to as
"Release"), by and between TriStar Aerospace, Inc., its parents, subsidiaries
and affiliates (hereinafter referred to as the "Company") and Xxxx X. Xxxx, Xx.
(hereinafter referred to as "Employee").
IN CONSIDERATION of the covenants undertaken and the releases contained in
this Release, the Employee and Company agree as follows:
1. (a) Company acknowledges and incorporates herein by reference, intending
to be legally bound; its commitments as stated in the certain letter, dated May
17, 1999 (the "Letter Agreement") from Xxxxxxx Xxxxxxxxxx to the Employee.
(b) Employee acknowledges and agrees that the consideration described in
the Letter Agreement above is in excess of any obligations the Company would
have to him absent execution of this Release.
2. In exchange for the consideration to the Employee described in the
Letter Agreement, Employee hereby, on behalf of himself, his descendants,
ancestors, dependents, heirs, executors, administrators, successors and assigns,
covenants not to xxx, and fully and forever releases and discharges the Company,
and its parent companies, subsidiaries, affiliates, divisions, successors and
assigns, together with the past and present trustees, directors, officers,
agents, attorneys, insurers, employees, stockholders and representatives of the
Company, from any and all claims, wages, demands, rights, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations, debts,
costs, expenses, attorneys' fees, damages, judgments, orders or liabilities of
whatsoever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, which the Employee now owns or holds or has
at any time herefore or hereafter owned or held as against the Company, arising
out of or in any way connected with:
(a) the Employee's employment relationship with the Company;
(b) the Employee's termination from the Company;
(c) the letter agreement dated May 15, 1997 between Employee and the
Company; or
(d) any other transactions, occurrences, acts or omissions or any loss,
damage or injury whatsoever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of the Company or its past
or present subsidiaries committed or omitted prior to the date of this Release
or at any time during the Employee's employment with the Company, including, but
not limited to:
(i) claims under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Older Workers' Benefit Protection Act, the
Texas Commission on Human Rights Act, the Americans with Disabilities Act, the
Family and Medical Leave Act, the Texas Labor Code,
(ii) any claims for breach of contract, tort, or personal injury of any
sort,
(iii) any claims for severance pay, bonus, salary, sick leave, holiday
pay, personal time, life insurance, health or medical insurance or any other
fringe benefit, worker's compensation or disability, except as specified in the
May 17, 1999 Letter.
(iv) any claims under any other federal or state statute or
regulation.
3. The Employee warrants and agrees that he is responsible for any federal,
state or local taxes which may be owed by him by virtue of the receipt of any
portion of the consideration herein provided.
4. By accepting the benefits, payments and other items described in
Paragraph 1 above, the Employee agrees:
(a) not to xxx the Company or the related persons and entities described in
Paragraph 2 above other than to enforce the rights and benefits provided herein;
(b) that all documents, records, techniques, business secrets and other
information which have come into his possession from time to time during his
employment by the Company ("Confidential Information and Business Secrets")
shall be confidential and proprietary to the Company, and he will keep
confidential and not divulge to any other party any of the Company's
Confidential Information and Business Secrets, including, but not limited to,
Confidential Information and Business Secrets relating to such matters as the
Company's finances (including financial results, budgets, forecast and long-
range plans), operations, materials, processes, plans, designs, models, new
products, apparatus, equipment or formulas used in the Company's operations, and
the names of the Company's customers and suppliers;
(c) that all of the Company's Confidential Information and Business Secrets
are the sole and exclusive property of the Company;
(d) that he will return to the Company all Company owned property in his
possession or under his control;
(e) that during the one-year period following the termination of the
Employee's employment with the Company, he will not, directly or indirectly, as
an employee, agent, consultant or in any other capacity be employed in a
position similar to the position he was employed in by the Company or perform
any services similar to those he performed for the Company during his employment
by the Company on behalf of any for-profit business entity that is engaged in
Arizona, Texas, Florida or California in a business that competes with the
Company or offers the same services and products as those offered by the Company
at the time
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of the termination of the Employee's employment with the Company. By signing
this Agreement the Employee acknowledges that his promises in this paragraph are
necessary for the Company to protect and maintain its legitimate interests and
to protect its good will and other business and proprietary interests. The
Employee represents to the Company that the enforcement of the restrictions
contained in this paragraph will not be unduly burdensome to him because he
will be able to work and earn a livelihood not prohibited by this paragraph.
(f) that from the effective date of his termination through May 17, 2000,
he will not, whether for his own account or for the account of any other
individual, partnership, firm, corporation or business organization, either
directly or indirectly solicit or endeavor to entice away from the Company any
person who is employed by or otherwise engaged to perform services for the
Company, to interfere with the relationship of the Company with any person who
is then a customer of the Company, to communicate, regarding any matter
directly related to the Company with any person who is then a contractor of the
Company, including, but not limited to, Trinity Technical Services, Inc., or to
interfere with the relationship of the Company and any contractor of the Company
including, but not limited to, Trinity Technical Services, Inc.
(g) that if he fails to comply with any provisions of this Paragraph 4,
the Company shall be entitled, upon application to any court of competent
jurisdiction, to specific performance or injunction in order to enforce or
prevent any violation of such provision or provisions; and
(h) that nothing contained in this Paragraph 4 shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of damages from him,
and/or the cessation of any release payments discussed in the Letter Agreement.
5. Employee shall have 21 days to decide whether to sign this Release and
be bound by its terms. In addition, the Employee shall have the right to revoke
or cancel this Release within seven (7) days after he has signed it. Employee
understands that the Release shall not be effective or enforceable until the
seven (7) day revocation period ends. A cancellation or revocation must be
accomplished by delivery of a written notification sent to Xxxxxx Xxxxxx,
General Counsel of the Company, at 0000 Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx
00000-0000. In the event that this Release is cancelled or revoked, the Company
shall have no obligation to furnish the payments and benefits described in the
Letter Agreement.
6. The Employee acknowledges that the Company has informed him in writing
to seek the advice of an attorney of his choice prior to signing this Release,
and has had an adequate opportunity to seek legal counsel of his own choosing.
The Company and the Employee represent that they have relied upon the advice of
their respective attorneys, who are attorneys of their choice, or they have
knowingly and willingly not sought the advice of such attorneys. The Employee
hereby understands and acknowledges the significance and consequence of this
Release and represents that the terms of this Release are fully understood and
voluntarily accepted by him.
7. The Employee acknowledges that he has read this Release, has had an
opportunity to ask questions and have them explained to him and that he.
understands that this Release will
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have the effect of knowingly and voluntarily waiving any action he might pursue,
including breach of contract, personal injury, retaliation, discrimination on
the basis of race, age, sex, national origin, or disability or any other claims
described in Paragraph 2 of this Release. However, the Employee understands that
he is not releasing claims that may arise after this agreement is signed.
8. The Letter Agreement and this Release constitute the entire agreement
concerning the Employee's employment and termination and all other subjects
addressed therein and herein. The Letter Agreement and this Release supersede
and replace all prior negotiations and all agreements proposed or otherwise,
whether written or oral, concerning all subject matters covered therein and
herein.
9. If one or more of the provisions of this Release shall for any reason be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect or impair any other provision of
this Release, but this Release shall be construed as if such invalid, illegal,
or unenforceable provision had not been contained herein. Unless the context
requires otherwise, all words used in this Release in the singular number shall
extend to and include the plural, all words in the plural number shall extend to
and include the singular, and all words in any gender shall extend to and
include all genders.
10. The Employee and the Company further covenant and agree to execute and
deliver, upon request, any other and further documents or instruments necessary
and desirable to implement the terms and conditions of the Release.
11. It is the express intent of the parties that the terms and conditions
of the Letter Agreement and this Release shall be kept confidential. The parties
agree that the Employee may disclose the terms of the Letter Agreement and this
Release only to his spouse, his attorney, his financial advisors, and to any
local, state or federal agency requesting information regarding the terms of
the Letter Agreement and this Release. The parties agree that the Company may
disclose the terms of the Letter Agreement and the Release only to its
attorneys, officers, directors and to those employees that are necessary to
carry out the terms of this Agreement.
12. THE TERMS AND PROVISIONS OF THE LETTER AGREEMENT AND THIS RELEASE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
EXCLUSIVE OF ANY CONFLICT OF LAW PROVISIONS, AND VENUE FOR ALL PURPOSES OF THE
LETTER AGREEMENT AND THIS RELEASE SHALL BE IN A COURT OF COMPETENT JURISDICTION
SITTING IN DALLAS COUNTY, TEXAS.
13. BY SIGNING THIS AGREEMENT AND RELEASE, YOU ACKNOWLEDGE AND AFFIRM THAT
YOU ARE COMPETENT, THAT YOU WERE AFFORDED A TIME PERIOD OF AT LEAST 21 DAYS TO
REVIEW AND CONSIDER THIS AGREEMENT AND RELEASE WITH AN ATTORNEY OF YOUR CHOICE,
THAT YOU HAVE READ AND UNDERSTAND AND ACCEPT THIS DOCUMENT AS FULLY AND FINALLY
WAIVING AND RELEASING ANY AND ALL CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST
THE COMPANY (AS DEFINED ABOVE), INCLUDING ANY AND ALL
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CLAIMS AND RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THAT YOU HAVE
RECEIVED AND UNDERSTOOD ALL INFORMATION DESCRIBED IN PARAGRAPH 6 OF THIS
RELEASE, THAT NO PROMISES OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET
FORTH IN THIS AGREEMENT AND RELEASE, AND THAT YOU HAVE SIGNED THIS AGREEMENT
AND RELEASE FREELY, KNOWINGLY AND VOLUNTARILY, INTENDING TO BE LEGALLY BOUND BY
ITS TERMS.
IN WITNESS WHERE OF, the undersigned has hereunto set his hand as of the
day and year indicated below.
ACCEPTED AND AGREED
XXXX X. XXXX, XX.
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Xxxx X. Xxxx, Xx.
Dated: June 3, 1999
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