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
”).
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.
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.
(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.
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