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Search Employment Agreement by:
Exhibit 10.2
EMPLOYMENT AGREEMENT
This
Agreement is made as of the 1st day of December, 2005, between TTM
TECHNOLOGIES, INC., a Delaware corporation (the “Company”),
and KENTON K. ALDER (the “Executive”).
Preliminary Statements:
A. The
Executive serves as President and Chief Executive Officer of the Company.
B. The
Company wishes to continue to retain the services of the Executive as President
and Chief Executive Officer of the Company, on the terms and subject to the
conditions hereinafter set forth.
C. The
Executive is willing to make his services available to the Company, on the
terms and subject to the conditions hereinafter set forth.
Agreement:
NOW
THEREFORE, in consideration of (i) the Executive’s employment and
continued employment with the Company, (ii) the compensation paid to the
Executive and the benefits provided to the Executive in connection with such
employment, and (iii) the Executive’s use of the equipment,
supplies, facilities and other resources of the Company and its Subsidiaries
and Affiliates, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Interpretation
of this Agreement.
(a) Defined
Terms. As used herein, the following terms when used in this Agreement have
the meanings set forth below:
“Affiliate”
has the meaning set forth in Rule 12b-2 of the regulations promulgated
under the Securities Exchange Act of 1934, as amended.
“Base
Salary” shall have the meaning given to it under §2(b) below.
“Board”
means the Board of Directors of the Company.
“Cause”
means any of the following: (i) the indictment of the Executive or the
Executive’s conviction of, or entry of a plea of no contest with respect
to, any felony or any crime involving moral turpitude; (ii) the commission
by the Executive of any other material act of fraud or intentional dishonesty
with respect to the Company or any of its Subsidiaries or Affiliates;
(iii) a material breach by the Executive of his fiduciary duties to the
Company or any of its Subsidiaries. including the commission by the Executive
of an act of fraud or embezzlement against the Company or any of its
Subsidiaries or Affiliates; (iv) failure by the Executive to perform in a
material manner his properly assigned duties after at least one written warning
specifically advising him of such failure and providing him with l0 days
to resume performance in accordance with his assigned duties; (v) any
breach by the Executive of any of the material terms of (A) this Agreement
(including without limitation §§3, 4, 5, 6 or 7 hereof), or
(B) any other agreement between the Company and the Executive;
(vi) the association, directly or indirectly, of the Executive, for his
profit or financial benefit, with any person, firm, partnership, association,
entity or corporation that competes, in any material way, with the Company;
(vii) the disclosing or using of any material Company Information at any
time by the Executive; or (viii) any material breach of a Company policy.
Notwithstanding any provision of this Agreement which may be to the contrary,
(x) the Executive will not be deemed to have been terminated for Cause
unless and until there is delivered to him a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire membership of
the Board (excluding the
Executive if he is a member of the Board) at a meeting of the Board (after
reasonable notice to the Executive and an opportunity for the Executive to be
heard before the Board), finding that in the opinion of the Board the Executive
was guilty of conduct set forth above in the preceding sentence and specifying
the particulars thereof in reasonable detail and (y) if the Company so requests
in the notice referred to in the immediately preceding parenthetical phrase,
the Executive shall not enter upon the premises of the Company or any of its
Subsidiaries or Affiliates unless and until the Board shall have determined not
to terminate the Executive’s employment for Cause (and during such period
the Executive shall continue to be entitled to receive his compensation and
benefits hereunder).
“Change
in Control” means the consummation of any of the following
transactions:
(i)
a merger or consolidation in which the Company is not the surviving entity,
except for a transaction the principal purpose of which is to change the state
of the Company’s incorporation or a transaction in which 50% or more of
the surviving entity’s outstanding voting stock following the transaction
is held by holders who held 50% or more of the Company’s outstanding
voting stock prior to such transaction; or
(ii)
the sale, transfer or other disposition of all or substantially all of the
assets of the Company; or
(iii)
any reverse merger in which the Company is the surviving entity, but in which
50% or more of the Company’s outstanding voting stock is transferred to
holders different from those who held the stock immediately prior to such
merger; or
(iv)
the acquisition by any person (or entity), directly or indirectly, of 50% or
more of the combined voting power of the outstanding shares of Common Stock.
“Common
Stock” means the Company’s authorized common stock, no par
value.
“Company”
shall have the meaning given to it in the first sentence of this Agreement.
“Company
Information” means Confidential Information and Trade Secrets.
“Confidential
Information” means confidential data and confidential information
relating to the business of the Company or any of its Subsidiaries or
Affiliates (which does not rise to the status of a Trade Secret under
applicable law) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through his employment with the
Company and which has economic value, actual or potential, to the Company or
any of its Subsidiaries or Affiliates and is not generally known to the
competitors of the Company or any of its Subsidiaries or Affiliates.
Confidential Information does not include any data or information that
(i) is publicly disclosed by law or in response to an order of a court of
competent jurisdiction or governmental agency, (ii) becomes publicly
available through no fault of the Executive, (iii) becomes known to the
Executive from a source outside the scope of his employment with the Company
and its Subsidiaries not known to the Executive to be bound by a confidentiality
agreement with respect to such information or (iv) has been published in a
form generally available to the public prior to the date the Executive proposes
to disclose or use such information. Information will not be deemed to have
been published merely because individual portions of the information have been
separately published, but only if all material features comprising such
information have been published in combination.
“Disability”
means the Executive becomes incapacitated due to physical or mental illness
and, in the good faith determination of the Board, is unable to perform his
assigned duties and responsibilities and such condition continues, or, in the
opinion of a physician selected by the Board, is reasonably likely to continue,
for six consecutive months or for periods aggregating six months during any
twelve-month period.
“Employment
Period” shall have the meaning given to it in §2(a) below.
“Executive”
shall have the meaning given to it in the first sentence of this Agreement.
“Good
Reason” means, without the Executive’s express written consent,
(i) a materially adverse alteration in the nature or status of the
Executive’s responsibilities (excluding any isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
within 14 days of receipt of written notice thereof from the Executive),
(ii) a reduction by the Company in the Executive’s annual base
salary without the Executive’s consent, (iii) the failure by the
Company to continue to provide the Executive with benefits substantially
similar to those enjoyed by him under any of the Company’s retirement,
life insurance, medical, dental, accident or disability plans in which he is
participating as of the date of this Agreement (or, in the event of the
Executive’s resignation at any time following the occurrence of a Change
in Control, as of the time immediately preceding such Change in Control), or
the taking of any action by the Company which would directly or indirectly
materially reduce such benefits, taken as a whole or (iv) a breach by the
Company of any of the material terms of this Agreement (excluding any breach
that is remedied by the Company within 14 days of receipt of written
notice thereof from the Executive).
“Notice
of Termination” shall have the meaning given to it in §2(a)
below.
“Person”
means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department, agency
or political subdivision thereof).
“Severance
Period” means the period for which the Company is required to make
payments under §2(d) below.
“Subsidiary”
when used with respect to any Person means any other Person, whether
incorporated or unincorporated, of which (i) more than 50% of the
securities or other ownership interests or (ii) securities or other
interests having by their terms ordinary voting power to elect more than 50% of
the board of directors or others performing similar functions with respect to
such corporation or other organization, is directly owned or controlled by such
Person or by any one or more of its Subsidiaries.
“Termination
Date” shall have the meaning given to it in §2(a) below.
“Trade
Secrets” means information of the Company or any of its Subsidiaries
or Affiliates including, but not limited to, technical or nontechnical data,
formulas, patterns, compilations, programs, financial data, financial plans,
product or service plans or lists of actual or potential customers or suppliers
which (i) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
(b)
Interpretation. The words “herein,” “hereof,”
“hereunder” and other words of similar import refer to this
Agreement as a whole, as the same from time to time may be amended or
supplemented and not any particular section, paragraph, subparagraph or clause
contained in this Agreement. Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall include the singular
and the plural, and pronouns stated in masculine, feminine or neuter gender
shall include the masculine, feminine and the neuter.
2. Employment.
(a)
Duration. The Company agrees to employ the Executive and the Executive
accepts such employment for the period beginning on the date hereof and ending
on the third anniversary of the date hereof, unless sooner terminated as
hereinafter set forth; provided, however, that the term of
this Agreement automatically
shall be renewed for one additional year effective as of each anniversary of
the date hereof beginning with the third anniversary, unless either the Company
or the Executive provides written notice to the other that the term of this
Agreement shall terminate on the upcoming anniversary of the date hereof, provided
such notice is received by the receiving party not less than ninety
(90) days prior to the intended date of termination and provided
further that the Company shall not be entitled to deliver to the Executive
such notice within sixty (60) days prior to a Change in Control. If this
Agreement is terminated prior to the third anniversary of the date hereof (or
any automatic renewal period), the Executive’s employment shall end on
(i) the date specified in a Notice of Termination given by the Executive in
connection with his resignation (which, (A) in the case of resignation for
Good Reason shall be not less than 30 days from the date such Notice of
Termination is given and (B) in the case of resignation for any other
reason, shall not be less than 90 days from the date such Notice of
Termination is given), (iii) the date on which the Executive’s employment
is terminated for Cause, (iv) the date specified in a Notice of
Termination given by the Company at any time stating that the Board has
determined that the Executive shall be terminated without Cause (termination
pursuant to this clause (iv) is sometimes referred to in this Agreement as
“termination without Cause”), (v) the date of the
Executive’s death, or (vi) the date specified in a Notice of
Termination given by the Company in connection with a termination of the
Executive’s employment by reason of his Disability; For purposes of this
Agreement, the term “Employment Period” shall mean such
period of employment and the term “Termination Date” shall
mean the date on which the Executive’s employment with the Company is
terminated for any reason. Subject to the last sentence contained in the
definition of “Cause,” above, any purported termination of the
Executive’s employment by the Company or by the Executive shall be
communicated by written Notice of Termination to the other party hereto in
accordance with §8 below, which notice shall indicate the specific
termination provision in this §2(a) relied upon (and, in the case of the
Executive’s resignation for Good Reason, shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of the Executive’s employment for Good Reason) (a “Notice of
Termination”).
(b)
Salary and Benefits. During the Employment Period, in consideration for
the Executive agreeing to devote his full business time and attention to the
affairs of the Company, the Company will pay the Executive a base salary at the
rate of $350,000 per annum or at such higher rate as the Board designates in
its sole discretion from time to time (“Base Salary”),
payable in installments consistent with the Company’s normal payroll
schedule, subject to applicable withholding and other taxes. In addition to the
Base Salary payable to Executive pursuant to this §2(b), the Executive
will be entitled to the following benefits during the Employment Period:
(i)
the Executive will be entitled to participate in all medical and
hospitalization, group life insurance, and any and all other fringe benefit
plans as are from time to time provided by the Company to its executives;
(ii)
the Executive will be entitled to a maximum of four weeks paid vacation each
year (paid an Executive’s base salary), accrued up to a maximum cap of
320 hours, after which Executive shall not accrue any additional vacation until
Executive takes vacation; provided, however, that in no event may a
vacation be taken at a time when to do so could, in the reasonable judgment of
the Chairman of the Board, adversely affect the business of the Company and its
Subsidiaries; and
(iii)
the Executive will be entitled to reimbursement for reasonable business
expenses (excluding commuting expenses) incurred by the Executive (subject to
submission of appropriate substantiation by the Executive).
The Executive’s accrual
of or participation in plans providing for benefits will cease on the
Termination Date, and the Executive will be entitled to accrued benefits
pursuant to such plans only as provided in such plans or as required by law; provided,
however, that the Executive will receive, in addition to his severance pay
pursuant to §2(d) below, the amount of any accrued benefits in respect of
vacation, holiday, sick leave, or other leave unused as of the Termination
Date.
(c) Services. During the Employment Period, the Executive will serve as the President and Chief Executive Officer of the Company and shall have the normal duties, responsibilities and authority of such office, subject to the power of the Chairman of the Board to reasonably expand or reasonably limit such d






