AGREEMENT AND GENERAL RELEASE
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This Agreement and General Release (the "Agreement") is made
and entered into, at Los Angeles, California, as of the 8th day
of November, 1996, by and between X.X. Xxxxxxxx Contractors,
Inc., a California Corporation ("PWS"), EIF Holdings, Inc., a
Hawaiian Corporation ("EIF"), American Eco Corporation, a
Canadian Corporation ("AEC"), and Xxxxxxx Xxxxxxx Xxxxxx, an
individual ("Austin").
WHEREAS, Austin was an employee, Chief Executive Officer and
a Director of PWS and its parent corporation, EIF, and the owner
of 5,526,861 shares of EIF common stock, representing a
controlling interest therein, which shares were traded to Julbin
International, Inc. ("Julbin") in a I.R.C. 368 (A)(1)(b)
Reorganization in exchange for 300,000 negotiable shares of AEC
common stock and other valuable consideration; and
WHEREAS, on or about July 1, 1996, Austin commenced a
lawsuit in the Superior Court of the State of California, County
of Los Angeles, docketed as Xxxxxxx X. Xxxxxx v. American Eco
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Corporation, a Canadian corporation; EIF Holdings. Inc., a Hawaii
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corporation; X.X. Xxxxxxxx Contractors, Inc., a California
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corporation; Julbin International, Inc., a British Virgin Islands
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corporation; QHI Xxxxxxxx Contractors, Inc., a California
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corporation; Xxxxxxx X. XxXxxxxx, an individual; and Does 1-100,
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Case Number BC152966 (the "Austin Complaint"); and
WHEREAS, PWS, QHI Xxxxxxxx Contractors, Inc. ("QHI"), EIF,
AEC and Xxxxxxx X. XxXxxxxx ("XxXxxxxx") have served and filed an
Answer and have denied and continue to deny each and every
material allegation set forth in the Austin Complaint and deny
having committed any wrong to the injury of Austin, and PWS, EIF
and AEC have filed a Cross-Complaint in said lawsuit against
Austin and others (the "Cross-Complaint"), the allegations of
with Austin denies; and
WHEREAS, on or about August 5, 1996, Austin served on PWS
and EIF a Demand for Arbitration before the American Arbitration
Association, AAA Case No. 72 481 00807 96 (the "Arbitration");
and
WHEREAS, on or about August 8, 1996, Austin filed a
complaint with the NASD by letter dated August 8, 1996 (the "NASD
Complaint"); and
WHEREAS, in order to avoid the further costs, burdens and
risks of litigation, Austin, on the one hand, and PWS, EIF and
AEC on the other hand, desire to settle fully and finally any and
all differences between them, including, but not limited to,
those differences embodied in the Austin Complaint, the
Cross-Complaint, the Arbitration and the NASD Complaint, and any
differences that might arise out of or relate to Austin's
positions with PWS and EIF and the termination thereof, and
Austin's exchange of EIF stock for AEC stock;
NOW, THEREFORE, IT IS HEREBY AGREED THAT:
1. Austin's positions with EIF terminated on or before
March 1, 1996. Austin's positions with PWS terminated effective
on July 16, 1996 (the "Termination Date"). As of the Termination
Date, Austin maintains that he had resigned all positions held as
an employee, officer and/or director of PWS, EIF, and any of
their respective subsidiaries, parent corporations and/or
affiliates.
2. (a) Austin agrees not to enter, become or remain
present on, or otherwise have access to, any of the premises or
property of PWS, EIF, or any of their respective subsidiaries,
without the prior written consent of PWS's President, except in
the capacity of Landlord pursuant to applicable Lease agreements
or as provided by law, and except for premises occupied by other
tenants in any building occupied by PWS and/or EIF provided that
Austin confine himself to those portions of the premises solely
occupied by such other tenants, and the parking lot, driveways,
ramps, and basement storage area.
(b) Other than with the President of PWS, Austin
agrees not to attempt, directly or indirectly, to initiate any
communication with any other officer, director or employee of
PWS, QHI, EIF, or any of their respective subsidiaries, for any
purpose relating to the business of PWS, QHI, EIF, AEC, or any of
their respective subsidiaries or affiliates, without the prior
written consent of PWS's President. Notwithstanding the
foregoing, Austin may communicate with the President of PWS, or
with any officer, director or employee of PWS, QHI or EIF
designated in writing by the President of PWS, concerning the
transfer and sale of the AEC stock hereunder and pursuant to
Rider A hereto, any communications concerning the obligations of
the parties under this Agreement, and any communications
concerning the office lease between ADJ Partnership and PWS.
3. (a) Austin represents and warrants that prior to or at
the Closing he has returned to PWS, EIF and QHI any and all
documents, software, equipment and all other materials or other
things in Austin's possession, custody, or control, if any, which
are the property of PWS, EIF or QHI including, but not limited
to, any PWS, EIF, QHI identification, keys, and the like,
wherever such items may have been located, as well as all copies
of any business records of PWS, EIF or QHI; provided, however,
that Austin shall be entitled to retain copies of his personal
records which directly relate to his personal relationships with
PWS, EIF or QHI such as, by way of example, but not limited to,
his personal compensation, his taxes, his personal contracts, his
personal correspondence relating to his personal contracts and/or
termination, and/or his stock ownership (hereinafter Austin's
"Personal Records").
(b) Austin hereby represents that, other than those
materials Austin has returned to PWS, EIF and QHI pursuant to
Paragraph 3(a), above, Austin has not copied or caused to be
copied, and has not printed-out or caused to be printed-out, any
software, computer disks, or other documents other than those
documents generally available to the public, or retained any
other materials originating with or belonging to PWS, QHI, EIF or
any of their respective subsidiaries, or controlling shareholders
(other than his Personal Records) and that Austin will not do so
or cause or permit any other person to do so on his behalf.
Austin further represents that Austin has not retained and will
not retain in his possession any software, documents or other
materials in machine or other readable form, which are the
property of, originated with, were obtained or created in the
course of Austin's employment, except for his Personal Records.
4. PWS, AEC and EIF represent and warrant that prior to or
at the Closing they have returned to Austin any of his personal
files and property, if any, in their possession, custody, or
control.
5. Austin shall be entitled to any rights guaranteed by
the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). Premium and other payments required for any continued
health insurance coverage beyond the Termination Date, in
accordance with COBRA, shall be the sole responsibility of
Austin.
6. Austin represents, warrants, acknowledges and agrees
that he has been paid for, and that none of PWS, EIF, QHI or AEC
owes or shall owe Austin any wages, commissions, bonuses,
vacation pay, severance pay, or other compensation or payments of
any kind or nature whatsoever, other than as provided in this
Agreement.
7. Austin hereby authorizes and instructs his attorneys,
the law firm of Xxxxxx Xxxx White & Xxxx, to execute and deliver
to PWS's, EIF's and AEC's attorneys, the law firm of Troop
Xxxxxxxxx Xxxxxxx & Xxxxxx LLP (to the attention of Xxxxxxx X.
Xxxxxx, Esq.) and Xxxx & Priest LLP (to the attention of Xxxxxxxx
X. Xxxxxxxxx, Esq.), at the Closing of this Agreement, the
original and two copies of (a) a Request for Dismissal With
Prejudice, dismissing the Austin Complaint with prejudice and
without fees or costs, (b) a Stipulation dismissing with
prejudice and without fees or costs the Arbitration, and (c) a
letter requesting dismissal with prejudice, and without fees or
costs, of the NASD Complaint. Austin consents to the filing of
(a) such Request for Dismissal with the Superior Court of the
State of California, County of Los Angeles, (b) such Stipulation
dismissing the Arbitration with the American Arbitration
Association, and (c) such letter dismissing the NASD Complaint.
8. PWS, EIF and AEC hereby authorize and instruct their
attorneys, the law firm of Troop Xxxxxxxxx Xxxxxxx & Xxxxxx LLP,
to execute and deliver to Austin's attorneys, the law firm of
Xxxxxx Xxxx White & Xxxx, at the Closing of this Agreement, the
original and two copies of a Request for Dismissal with
Prejudice, dismissing the Cross-Complaint against Austin and Xxxx
Xxxxxxx with prejudice and without fees or costs, provided that
Xxxx Xxxxxxx, at the time of Closing, delivers to Troop Xxxxxxxxx
Xxxxxxx & Pasich LLP a release in form acceptable to PWS. PWS,
EIF and AEC consent to the filing of (a) such Request for
Dismissal with the Superior Court of the State of California,
County of Los Angeles, and (b) if their consent is required, such
documents as may be necessary to dismiss the Arbitration,
including without limitation the Stipulation referred to in
Paragraph 7(b), above, and the NASD Complaint. PWS, EIF, and AEC
further authorize and instruct their attorneys, the law firm of
Troop Xxxxxxxxx, Xxxxxxx & Xxxxxx LLP, to execute and deliver to
Austin's attorneys, the law firm of Xxxxxx Xxxx White & Xxxx, at
the Closing of this Agreement, the original and two copies of a
Request for Dismissal without Prejudice, dismissing the
Cross-Complaint as to all remaining parties other than Xxxxxxx
Xxxxxx and Xxxx Xxxxxxx without prejudice. In exchange for the
dismissal without prejudice of the Cross-Complaint, Xxxxxxxx
Xxxxxxx and Consolidated Western Contractors, Inc. shall sign a
separate letter agreement to be provided at the Closing by Austin
by which they agree that, for a period of one hundred twenty
(120) days following the Closing of this Agreement, if Xxxxxxxx
Xxxxxxx and/or Consolidated Western Contractors, Inc. intend to
file a lawsuit against PWS, EIF, or AEC, that they will give
written notice to each party whom they intend to xxx (from among
PWS, EIF, and AEC) of such intent; such notice to be given two
(2) weeks before filing any such lawsuit in order to give PWS,
EIF and/or AEC the opportunity to re-file their claims, if any,
against Xxxxxxxx Xxxxxxx and/or Consolidated Western Contractors,
Inc.
9. In consideration of this Agreement: (a) PWS, EIF,
and/or AEC shall at the Closing of this Agreement pay to Austin
$35,000 by cashier's check as reimbursement of all expenses of
Austin, whether or not such expenses have heretofore been
submitted by Austin to PWS for payment; (b) AEC shall at the
Closing deliver or cause to be delivered to Farmers and Merchants
Bank of Long Beach (the "Bank"), as Escrow Agent, 300,000
unrestricted and freely tradeable shares of AEC common stock (the
"Shares") on an irrevocable basis (unless a court subsequent to
the Closing should order otherwise by reason of a material breach
of this Agreement by Austin) in accordance with and subject to
the terms and conditions set forth in Rider A attached hereto and
incorporated by reference, provided that the Bank first executes
Rider A as Escrow Agent; and (c) AEC shall deliver to Austin at
the Closing its guaranty, in form acceptable to ADJ Partnership,
of the base rent to be paid by PWS to ADJ Partnership for
November and December, 1996, inclusive, under the office lease
between PWS and ADJ Partnership.
10. In further consideration of this Agreement, AEC shall
provide to counsel for Austin at the Closing of this Agreement:
(a) its guaranty, in form and substance satisfactory to the Bank
(the "AEC Guaranty"), of the payment and performance of any loans
made to PWS, EIF or QHI pursuant to the Optional Advance Note and
Continuing Security Agreement dated on or about October 9, 1995,
as amended by the Settlement Agreement dated August 9, 1996
(hereinafter collectively the "Loan Agreement"); and (b) a
Certificate of a duly authorized officer of AEC as to the
incumbency, and setting forth a specimen signature, of each
person who has signed the AEC Guaranty. AEC acknowledges that
Austin shall have the right to request that the Bank pursue and
exhaust all security for any loans made under the Loan Agreement,
including without limitation the AEC Guaranty, before pursuing
any guaranty or security given by Austin to the Bank in
connection with such loans. Austin represents that other than
the Loan Agreement, there are no other obligations or agreements
entered into by him with the Bank on behalf of PWS, EIF, QHI or
any of their subsidiaries, and PWS, EIF and QHI represent that
since July 1, 1996, other than the Loan Agreement, there are no
other obligations or agreements entered into by them or by any of
their subsidiaries with the Bank for which Austin is liable.
11. In the event that the payment of the $35,000 described
in Paragraph 9 above is set aside or ordered returned in whole of
in part as a preference in any bankruptcy, judicial, or
receivership proceeding filed by or against PWS and/or EIF, then
within ten (10) days of written notice thereof by Austin to AEC,
AEC shall pay to Austin that portion of the payment which Austin
has been compelled or ordered to return or restore as a
preference.
12. (a) Subject to and except as to the covenants and
obligations of the Company Releasees (as defined herein), or any
of them, pursuant to the terms of this Agreement and Rider A
hereto, Austin, in consideration of this Agreement and the mutual
covenants set forth herein, and for other good and valuable
consideration received from PWS, EIF, and AEC receipt whereof is
hereby acknowledged, and in consideration of the mutual, general
releases, in form acceptable to Austin, to be exchanged between
Austin, on the one hand, and Julbin, QHI, and Xxxxxxx X.
XxXxxxxx, on the other hand, at the Closing and as a condition to
the Closing of this Agreement, hereby releases and forever
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discharges PWS, EIF, AEC, XxXxxxxx, QHI, Julbin and each of them
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and each of their respective current, former, and future
controlling shareholders, subsidiaries, related companies,
predecessor companies, directors, officers, employees, agents,
attorneys, successors, and assigns, and each of their current,
former and future controlling shareholders, directors, officers,
employees, agents, and attorneys of such subsidiaries, related
companies, predecessor companies, and controlling shareholders,
(PWS, EIF, AEC, XxXxxxxx, Julbin, QHI and the foregoing other
persons and entities are herein sometimes collectively referred
to as the "Company Releasees"), from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, whether
-------
known or unknown, in law or equity, whether statutory or common
----- -- -------
law, whether federal, state, local, or otherwise, including, but
not limited to, any claims relating to, or arising out of any
aspect of Austin's employment with PWS, QHI or EIF, any agreement
concerning such employment, or the termination of such
employment, and any agreement, transaction and/or relationship
between Austin, on the one hand, and PWS, and EIF, QHI, AEC and
Julbin, or any of them, on the other hand, including, but not
limited to:
(i) any and all claims asserted, or which could
have been asserted in the Austin Complaint, the NASD
Complaint, the Arbitration or in response to the Cross-
Complaint;
(ii) any and all claims of wrongful discharge or
breach of contract, any and all claims for equitable
estoppel, any and all claims for employee benefits,
including, but not limited to, any and all claims under the
Employee Retirement Income Security Act of 1974, as amended,
and any and all claims of employment discrimination on any
basis, including, but not limited to, any and all claims
under Title VII of the Civil Rights Act of 1964, as amended,
under the Age Discrimination in Employment Act of 1967, as
amended, under the Civil Rights Act of 1866, 42 U.S.C. [S]
1981, under the Civil Rights Act of 1991, as amended, under
the Americans With Disabilities Act of 1990, as amended,
under the Family and Medical Leave Act of 1993, under the
Immigration Reform and Control Act of 1986, under the
California Fair Employment and Housing Act, as amended, and
under the California Labor Code, as amended;
(iii) any and all claims under any other
federal, state, or local labor law, civil rights law, fair
employment practices law, or human rights law;
(iv) any and all claims of slander, libel,
defamation, invasion of privacy, intentional or negligent
infliction of emotional distress, intentional or negligent
misrepresentation, fraud, and prima facie tort;
(v) any and all claims for monetary recovery,
including, but not limited to, back pay, front pay,
liquidated, compensatory, and punitive damages, attorneys'
fees, experts' fees, disbursements, and costs;
which Austin, Austin's heirs, executors, administrators,
successors, and assigns ever had or now have or hereafter can,
shall or may have against the Company Releasees, or any of them,
for, upon, or by reason of any matter, cause, or thing
whatsoever, from the beginning of the world to the date of
Austin's execution of this Agreement.
(b) By way of additional clarification, and without
limitation or qualification of any of the provisions of
Subparagraph 12(a), above, Austin, on behalf of himself and his
heirs, executors, administrators, successors, and assigns hereby:
(i) waives, and releases the Company Releasees
from any obligation with respect to the signing bonus,
promissory note, and life insurance policy described in
Sections 1 and 2 of the Supplement and Amendment to
Employment Agreement of X.X. Xxxxxxxx with Xxxxxxx X. Xxxxxx
effective as of January 31, 1996; Austin hereby represents
and warrants that he does not have an executed original of
such promissory note nor a copy of any executed original and
represents and warrants that he was never given an executed
original promissory note and that he has not assigned,
pledged, hypothecated or otherwise encumbered such
promissory note, the signing bonus and life insurance; and
(ii) acknowledges that the only rights, options,
or warrants to purchase shares of capital stock of EIF that
he owns, either of record or beneficially, are options to
purchase 500,000 shares of EIF's common stock of an exercise
price of $0.34 per share on or before January 31, 1999,
which options were granted or otherwise referenced under the
Settlement and Release Agreement made as of June 1995 and
vested pursuant to the Mutual Release and Termination of
Employment Agreement effective March 1, 1996 between Austin
and EIF (the "Options") and represents and warrants that he
has not heretofore exercised such Options, and agrees that
all such Options are hereby canceled and terminated and of
no further force and effect.
13. (a) Subject to and except as to the covenants and
obligations of Austin pursuant to the terms of this Agreement and
Rider A hereto, PWS, EIF, and AEC (herein sometimes collectively
called "PWS Releasors"), and each of them, in consideration of
this Agreement and the mutual covenants set forth herein, and for
other good and valuable consideration received from Austin,
receipt whereof is hereby acknowledged, hereby release and
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forever discharge Austin and his attorneys, agents (other than
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companies in which Austin was an officer, director, partner or
employee as of the Termination Date), heirs, executors, and
administrators, successors and assigns, and each of them (Austin
and the foregoing other persons and entities are hereinafter
defined separately and collectively as the "Austin Releasees"),
from all actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, whether known or unknown, in law
------- ----- -- -------
or equity, whether statutory or common law, whether federal,
state, local, or otherwise, including, but not limited to, any
claims relating to, or arising out of, any aspect of Austin's
employment with PWS or EIF or with any of PWS's or EIF's
subsidiary companies, any agreement concerning such employment
and the termination of such employment, and any agreement,
transaction and/or relationship between Austin, on the one hand,
and PWS, EIF, QHI, Julbin and/or AEC, or any of them, on the
other hand, including, but not limited to:
(i) any and all claims asserted, or which could
have been asserted against him in the Cross-Complaint, or in
response to the Arbitration and the NASD Complaint;
(ii) any and all claims relating to or arising out
of any Stock Purchase Agreement dated August 24, 1995 by and
between Austin and Julbin;
(iii) any and all claims relating to or
arising out of Austin's service and/or status as an officer,
employee, shareholder and/or director of PWS and/or EIF;
(iv) any and all claims of slander, libel,
defamation, invasion of privacy, intentional or negligent
infliction of emotional distress, intentional or negligent
misrepresentation, fraud and prima facie tort;
(v) any and all claims for monetary recovery,
including, but not limited to, back pay, front pay,
liquidated, compensatory, and punitive damages, attorneys'
fees, experts' fees, disbursements, and costs;
which the PWS Releasors, or any of them, and their respective
current, former, and future controlling shareholders,
subsidiaries, related companies, predecessor companies,
directors, officers, employees, agents, attorneys, successors and
assigns ever had, now have, or hereafter can, shall, or may have
against the Austin Releasees, or any of them, for, upon, or by
reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of this Agreement.
(b) By way of additional clarification, and without
limitation or qualification of any of the provisions of Paragraph
13(a), above, PWS, EIF and AEC hereby release, hold harmless,
indemnify, and agree to defend Austin in any action or proceeding
with respect to any remaining guaranty by Austin with respect to
any loans made to PWS, EIF and/or QHI by the Bank pursuant to the
Loan Agreement including, but not limited to, any interest or
expense relating thereto.
14. The parties hereto expressly waive and relinquish all
rights and benefits afforded by Section 1542 of the Civil Code of
the State of California ("Section 1542"), or by any other similar
law of any other state or local jurisdiction, and do so
understanding and acknowledging the significance and consequence
of such specific waiver of Section 1542 or any other similar law.
Section 1542 of the Civil Code of the State of California states
as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially
affected his settlement with the debtor."
Thus, notwithstanding the provisions of Section 1542, or any
other similar law, and for the purpose of implementing a full and
complete release and discharge, the parties hereto each expressly
acknowledges that this Agreement is intended to include in its
effect, without limitation, all claims which such party does not
now or suspect to exist in his or its favor at the time of
execution hereof, and that this Agreement contemplates the
extinguishment of any such claim or claims.
15. Austin warrants and represents that he has no knowledge
that any person or entity other than Austin is entitled to
assert, holds, has asserted or intends to assert any claim based
on or arising out of any alleged discriminatory, unlawful,
wrongful, tortious, or other conduct, whether by act or omission,
against Austin by the Company Releasees, or any of them,
including, but not limited to, any and all claims for attorneys'
fees, experts' fees, or damages resulting as a consequence
thereof, based upon or seeking relief, in whole or in part, on
account of actions or failures to act by the Company Releasees,
or any of them, which may have occurred or failed to occur before
Austin's execution of this Agreement. Austin further represents
and warrants that Austin has not assigned and shall never assign
any such claim, and that in the event any such claim is filed or
prosecuted by any other person or entity, Austin shall cooperate
fully with the Company Releasees and shall move immediately to
withdraw Austin's name and to disassociate himself completely
from any such claim, shall request such person or entity to
withdraw such claim with prejudice, and shall not voluntarily
cooperate with or testify on behalf of the person or entity
prosecuting such claim. Austin further warrants and represents
that he has no knowledge that any company of which he was an
officer, director, employee or partner as of the Termination Date
is entitled to assert, holds, has asserted or intends to assert
any claim against the Company Releases, or any of them, except
for claims by ADJ Partnership (relating to the PWS lease).
16. The PWS Releasors, and each of them, represent and
warrant that they have no knowledge that any person or entity
other than the PWS Releasors is entitled to assert, holds, has
asserted or intends to assert any claim against the Austin
Releasees, or any of them, based on or arising out of any alleged
discriminatory, unlawful, wrongful, tortious, or other conduct,
whether by act omission, against the PWS Releasors, or any of
them, by Austin, including, but not limited to, any and all
claims for attorneys' fees, experts' fees, or damages resulting
as a consequence thereof, based upon or seeking relief, in whole
or in part, on account of actions or failures to act by Austin
which may have occurred or failed to occur before the PWS
Releasors' execution of this Agreement. The PWS Releasors, and
each of them, further represent and warrant that they have not
assigned and shall never assign any such claim, and that in the
event any such claim is filed or prosecuted by any other person
or entity, the PWS Releasors, and each of them, shall cooperate
fully with Austin and shall move immediately to withdraw their
name(s) and to disassociate themselves completely from any such
claim, shall request such person or entity to withdraw such claim
with prejudice, and shall not voluntarily cooperate with or
testify on behalf of the person or entity prosecuting such claim.
17. Austin warrants and represents that, with the sole
exception of the Austin Complaint, unlawful detainer proceedings
brought by the ADJ Partnership, the Arbitration, and the NASD
Complaint, Austin has not commenced, initiated, filed or joined
as plaintiff, and Austin covenants and agrees not to initiate,
commence, file, join as plaintiff, aid, or in any way prosecute
or cause to be initiated, commenced or prosecuted against the
Company Releasees, or any of them, whether directly or
indirectly, personally or through or by a family member or other
agent, representative, or surrogate, any action, charge,
complaint, governmental investigation, criminal action or
prosecution or other proceeding, whether administrative,
judicial, legislative, or otherwise, including, but not limited
to, any class action or shareholder derivative action, and
including any claim or request for attorneys' fees, experts'
fees, disbursements, or costs based upon or seeking relief, in
whole or in part, on account of actions or failures to act by the
Company Releasees, or any of them, which may have occurred or
failed to occur before the date of Closing of this Agreement.
18. The PWS Releasors, and each of them, warrant and
represent, with the sole exception of the Cross-Complaint, that
neither they nor any of their respective officers, directors,
shareholders, attorneys, or agents have commenced, initiated,
filed or joined as plaintiff, and the PWS Releasors, and each of
them, covenant and agree that neither they nor any of their
respective officers, directors, controlling shareholders,
attorneys, or agents will commence, initiate, file, join as
plaintiff, aid, or in any way prosecute or cause to be initiated,
commenced or prosecuted against the Austin Releasees, or any of
them, whether directly or indirectly, personally or through any
agent, representative, or surrogate, any action, charge,
complaint, governmental investigation, criminal actions or
prosecutions, or other proceeding, whether administrative,
judicial, legislative or otherwise, including, but not limited
to, any class action or shareholder derivative action and
including any claim or request for attorneys' fees, experts' fees
disbursements, or costs based upon or seeking relief, in whole or
in part, on account of actions or failure to act by the Austin
Releasees, or any of them, which may have occurred or failed to
occur before the date of Closing of this Agreement.
19. Austin agrees to cooperate reasonably and at no expense
to Austin with PWS and/or EIF in the event that PWS and/or EIF,
or either of them, become a defendant or respondent in or to any
legal proceeding or claim arising out of or relating to the
business or operations or activities of PWS and/or EIF, or either
of them, during the period of Austin's employment with PWS or
EIF.
20. (a) PWS, EIF, and AEC agree to indemnify, defend and
hold Austin harmless from and against any and all claims,
demands, losses, liabilities, obligations, damages, recoveries,
suits, judgments, causes of action, legal proceedings, penalties,
fines, other sanctions and any costs and expenses, including
interest and attorneys' fees and disbursements (collectively,
"Claims") to which Austin may be exposed at any time that
directly arise from, directly result from, or directly relate to
the discharge by Austin of his duties as, or his status as, an
officer, director, shareholder or employee of EIF and/or PWS with
respect to:
(i) any debt, liability, obligation or contract
of, or Claims of any type against or relating to, PWS, EIF, QHI,
and/or AEC, and each of them, and/or their respective
subsidiaries, employees, agents, attorneys, successors, and
assigns, whether contingent or absolute, direct or indirect,
presently known or unknown, suspected or unsuspected, matured or
unmatured, and whether incurred or accrued before or after the
Closing of this Agreement; and
(ii) the past, present and future business,
operations and/or management of PWS, EIF, QHI, and/or AEC.
(b) The indemnification, defense and hold harmless
obligations of PWS, EIF, and AEC herein provided shall not apply
to any Claim to which Austin is exposed resulting from (a) the
conduct of Austin which is outside the reasonable course and
scope of his authority as an officer, director, employee and/or
shareholder of EIF and/or PWS, and/or (b) unlawful acts known or
believed by Austin to be unlawful at the time they were
performed.
21. Austin has kept and shall keep confidential, and,
unless compelled by subpoena or court order, shall not hereafter
disclose to any person, firm, corporation, governmental agency,
or other entity, any trade secret, proprietary information, or
confidential information of PWS, EIF, QHI, AEC, or any of their
respective controlling shareholders, or subsidiaries. By
entering into this Agreement, Austin makes no representation or
admission that any such information or material exists within his
knowledge or possession. In the event that Austin is served with
a subpoena or court order or other notice to produce the
foregoing information, Austin shall promptly give written notice,
by fax, to PWS, Attention: Xxxxxx Xxxxxx, and shall provide a
copy of same to PWS so that PWS may object in a timely manner to
such subpoena or notice.
22. PWS, EIF, QHI and AEC, and any of their respective
controlling shareholders, or subsidiaries on the one hand, and
Austin and any corporation or other business entity with which
Austin may be associated, whether as an employee, owner, or other
capacity, on the other hand, shall be free to compete with and
against the other as and to the full extent permitted by
applicable law.
23. The releases and covenants set forth in Paragraphs 12,
13, 14, 17, 18, and 31 herein shall not affect, extend to or
include the rights and obligations of the parties under this
Agreement which shall continue to exist after the Closing; nor
will those releases and covenants affect, extend to or include
the rights and obligations of the parties pursuant to the office
lease between ADJ Partnership and PWS, and any guaranty of such
Lease by AEC.
24. Should any provision of this Agreement be declared or
determined by a court to be illegal or invalid, the validity of
the remaining parts, terms, or provisions shall not be affected
thereby, and said illegal or invalid part, term, or provision
shall be deemed not to be a part of this Agreement.
25. (a) The parties hereto agree that in the event of any
breach by a party to this Agreement, or the fact that any
representation made by a party to this Agreement in this
Agreement was false when made, the breaching party shall
indemnify and hold harmless the non-breaching party or parties
from and against any and all loss, cost, damage, or expense,
including, but not limited to, attorneys' fees and costs,
incurred by the non-breaching party or parties, or any of them,
as a result of such breach or misrepresentation.
(b) The parties agree that the prevailing party in any
action between any of them arising from or relating to any breach
or alleged breach of this Agreement shall be entitled to recover
reasonable attorneys' fees and experts' fees from the losing
party in such action.
26. (a) The parties hereto hereby acknowledge that in the
event of a breach of the covenants or agreements in this
Agreement, the non-breaching party or parties would not have an
adequate remedy at law for money damages. It is therefore agreed
that the parties hereto, or any of them, in addition to and
without limiting any other remedy or right they may have, will
have the right to an injunction or other equitable relief in any
court of competent jurisdiction enjoining any such breach and
enforcing specifically the terms and provisions hereof, and the
breaching party hereby waives any and all defenses the breaching
party may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or equitable
relief.
(b) All rights, powers and remedies granted under this
Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise
or beginning of the exercise of any thereof by either party shall
not preclude the simultaneous or later exercise of any such
right, power or remedy by such party.
27. This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their successors and assigns.
28. This Agreement shall be deemed to have been made at Los
Angeles, California, and shall be interpreted, construed, and
enforced pursuant to the laws of the State of California and in
the state or federal courts of California.
29. The Closing of this Agreement, as referred to herein,
shall take place on November 8, 1996, at 10:00 a.m., at the
offices of Troop Xxxxxxxxx Xxxxxxx & Xxxxxx LLP, or under such
other circumstances including time, date and place, as the
parties may mutually agree. All obligations created in this
Agreement and all releases, representations, warranties,
acknowledgments and covenants given herein shall be deemed
binding and effective only upon the completion of the Closing of
this Agreement.
30. As used in this Agreement, the singular or plural
number shall be deemed to include the other whenever the context
so indicates or requires.
31. This Agreement, including the attached Rider A, sets
forth the entire agreement between the parties hereto, and,
effective as of the Closing, fully terminates and supersedes any
and all prior agreements or understandings between Austin and the
Company Releasees, or any of them, pertaining to the subject
matter hereof, including, but not limited to, the January 1, 1993
Employment Agreement between Austin and PWS, as subsequently
amended, the Settlement and Release Agreement made as of June
1995, the August 17, 1995 Amended Employment Agreement between
Austin and EIF, as subsequently amended, the August 24, 1995
Stock Purchase Agreement by and between Austin and Julbin, the
February 28, 1996 Indemnification by and between Austin and PWS,
EIF and AEC, and the Mutual Release and Termination of Employment
Agreement effective March 1, 1996 between Austin and EIF, and may
not be modified orally. The foregoing notwithstanding, this
Agreement shall not act to terminate, limit, amend, or supersede
(i) the assignment by Austin to EIF of claims as against Xxxxx X.
Xxxxxx or his affiliates, as set forth in Paragraph 6 of the June
1995 Settlement Agreement between Austin and EIF; or (ii) the
office lease between ADJ Partnership and PWS pertaining to the
PWS business premises.
32. The parties to this Agreement expressly acknowledge,
represent, and warrant that the terms and provisions of this
Agreement herein stated are the only consideration for signing
this Agreement; that no other promise or agreement of any kind
has been made to or with any person or entity whatsoever to cause
the signing of this Agreement; and that, in executing this
Agreement, they are not relying and have not relied upon any
representation or statement made by any of the other parties or
their agents, representatives, or attorneys with regard to the
subject matter, basis, or effect of this Agreement or otherwise;
and that each of the parties hereto has the full power and
authority to execute this Agreement, to make each of the
representations, warranties, and acknowledgments herein, and to
perform each of its covenants and obligations set forth or
established herein. Furthermore, each of the corporate parties
to this Agreement represents that its execution and performance
of this Agreement has been authorized by all required corporate
action, and that the person signing for it has been properly
authorized to do so.
33. Each party to this Agreement covenants and agrees to
execute and deliver such other and further agreements,
instruments and other documents reasonably necessary to
effectuate, evidence and further the purposes of this Agreement
and the transactions contemplated hereby.
34. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which shall constitute one and the same instrument.
35. THE PARTIES TO THIS AGREEMENT EACH EXPRESSLY
ACKNOWLEDGE, REPRESENT, AND WARRANT THAT THEY HAVE CAREFULLY READ
THIS AGREEMENT AND GENERAL RELEASE; THAT THEY FULLY UNDERSTAND
THE TERMS, CONDITIONS AND SIGNIFICANCE OF THIS AGREEMENT AND
GENERAL RELEASE; THAT THEY HAVE HAD AMPLE TIME TO CONSIDER AND
NEGOTIATE THIS AGREEMENT AND GENERAL RELEASE; THAT THEY HAVE
ADVISED AND URGED THE OTHER TO CONSULT WITH AN ATTORNEY
CONCERNING THIS AGREEMENT AND GENERAL RELEASE; THAT THEY HAVE HAD
A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT AND GENERAL RELEASE
WITH AN ATTORNEY, AND HAVE DONE SO OR HAS DECLINED TO DO SO; AND
THAT THEY HAVE EXECUTED THIS AGREEMENT AND GENERAL RELEASE
VOLUNTARILY, KNOWINGLY, AND WITH SUCH ADVICE FROM THEIR
ATTORNEYS, AS THEY DEEMED APPROPRIATE.
PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE
HAS IMPORTANT LEGAL CONSEQUENCES.
X.X. XXXXXXXX CONTRACTORS, INC.
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
--------------------------- ------------------------------
Name: Executive Vice XXXXXXX X. XXXXXX
Title: President
EIF HOLDINGS, INC. AMERICAN ECO CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Name: Name:
Title: President Title: President
