EXHIBIT 10.35
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated December 17, 1996, by and among ALL
AMERICAN SEMICONDUCTOR, INC., a Delaware corporation ("All American"), ALL
AMERICAN ADDED VALUE, INC., a California corporation ("California Subsidiary"),
ALL AMERICAN A.V.E.D., INC., a Colorado corporation ("Colorado Subsidiary"), and
each of the persons whose names are set forth on Exhibit "A" AND have executed
and delivered this Agreement on or prior to the Opt-In Date (individually, a
"Target Stockholder" and, collectively, the "Target Stockholders").
PRELIMINARY STATEMENT
All American, California Subsidiary, Colorado Subsidiary, Added Value
Electronics Distribution, Inc., A.V.E.D.-Rocky Mountain, Inc., and the Target
Stockholders entered into a Merger Purchase Agreement dated as of October 31,
1995 and/or certain other agreements in connection therewith and the closing
thereof (collectively, the "Purchase Agreement"), including various employment
agreements between California Subsidiary or Colorado Subsidiary and certain of
the Target Stockholders (the "Employment Agreements"). Disputes have arisen
concerning certain alleged misrepresentations and alleged wrongful acts and
omissions of certain of the Target Stockholders relating to the transactions
described in the Purchase Agreement and some of their respective employments
with California Subsidiary or Colorado Subsidiary. All American, California
Subsidiary and Colorado Subsidiary (collectively, the "All American Companies")
and the Target Stockholders who have executed and delivered this Agreement on or
prior to the Opt-In Date have agreed to settle such disputes on the terms set
forth in this Agreement. No party to this Agreement is making any admission of
any wrongdoing by agreeing to the matters herein set forth.
NOW, THEREFORE, it is agreed as follows:
1. DEFINED TERMS. Capitalized terms used herein, which are not defined
herein, shall have the respective meanings ascribed to them in the Purchase
Agreement or, as applicable, the Employment Agreements.
2. TARGET STOCKHOLDERS AFFECTED. Notwithstanding that this Agreement
contains signature lines for several of the Target Stockholders, it is
recognized that fewer than all of such Target Stockholders may have executed and
delivered this Agreement. This Agreement shall be fully effective as between the
All American Companies (on the one hand) and those of the Target Stockholders
who have executed and delivered this Agreement (on the other hand) on or before
December 20, 1996 (the "Opt-In Date"), even though fewer than all of such Target
Stockholders may have executed and delivered this Agreement on or prior to the
Opt-In Date. No provision of this Agreement relating to or affecting the Target
Stockholders shall benefit or burden, in any way, or be deemed to release, any
Target Stockholder who has not executed and delivered this Agreement
on or prior to the Opt-In Date, nor shall this Agreement create any obligation
of any kind on the part of the All American Companies to any Target Stockholder
who has not executed and delivered this Agreement on or prior to the Opt-In
Date. The All American Companies reserve all of their respective claims, rights
and remedies under the Purchase Agreement, the Employment Agreements at law or
in equity against any Target Stockholder who has not executed and delivered this
Agreement on or prior to the Opt-In Date, including, without limitation, all
matters with respect to which the Target Stockholders are or may be jointly and
severally liable. The release of any Target Stockholder herein who has executed
and delivered this Agreement on or prior to the Opt-In Date shall not release
any Target Stockholder who has not executed and delivered this Agreement on or
prior to the Opt-In Date with respect to any joint and several liability such
Target Stockholder may have for the released Target Stockholder's
misrepresentations or wrongful acts or omissions.
3. ADDITIONAL CONSIDERATION. The obligation of All American to
pay the Additional Consideration is hereby irrevocably and unconditionally
waived, released, canceled and terminated in its entirety with respect to each
Target Stockholder who has executed and delivered this Agreement on or prior to
the Opt-In Date, without any obligation on the part of the All American
Companies to pay any such Target Stockholder any compensation or consideration
therefor.
4. ▇▇▇▇▇▇ ▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇ EMPLOYMENT AGREEMENTS. Each of ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ agrees, effective as of the Opt-In Date, that his
Employment Agreement with California Subsidiary is, subject to the survival of
the provisions of Sections 10, 11, 12 and 13 thereof (as to Section 11, as same
may be modified pursuant to this Agreement) terminated and of no further force
or effect. California Subsidiary shall have no further obligation of any kind to
▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇ under such Employment Agreements, except only that each
shall continue to receive his Salary through June 30, 1997.
5. CANCELLATION OF CERTAIN ALL AMERICAN SHARES. Each of the Target
Stockholders listed below who has executed and delivered this Agreement on or
prior to the Opt-In Date agrees that the number of All American Shares issued to
him or her as part of the Merger Consideration set forth opposite his or her
name below shall be unconditionally and irrevocably canceled, without any
obligation on the part of any of the All American Companies to pay any such
Target Stockholder any compensation or consideration therefor:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 20,000
▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 25,000
▇▇▇▇▇ ▇▇▇▇▇▇ 25,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12,500
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12,500
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 12,500
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All American is hereby irrevocably authorized to execute, deliver,
cancel and reissue all such documents and certificates, and to do or cause to be
done all such acts and things, as may be necessary or appropriate to effectuate
such cancellations.
6. STOCK OPTIONS. Each of the following Target Stockholders shall,
within fifteen business days following such Target Stockholder's execution and
delivery of this Agreement (provided such execution and delivery occurs on or
prior to the Opt-In Date), be granted an option to acquire the number of All
American Shares set forth opposite his or her name below:
▇▇▇▇▇ ▇▇▇▇▇▇ 25,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12,500
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12,500
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 12,500
All of such options shall be issued pursuant to All American's Amended
and Restated Employees', Officers', Directors' Stock Option Plan (the "Plan")
pursuant to stock option agreements in All American's customary form used for
issuances of stock options pursuant to the Plan. Each such stock option shall
include the following terms: (a) the purchase price at which such options may be
exercised shall be the greater of (i) $1.50 per share and (ii) the fair market
value at the date of grant (as defined in the Plan); (b) all of the options
shall be 100% vested on the date of grant; and (c) all of such options shall be
exercisable in whole or in part within the five-year period following the date
of grant. Such options are intended to be "incentive stock options" to the
extent they qualify as such under the provisions of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Plan, and shall
constitute "non-qualified stock options" issued pursuant to the Plan to the
extent they do not so qualify or a disqualifying event subsequently occurs.
7. RESTRICTIVE COVENANT AS TO TRANSFERABILITY OF ALL AMERICAN SHARES.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, if they have executed and delivered this Agreement on or prior to the
Opt-In Date, are hereby released from the restrictions set forth in Sections
5(a) and 5(b) of the Restrictive Covenant, provided that each such Target
Stockholder (▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
being counted as one Target Stockholder for these purposes) may not sell,
transfer or dispose of in open market sales more than 75,000 All American Shares
in any week or more than 25,000 All American Shares in any one day. The other
Target Stockholders shall retain the right, in accordance with the terms of
Section 5(a) of the Restrictive Covenant, to sell in the aggregate up to 50,000
All American Shares during any 14-day period and up to 10,000 All American
Shares in any one day.
8. EXTENSION OF EMPLOYMENT AGREEMENTS AND NONCOMPETITION COVENANTS.
Each of the following Target Stockholders hereby agrees that, at the election of
California Subsidiary or Colorado Subsidiary (as applicable), his or her
Employment Term under his or her Employment Agreement shall be extended for one
additional year beyond the Employment Term stated in such
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Employment Agreement: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. California Subsidiary or Colorado Subsidiary (as applicable)
shall be deemed to have elected to extend each such Employment Term for such one
additional year unless it gives notice to the Target Stockholder, at least 30
days prior to the expiration of the currently-stated Employment Term, that it
will NOT so extend such Employment Term. If the Employment Term is so extended,
during such additional one-year period Employer may terminate the employment of
such Target Stockholder without cause upon notice to such Target Stockholder,
without any obligation to pay salary or other compensation or provide any other
benefits beyond the date of employment termination. In consideration of the
agreement of such Target Stockholders to work an additional year if so elected
by Employer, but subject to the paragraphs below in this Section 8, the
"Covenant- Not-To-Compete" set forth in Section 2 of the Restrictive Covenant
(with respect to such Target Stockholders only), and the Covenant-Not-To-Compete
set forth in Section 11 of each Employment Agreement with each such Target
Stockholder, shall be amended and restated in their respective entireties as
follows:
(a) COVENANT-NOT-TO-COMPETE IN RESTRICTIVE COVENANT:
"2. COVENANT-NOT-TO-COMPETE. In view of (a) the
Confidential Information known to each Target Stockholder, (b)
the substantial consideration paid and payable to such Target
Stockholder under or pursuant to the Purchase Agreement, and
(c) the sale of the good will of the business embodied in the
Purchase Agreement, and as a material inducement to Purchaser
to consummate the Purchase Agreement, each Target Stockholder
covenants and agrees that such Target Stockholder shall not,
directly or indirectly, for and during the First Applicable
Period, (A) solicit the services of, or hire, directly or
indirectly, whether on his or her own behalf or on behalf of
others, any salesperson (whether an employee or independent
contractor of the Purchaser Group) or managerial or executive
employee of the Purchaser Group (or any of them) or who was
employed or engaged by the Purchaser Group (or any of them) at
any time during the period commencing December 1, 1996 and
ending five years following the date of Closing under the
Purchase Agreement, or (B) obtain any interest in, any
employment with, or any right or engagement to participate in,
passively or actively, any enterprise, company or business
which is either an authorized distributor of electronic
components or a turnkey or kitting business relating to
electronics manufacturing anywhere within the continental
United States (the "Geographical Territory"), or (C) in any
capacity, engage in any activity or business, passively or
actively, as an owner, participant, employee or agent,
competitive with the memory module and/or display technology
businesses of the Purchaser Group (or any of them) within the
Geographical Territory. The foregoing restrictions shall not
prevent a Target Stockholder from accepting employment with a
manufacturer's representative or a broker (a "broker" being
defined as a broker of electronic components that is not an
authorized broker or distributor for any manufacturer of
electronic components), provided that, in
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connection with any such employment, such Target Stockholder
does not participate, directly or indirectly, in the
solicitation or diversion of any Key Account. A "Key Account"
means any customer or former customer of California
Subsidiary, Colorado Subsidiary, Added Value or Rocky Mountain
which has accounted for sales of at least $50,000 in any
consecutive 12-month period within the three-year period
ending December 1, 1996. The foregoing restrictions shall also
not prevent a Target Stockholder from engaging in the
performance of turnkey or kitting services relating to
electronics manufacturing, provided that, in connection with
such activities, such Target Stockholder does not participate,
directly or indirectly, in the solicitation or diversion of
any of the following accounts of the Purchaser Group:
Cognitive Solutions; VL Labs; Spectrologic; IGT; or BI
Incorporated. Each Target Stockholder acknowledges that the
business of the Purchaser Group is national in scope, that one
can effectively compete with such business in the Geographical
Territory from anywhere within the Geographical Territory, and
that, therefore, such geographical area of restriction is
reasonable in the circumstances to protect the Purchaser
Group's legitimate business interests. For purposes hereof,
"Purchaser Group" means the All American Companies and all of
their respective subsidiaries, parents and other Affiliates,
whether now or hereafter existing, including Added Value and
Rocky Mountain, and all of such entities' respective
successors and assigns by merger, sale, spin-off or
otherwise."
(b) COVENANT-NOT-TO-COMPETE IN EMPLOYMENT AGREEMENTS:
"11. COVENANT-NOT-TO-COMPETE
In view of (a) the Confidential Information known to and
to be obtained by or disclosed to Employee (including, without
limitation, Employee's knowledge of, and familiarity and
relationships with, Employer's other employees and Employer's
customers and suppliers), (b) the know-how acquired and to be
acquired by Employee, (c) the substantial consideration paid
and payable to Employee under the Purchase Agreement, and to
Employee under this Employment Agreement, and (d) the sale of
the good will of the business embodied in the Purchase
Agreement, and as a material inducement to Employer to enter
into this Employment Agreement and to employ Employee and to
pay to Employee the substantial compensation Employee will be
receiving, Employee covenants and agrees that, for as long as
Employee is employed by Employer and for a period of two (2)
years after the later of (i) the date Employee ceases for any
reason to be employed by Employer and (ii) the date Employee
ceases to receive any Salary (as severance pay or otherwise)
from Employer, Employee shall not, directly or indirectly, (A)
solicit the services of, or hire, passively or actively,
whether on his own behalf or on behalf of others, any
salesperson (whether an employee or independent contractor of
the Purchaser Group) or managerial or executive employee of
the Purchaser Group (or any of them) or who
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was employed or engaged by the Purchaser Group (or any of
them) at any time during the period commencing December 1,
1996 and ending two years following the date of termination of
Employee's employment, or (B) obtain any interest in, any
employment with, or any right or engagement to participate in,
directly or indirectly, any enterprise, company or business
which is either an authorized distributor of electronic
components or a turnkey or kitting business relating to
electronics manufacturing anywhere within the continental
United States (the "Geographical Territory"), or (C) in any
capacity, engage in any activity or business, passively or
actively, as an owner, participant, employee or agent,
competitive with the memory module and/or display technology
businesses of the Purchaser Group in the Geographical
Territory. The foregoing restrictions shall not prevent
Employee from accepting employment with a manufacturer's
representative or a broker (a "broker" being defined as a
broker of electronic components that is not an authorized
broker or distributor for any manufacturer of electronic
components), provided that, in connection with any such
employment, Employee does not participate, directly or
indirectly, in the solicitation or diversion of any Key
Account. A "Key Account" means any customer or former customer
of California Subsidiary, Colorado Subsidiary, Added Value or
Rocky Mountain which has accounted for sales of at least
$50,000 in any consecutive 12-month period within the
three-year period ending December 1, 1996. The foregoing
restrictions shall also not prevent Employee from engaging in
the performance of turnkey or kitting services relating to
electronics manufacturing, provided that, in connection with
such activities, such Employee does not participate, directly
or indirectly, in the solicitation or diversion of any of the
following accounts of the Purchaser Group: Cognitive
Solutions; VL Labs; Spectrologic; IGT; or BI Incorporated.
Employee acknowledges that the business of the Purchaser Group
is national in scope, that one can effectively compete with
such business in the Geographical Territory from anywhere in
the Geographical Territory and that, therefore, such
geographical area of restriction is reasonable in the
circumstances to protect Employer's legitimate business
interests. The covenants and restrictions contained in this
Section 11 are intended to be separate and divisible from, and
operate concurrently with, the similar covenants and
restrictions contained in the Restrictive Covenant and are
each intended to be separately enforceable. Any differences
between the covenants and restrictions contained herein and
therein, such as with respect to time period restrictions, are
intentional. Nothing herein is intended to diminish, nor shall
diminish, Employee's obligation to devote Employee's full-time
working efforts to and for the benefit of Employer, and to
honor and discharge faithfully Employee's duty of loyalty to
Employer, while an employee of Employer. For purposes hereof,
"Purchaser Group" means the All American Companies and all of
their respective subsidiaries, parents and other Affiliates,
whether now or hereafter existing, including Added Value and
Rocky Mountain, and all of such entities' respective
successors and assigns by merger, sale, spin-off or
otherwise."
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Notwithstanding any of the foregoing set forth above in this Section 8
to the contrary, the foregoing amendments and restatements of the
covenants-not-to-compete of each Target Stockholder covered by this Section 8
shall not apply if such Target Stockholder resigns or if such Target
Stockholder's employment is terminated with Cause during the Employment Term
(including as extended, if such election is made by Employer), and, in such
event, the covenants-not-to-compete set forth in the original Restrictive
Covenant and applicable Employment Agreement shall continue to apply. If
Employer elects to extend the Employment Term of a Target Stockholder as
provided for above, and such Target Stockholder fulfills his or her employment
obligations for the additional year, the applicable time period restriction in
each of the Restrictive Covenant and the applicable Employment Agreement with
respect to that Target Stockholder shall be reduced by a period of one year. For
example, if ▇▇▇▇▇ ▇▇▇▇▇▇'▇ employment is so extended for one year and he
fulfills his employment obligations for such additional year, effective as of
the end of such additional year his First Applicable Period and Second
Applicable Period shall be reduced from 5 years to 4 years (i.e., each would
terminate December 31, 1999 rather than December 31, 2000), and his
covenant-not-to compete under his Employment Agreement would terminate one year
following cessation of his employment rather than two years following his
cessation of employment.
In order to facilitate the compliance by the Target Stockholders
affected by the amended and restated covenant not to compete provisions set
forth above, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇ shall be permitted to compile a
list of the Key Accounts and distribute a copy of such list to such other Target
Stockholders. Such list may not be used for any purpose other than verifying
compliance.
The foregoing amendment and restatement of Section 2 of the Restrictive
Covenant and Section 11 of the Employment Agreements shall be effective
immediately as to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (both of whom no longer
work for California Subsidiary), if, as to each, he has executed and delivered
this Agreement on or prior to the Opt-In Date.
9. RELEASES AND COVENANTS NOT TO ▇▇▇.
(a) For and in consideration of the agreements herein of the
Target Stockholders who have executed and delivered this Agreement on or prior
to the Opt-In Date (each, a "Target Stockholder Released Party") , and the
release given by each Target Stockholder Released Party as a Target Stockholder
Releasing Party below to the All American Group (as defined below), and other
valuable consideration received from or on behalf of each Target Stockholder
Released Party, the receipt of which is hereby acknowledged, each of the All
American Companies hereby remises, releases, acquits, satisfies, and forever
discharges each Target Stockholder Released Party of and from all, and all
manner of, action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, claims and demands whatsoever, at law or in equity, known
or unknown, asserted or unasserted, which any of the All American Companies ever
had, now has, or hereafter can, shall or may have, or which any
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representative, successor, predecessor, or assign of any of the All American
Companies ever had, now has, or hereafter can, shall or may have against such
Target Stockholder Released Party arising or resulting from any past breach by
such Target Stockholder Released Party of any of his or her representations,
warranties or covenants contained in the Purchase Agreement, past acts or
omissions of such Target Stockholder Released Party in connection with the
performance of his or her employment duties after closing of the Mergers, the
management, affairs, practices or operations of Added Value or Rocky Mountain
prior to the closing of the Mergers, or prior injurious or defamatory statements
made by any Target Stockholder Released Party prior to the date hereof. Each of
the All American Companies further covenants and agrees never to institute or
cause to be instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any Target
Stockholder Released Party arising from any of the foregoing claims or causes of
action which have been remised, released, acquitted, satisfied and forever
discharged.
(b) For and in consideration of the agreements of the All
American Companies set forth in this Agreement, and the release given by the All
American Companies above to each Target Stockholder Released Party (each, for
purposes of this subsection (b), a "Target Stockholder Releasing Party"), and
other valuable consideration received from or on behalf of the All American
Companies, the receipt of which is hereby acknowledged, each Target Stockholder
Releasing Party hereby remises, releases, acquits, satisfies, and forever
discharges each of the All American Companies, each subsidiary, parent and other
Affiliate of the All American Companies, and each successor, assign, officer,
director, employee and agent of each of the foregoing entities (collectively,
the "All American Group") of and from all, and all manner of, action and
actions, cause and causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, at law or in equity, known or
unknown, asserted or unasserted, which such Target Stockholder Releasing Party
ever had, now has, or hereafter can, shall or may have, or which any
representative, successor, predecessor, or assign of such Target Stockholder
Releasing Party ever had, now has, or hereafter can, shall or may have, against
the All American Group or any member thereof arising or resulting from any past
breach by the All American Group (or any member thereof) of any of their
respective representations, warranties or covenants contained in the Purchase
Agreement or past acts or omissions of the All American Group (or any member
thereof) in connection with the performance of their respective obligations
under the Employment Agreements (and, in this regard, this release covers and
releases any claims at law or in equity with respect to any Target Stockholder
Releasing Party's employment with California Subsidiary or Colorado Subsidiary
or any Affiliate thereof, including claims under any employment, discrimination,
health or safety laws), or which in any manner relate to the management,
affairs, practices or operations of any member of the All American Group or any
decision, act or omission of any kind taken or made by or on behalf of any
member of the All American Group, or any injurious or defamatory statements made
by any member of the All American Group. Each Target Stockholder Releasing Party
further covenants and agrees never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or proceeding of any
kind or nature whatsoever against the All American Group
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or any member thereof arising from any of the foregoing claims or causes of
action which have been remised, released, acquitted, satisfied and forever
discharged.
(c) It is the intention of the parties hereto in executing
this Agreement that this instrument shall be effective as a bar to each and
every claim, demand, or cause of action released hereby. Each party recognizes
that he or it may have some claim, demand, or cause of action against another
party of which he or it is totally unaware and unsuspecting, which he or it is
giving up by execution of this Agreement. It is the intention of the parties in
executing this instrument that it will deprive them of each such claim, demand
or cause of action. In furtherance of this intention, each party hereto
expressly waives any rights or benefits conferred by the provisions of Section
1542 of the Civil Code of the State of California, which provides 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."
10. NO INJURIOUS ACTS OR STATEMENTS. Each of the Target Stockholders
hereby agrees that he or she shall not, at any time hereafter, publish,
disseminate or make any critical, insulting, negative or disparaging remarks,
statements or materials (orally or in writing) concerning the All American Group
(or any member thereof) or their respective businesses, management, operations,
condition (financial or otherwise) or affairs. Without limitation of the
foregoing, no Target Stockholder shall (or shall attempt to) join or participate
in, instigate or cause to be brought or asserted against any member of the All
American Group any shareholder action, proxy fight, tender offer or other
device, action or proceeding designed to unseat or disrupt current management of
All American or its Affiliates or to effect a change of control of All American
or its Affiliates. Each of the All American Companies agrees that it shall not,
at any time hereafter, publish, disseminate or make any critical, insulting,
negative or disparaging remarks, statements or materials (orally or in writing)
concerning any of the Target Stockholders who have executed and delivered this
Agreement on or prior to the Opt-In Date. Nothing contained in this Section 10
shall be deemed to prevent, or shall prevent, any Target Stockholder from giving
truthful testimony under oath or complying with any applicable legal requirement
(but no such testimony shall be voluntarily offered unless required by law in
the opinion of counsel to the applicable party).
11. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SALARY. Effective October 1, 1996, the portion of
the first sentence of Section 5.A of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Employment Agreement
which follows the semi- colon is amended in its entirety to read as follows:
"the variable amount shall be an annual amount equal to 2% of the
aggregate gross profit (determined in accordance with GAAP) derived by
Employer and its Affiliates nationwide from the sale of memory modules,
MINUS the amount of commissions or compensation paid to manufacturer's
representatives and other third parties in connection with the sale of
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memory modules, MINUS the amount of any write-downs or write-offs of
inventory related to memory module business."
12. FURTHER ASSURANCES. Each party to this Agreement shall, at the
request of any other party to this Agreement, at its expense and without being
entitled to receive further consideration, execute and deliver all such
documents, and do all such acts and things, as may be reasonably required to
effectuate the terms and provisions of this Agreement.
13. MISCELLANEOUS PROVISIONS. The provisions of Sections 9.2, 9.3, 9.6,
9.7, 9.8, 9.9, 9.10, 9.11, 9.12, 9.14, 9.15 and 9.17 of the Purchase Agreement
shall apply to this Agreement; provided, however, that this Agreement is an
independent agreement, and no provisions of the Purchase Agreement shall be
deemed incorporated herein.
14. CONFIDENTIALITY. The parties shall keep the terms and conditions of
this Agreement confidential and shall not disclose same, except to former
stockholders of Added Value or Rocky Mountain who have not signed this Agreement
and except as otherwise required by law, and, in the case of disclosures by All
American, as may be required in the opinion of its counsel to comply with
disclosure and other requirements under applicable securities laws.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written, or on the date shown below,
whichever is later.
ALL AMERICAN SEMICONDUCTOR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ALL AMERICAN ADDED VALUE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
ALL AMERICAN A.V.E.D., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, individually and as sole ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
trustee of The ▇▇▇▇▇▇ Family Charitable Date: 12-19-96
Remainder Trust
Date: 12-17-96 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: 12-20-96
------------------------------------ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Date:__________ Date: 12-20-96
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Date: 12-17-96 Date: 12-20-96
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: 12-17-96 Date: 12-20-96
11
EXHIBIT "A"
TARGET STOCKHOLDERS
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12
