EX-10.9
Published on March 24, 2010
Exhibit 10.9
RESTATED EMPLOYMENT AGREEMENT
This Restated Employment Agreement (Agreement) is made as of the 22nd day
of March, 2010, 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.
D. The parties desire to amend and restate that certain Employment Agreement, dated as of
December 31, 2005, between the Company and the Executive (the Existing Agreement).
Agreement:
NOW THEREFORE, in consideration of (i) the Executives 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 Executives 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 that the Existing Agreement is hereby amended and restated
in its entirety to read 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 charging or indictment of the Executive or
the Executives 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 Executives 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 Companys
incorporation or a transaction in which 50% or more of the surviving entitys outstanding
voting stock following the transaction is held by holders who held 50% or more of the
Companys 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 Companys 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 Companys authorized common stock, $.001 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
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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 Executives express written consent, (i) a materially
adverse alteration in the nature or status of the Executives 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 Executives annual base salary without the Executives 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 Companys 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 Executives 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).
Restricted Stock means Common Stock issued by the Company with vesting restrictions
and subject to an award agreement pursuant to a stock plan of the Company.
RSUs mean restricted stock units granted by the Company pursuant to which the
Company has agreed to issue Common Stock upon the satisfaction of vesting and/or other conditions,
which RSUs are subject to an award agreement pursuant to a stock plan of the Company.
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.
Target Bonus means an amount equal to the annual bonus that the Executive would have
been eligible to receive for the Companys fiscal year in which the Executives employment
terminates, assuming the achievement of 100% of the performance target level(s) associated with
such bonus.
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
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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 Executives 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 Executives 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 Executives death, or (vi) the date specified in a Notice of Termination given by the Company
in connection with a termination of the Executives 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 Executives
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 Executives 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 Executives resignation for Good
Reason, shall set forth in reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executives 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 $605,000 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 Companys 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 Executives base salary), accrued up to a maximum cap of 320 hours, after
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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 Executives 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 duties, responsibilities and authority and to override actions of the
Executive. The Executive shall serve on the Board for so long as the Executive is President and
Chief Executive Officer of the Company. The Executive will devote his best efforts and
substantially all of his business time and attention (except for vacation periods and reasonable
periods of illness or other incapacity) to the business of the Company and its Subsidiaries, and
shall perform the duties and carry out the responsibilities assigned to him, to the best of his
ability, in a diligent, trustworthy, businesslike and efficient manner for the purpose of advancing
the business of the Company and its Subsidiaries. The Executive shall use his best efforts to
comply with all material applicable laws, rules and regulations relating to the conduct and
operation of the business of the Company and its Subsidiaries and will comply with all material
policies and procedures adopted by the Board, as in effect from time to time, to govern the
operations of the Company and its Subsidiaries.
(d) Severance Pay.
(i) In the event that the Executives employment is terminated (A) by the Company
without Cause at any time other than in connection with a Change in Control as described in
§2(d)(ii), or (B) by the Executive for Good Reason at any time other than in connection with
a Change in Control as described in §2(d)(ii), the Company shall pay to the Executive, as
severance pay, within 15 calendar days after the period for revocation of the release
referenced in §2(d)(iv) below has lapsed, the lump sum amount in cash equal to two times the
sum of (1) the Executives Base Salary, plus (2) the Executives Target Bonus.
(ii) In the event that the Executives employment is terminated (A) by the Company
without Cause within 60 days prior to, or within one year after, the occurrence of a Change
in Control, or (B) by the Executive for Good Reason within 60 days prior to, or within one
year after, the occurrence of a Change in Control, the Company shall pay to the Executive,
as severance pay, within 15 calendar days after the period for revocation of the release
referenced in §2(d)(iv) below has lapsed, the lump sum amount in cash equal to three times
the sum of (1) the Executives Base Salary, plus (2) the Executives Target Bonus.
(iii) In the event that the Executives employment is terminated as described in
§2(d)(ii), if any Company stock options held by the Executive are assumed by the surviving
entity in connection with such Change in Control, the vesting of any and all such assumed
options held by the Executive shall be accelerated so that all unexpired options then held
by the Executive shall be fully vested and exercisable immediately upon such termination.
(a) In the event that the Executives employment is terminated as described in
§2(d)(ii), if any Restricted Stock or RSUs held by the Executive are assumed by the
surviving
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entity in connection with a Change in Control, vesting of any and all assumed
Restricted Stock and RSUs held by the Executive shall be accelerated so that all Restricted
Stock and RSUs then held by the Executive shall be fully vested and exercisable immediately
upon the such termination.
(iv) In no event shall termination of the Executives employment for any other reason
(including upon or following the expiration of this Agreement on the third anniversary
hereof or any extension date) entitle the Executive to severance pay or benefits from the
Company or any of its Subsidiaries or Affiliates.
(iv) The Executives right to receive, and the Companys obligation to pay and provide,
any of the payments and benefits provided for in this §2(d) shall be subject to (A) the
Executives compliance with, and observance of, all of the Executives obligations under
this Agreement that continue beyond the Termination Date and (B) the Executives execution,
delivery and non-revocation of, and performance under, a release in favor of the Company and
its Affiliates and Subsidiaries in the form attached hereto as Exhibit A (as such
form may be modified by the Company so as to comply with all applicable laws as then in
effect) within thirty (30) days of the Termination Date.
(e) Incentive Compensation. During the Employment Period, the Executive shall be
entitled to receive incentive compensation with respect to each fiscal year of the Company pursuant
to the terms of the Companys annual incentive compensation plan, as approved, in good faith, by
the Board.
3. Nondisclosure. During the Employment Period and during the periods described in
the last sentence of this §3, the Executive (a) will receive and hold all Company Information in
trust and in strictest confidence, (b) will use commercially reasonable efforts to protect the
Company Information from disclosure, and (c) except as required by the Executives duties in the
course of his employment by the Company, will not, directly or indirectly, use, disseminate or
otherwise disclose any Company Information to any third party without the prior written consent of
the Company, which may be withheld in the Companys absolute discretion. The provisions of this §3
shall survive the termination of the Executives employment with respect to Confidential
Information, for so long as any such information remains confidential through no breach of these
obligations by Executive or until it becomes known by the general public, and with respect to Trade
Secrets, for so long as any such information qualifies as a Trade Secret under applicable law.
4. Books and Records. All books, records, reports, writings, notes, notebooks,
computer programs, sketches, drawings, blueprints, prototypes, formulas, photographs, negatives,
models, equipment, chemicals, reproductions, proposals, flow sheets, supply contracts, customer
lists and other documents and/or things relating in any manner to the business of the Company
(including but not limited to any of the same embodying or relating to any Company Information),
whether prepared by the Executive or otherwise coming into the Executives possession, shall be the
exclusive property of the Company and shall not be copied, duplicated, replicated, transformed,
modified or removed from the premises of the Company except pursuant to the business of the Company
and its Subsidiaries and shall be returned immediately to the Company on termination of the
Executives employment hereunder or on the Companys request at any time.
5. Inventions and Patents. Subject to California Labor Code Section 2870, et
seq., the Executive agrees that all inventions, innovations or improvements in the Companys (or
any of its Subsidiaries) method of conducting its business (including new contributions,
improvements, ideas and discoveries, whether patentable or not) conceived or made by him during his
employment with the Company, solely or jointly with others belong to the Company, provided that
this section shall not apply to an invention that the Executive developed entirely on his own time
without using the Companys equipment, supplies, facilities, or trade secret information,
except for those inventions that either: (i) relate at the time of conception or
reduction to practice of the invention to the Companys business, or actual or demonstrably
anticipated research or development of the Company; or (ii) result from any work performed
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by the Executive for the Company. Further, the Executive will promptly disclose such
inventions, innovations or improvements (whether made solely by Executive or jointly with others
during the term of his employment) to the Board and shall perform all actions reasonably requested
by the Board to establish and confirm the Companys ownership of said inventions, innovations or
improvements, including, but not limited to the execution of assignments and/or patent
applications.
6. Other Businesses. During the Employment Period, the Executive shall not, except
with the express consent of the Board (which may be withheld in the Boards absolute discretion),
become engaged in, render services for, or permit his name to be used in connection with, any
business other than the business of the Company and its Subsidiaries and Affiliates nor shall the
Executive serve on the board of directors of any other business, trade association, organization or
entity (whether public or private).
7. Non-Competition; Nonsolicitation and Noninterference.
(a) Non-Competition. The Executive acknowledges that there is a worldwide market for
the products of the Company and its Subsidiaries, that the Company and its Subsidiaries engage in
one or more facets of their respective businesses throughout the world, and that the Company and
its Subsidiaries compete with other Persons in the business of the Company and its Subsidiaries
located in jurisdictions throughout the world, including, without limitation, the territorial
United States. During the Employment Period and for a period of 12 months thereafter or the
Severance Period, whichever is longer, the Executive agrees that he will not, directly or
indirectly, engage in or have any interest in any sole proprietorship, partnership, corporation,
limited liability company or business or any other Person (other than the Company and its
Subsidiaries), whether as an employee, officer, director, partner, agent, security holder,
consultant or otherwise, that directly or indirectly is engaged in any business in which the
Company or any of its Subsidiaries is then engaged, in the territorial United States; provided,
however, that (i) the provisions of this §7(a) shall not apply in the event that the Employment
Period is terminated by reason of the expiration of this Agreement on the third anniversary hereof
or any extension date agreed to by the Executive and the Company, and (ii) nothing herein shall be
deemed to prevent the Executive from acquiring through market purchases and owning, solely as an
investment, less than one percent in the aggregate of the equity securities of any class of any
issuer whose shares are registered under Section 12(b) or 12(g) of the Securities Exchange Act, and
are listed or admitted for trading on any United States national securities exchange or are quoted
on the National Association of Securities Dealers Automated Quotations System, or any similar
system of automated dissemination of quotations of securities prices in common use, so long as he
is not a member of any control group (within the meaning of the rules and regulations of the
United States Securities and Exchange Commission).
(b) Nonsolicitation. During the Employment Period and for a period of 12 months
thereafter or the Severance Period, whichever is longer, the Executive will not, directly or
indirectly, (i) solicit for employment or employ or engage as an agent or independent contractor
(or attempt to solicit for employment or employ or engage as an agent or independent contractor),
for himself or on behalf of any Person (other than the Company or any of its Subsidiaries), any
employee, agent or independent contractor of the Company or any of its Subsidiaries or any Person
who was an employee, agent or independent contractor of the Company or any of its Subsidiaries at
any time during the one-year period preceding the later of (A) the date of this Agreement and (B)
the date of such solicitation, employment, engagement or attempted solicitation, employment or
engagement, (ii) encourage any such employee to leave his or her employment with the Company or any
of its Subsidiaries or (iii) encourage any such agent or independent contractor to terminate his,
her or its engagement with the Company or any of its Subsidiaries.
(c) Noninterference. During the Employment Period and for a period of 12 months
thereafter or the Severance Period, whichever is longer, the Executive will not induce or attempt
to induce any customer, licensee, licensor or other business relation of the Company or any of its
Subsidiaries or Affiliates to cease doing business with them, or in any way interfere with the
relationship between such customer, licensee, licensor or other business relation of the Company or
any of its Subsidiaries or Affiliates.
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(d) Reasonableness. The Executive acknowledges and agrees that the covenants provided
for in this §7 are reasonable and necessary in terms of time, area and line of business to protect
the legitimate business interests of the Company and its Subsidiaries, which include their
respective interests in protecting their (i) valuable confidential business information, (ii)
substantial relationships with customers throughout such geographical area and (iii) customer
goodwill associated with their ongoing business. To the extent that any of the covenants provided
for in this §7 may later be deemed by a court to be too broad to be enforced with respect to its
duration or with respect to any particular activity or geographic area, the court making such
determination shall have the power to reduce the duration or scope of the provision, and to add or
delete specific words or phrases to or from the provision. The provision as modified shall then be
enforced. Further, to the extent a court issues an injunctive relief under this Section 9 of the
Agreement, the covenant shall be extended by the period of time from the date of the violation of
the covenants herein until the issuance of the injunctive relief.
8. Notices. All notices, requests, demands, claims and other communications hereunder
will be in writing. Any notice, request, demand, claim or other communication hereunder shall be
deemed duly given if (and then five business days after) it is sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set
forth below:
If to the Executive:
Kenton K. Alder
3080 North 1400 East
North Logan, UT 84341
Fax: (435) 752-2260
3080 North 1400 East
North Logan, UT 84341
Fax: (435) 752-2260
If to the Company:
TTM Technologies, Inc.
2630 South Harbor Boulevard
Santa Ana, CA 92704
Attention: Chief Financial Officer
Tel: (714) 327-3000
Fax: (714) 241-1668
2630 South Harbor Boulevard
Santa Ana, CA 92704
Attention: Chief Financial Officer
Tel: (714) 327-3000
Fax: (714) 241-1668
With copies to:
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700
Phoenix, AZ 85016
Attention: Bruce E. Macdonough
Tel: (602) 445-8305
Fax: (602) 445-8618
email: macdonoughb@gtlaw.com
2375 E. Camelback Road, Suite 700
Phoenix, AZ 85016
Attention: Bruce E. Macdonough
Tel: (602) 445-8305
Fax: (602) 445-8618
email: macdonoughb@gtlaw.com
Either party hereto may send any notice, request, demand, claim or other communication hereunder to
the intended recipient at the address set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Either party hereto may
change the address to which notices, requests, demands, claims and other communications hereunder
are to be delivered by giving the other party notice in the manner herein set forth.
9. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is
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held to be invalid, illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other
provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained
herein.
10. Complete Agreement. This Agreement, those documents expressly referred to herein
and other documents of even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or representations by or
among the parties, written or oral, which may have related to the subject matter hereof in any way.
11. Counterparts. This Agreement may be executed on separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement. Any telecopied signature shall be deemed a manually executed and delivered original.
12. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the Executive and the Company and their respective successors and
assigns (and, in the case of the Executive, heirs and personal representatives), except that
Executive may not assign any of his rights or delegate any of his obligations hereunder.
13. Damages. Nothing contained herein shall be construed to prevent either party
hereto from seeking and recovering from the other damages sustained by either or both of them as a
result of its or his breach of any term or provision of this Agreement. In the event that either
party hereto brings suit for the collection of any damages resulting from, or for the injunction of
any action constituting, a breach of any of the terms or provisions of this Agreement, then the
party found to be at fault shall pay all reasonable costs, fees (including reasonable attorneys
fees) and expenses of the other party.
14. Equitable Remedies. The Executive acknowledges and agrees that the Company would
not have an adequate remedy at law in the event any of the provisions of §§3, 4, 5, 6 and 7 of this
Agreement are not performed in accordance with their specific terms or are breached. Accordingly,
the Executive agrees that the Company shall be entitled to an injunction or injunctions to prevent
breaches of §§3, 4, 5, 6 and 7 of this Agreement and to enforce specifically the terms and
provisions thereof in any action instituted in any court of competent jurisdiction, in addition to
any other remedies that may be available to it.
15. Choice of Law. This Agreement shall be governed and construed in accordance with
the laws of the State of California without regard to conflicts of laws principles thereof and all
questions concerning the validity and construction hereof shall be determined in accordance with
the laws of said state. By execution and delivery of this Agreement, each party irrevocably
submits to the personal and non-exclusive jurisdiction of any federal or state court of competent
jurisdiction located in the City of Santa Ana, Orange County, State of California, for himself or
itself to enforce this Agreement. Each party agrees that venue would be proper in any of such
courts, and hereby waives any objection that any such court is an improper or inconvenient forum
for the resolution of any such action. The parties further agree that the mailing by certified or
registered mail, return receipt requested, to the addresses specified for notice in this Agreement,
of any process or summons required by any such court shall constitute valid and lawful service of
process against them, without the necessity for service by any other means provided by statute or
rule of court. Notwithstanding the foregoing, the request by the Company for preliminary or
permanent injunctive relief, whether prohibitive or mandatory, may be adjudicated in any
jurisdiction where the Executive is subject to personal jurisdiction and where venue is proper.
16. Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE
RELATIONSHIP ESTABLISHED HEREUNDER.
17. Amendments and Waivers. No provision of this Agreement may be amended or waived
without the prior written consent of the parties hereto.
9
18. Business Days. Whenever the terms of this Agreement call for the performance of a
specific act on a specified date, which date falls on a Saturday, Sunday or legal holiday, the date
for the performance of such act shall be postponed to the next succeeding regular business day
following such Saturday, Sunday or legal holiday.
19. No Third Party Beneficiary. Except for the parties to this Agreement and their
respective successors and assigns, nothing expressed or implied in this Agreement is intended, or
will be construed, to confer upon or give any person other than the parties hereto and their
respective successors and assigns any rights or remedies under or by reason of this Agreement.
20. Survival. Sections 3, 4 and 5, 7 through 19 (inclusive), this §20 and §21 shall
survive and continue in full force and in accordance with their terms notwithstanding any
termination of the Employment Period.
21. Dispute Resolution. If the parties should have a material dispute arising out of
or relating to this Agreement or the parties respective rights and duties hereunder, then the
parties will resolve such dispute in the following manner: (a) either party may at any time deliver
to the other a written dispute notice setting forth a brief description of the issue for which such
notice initiates the dispute resolution mechanism contemplated by this §21, (b) during the 30 day
period following the delivery of the notice described in clause (a) above, appropriate
representatives of the various parties will meet and seek to resolve the disputed issue through
negotiation, (c) if representatives of the parties are unable to resolve the disputed issue through
negotiation, then within 10 days after the period described in clause (b) above, the parties will
refer the issue (to the exclusion of a court of law) to final and binding arbitration in Santa Ana,
California in accordance with the then existing rules (the Rules) of the American
Arbitration Association (AAA), and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof; provided, however, that the law applicable
to any controversy shall be the law of the State of California, regardless of principles of
conflicts of laws. In any arbitration pursuant to this Agreement, (x) discovery shall be allowed
and governed by the California Code of Civil Procedure and (y) the award or decision shall be
rendered by a majority of the members of a Board of Arbitration consisting of three members, one of
whom shall be appointed by the Executive, one of whom shall be appointed by the Company and the
third of whom shall be the chairman of the panel and be appointed by mutual agreement of said two
party-appointed arbitrators. In the event of failure of said two arbitrators to agree within 30
days after the commencement of the arbitration proceeding upon the appointment of the third
arbitrator, the third arbitrator shall be appointed by the AAA in accordance with the Rules. In
the event that either party shall fail to appoint an arbitrator within 10 days after the
commencement of the arbitration proceedings, such arbitrator and the third arbitrator shall be
appointed by the AAA in accordance with the Rules. Nothing set forth above shall be interpreted to
prevent the parties from agreeing in writing to submit any dispute to a single arbitrator in lieu
of a three member Board of Arbitration. Upon the completion of the selection of the Board of
Arbitration (or if the parties agree otherwise in writing, a single arbitrator), an award or
decision shall be rendered within no more than 30 days. Notwithstanding the foregoing, the request
by either party for preliminary or permanent injunctive relief, whether prohibitive or mandatory,
shall not be subject to arbitration and may be adjudicated only by the courts permitted under §15
above.
22. Other Terms Relating to Section 409A.
(a) Except as provided in §22(b), amounts payable under this Agreement following Executives
termination of employment, other than those expressly payable on a deferred or installment basis or
as reimbursement of expenses, will be paid as promptly as practicable after such a termination of
employment and, in any event, within 2 1/2 months after the end of the year in which employment
terminates and amounts payable as reimbursements of expenses to the Executive must be made on or
before the last day of the calendar year following the calendar year in which such expense was
incurred.
(b) Anything in this Agreement to the contrary notwithstanding, if (i) on the date of
termination of Executives employment with the Company or a subsidiary, any of the Companys stock
is publicly traded on an established securities market or otherwise (within the meaning of Section
10
409A(a)(2)(B)(i) of the Internal Revenue Code, as amended (the Code)), (ii) if Executive is
determined to be a specified employee within the meaning of Section 409A(a)(2)(B) of the Code,
(iii) the payments exceed the amounts permitted to be paid pursuant to Treasury Regulations section
1.409A-1(b)(9)(iii) and (iv) such delay is required to avoid the imposition of the tax set forth in
Section 409A(a)(1) of the Code, as a result of such termination, the Executive would receive any
payment that, absent the application of this Section 9(b), would be subject to interest and
additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of
Section 409A(2)(B)(i) of the Code, then no such payment shall be payable prior to the date that is
the earliest of (A) six months after the Executives termination date, (B) the Executives death or
(C) such other date as will cause such payment not to be subject to such interest and additional
tax (with a catch-up payment equal to the sum of all amounts that have been delayed to be made as
of the date of the initial payment).
(c) It is the intention of the parties that payments or benefits payable under this Agreement
not be subject to the additional tax imposed pursuant to Section 409A of the Code. To the extent
such potential payments or benefits could become subject to such Section, the parties shall
cooperate to amend this Agreement with the goal of giving the Executive the economic benefits
described herein in a manner that does not result in such tax being imposed.
(d) A termination of employment under this Agreement shall be deemed to occur only in
circumstances that would constitute a separation from service for purposes of Treasury Regulations
section 1.409A-1(h)(1)(ii).
(e) Wherever payments under this Agreement are to be made in installments, each such
installment shall be deemed to be a separate payment for purposes of Section 409A.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year above
written.
TTM TECHNOLOGIES, INC. |
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By: | ||||
Robert E. Klatell, Chairman of the Board | ||||
KENTON K. ALDER | ||||
12
EXHIBIT A
FORM OF RELEASE
FORM OF RELEASE
[DATE]
Kenton K. Alder
[ADDRESS]
[CITY], [STATE] [ZIP]
Kenton K. Alder
[ADDRESS]
[CITY], [STATE] [ZIP]
Dear Mr. Alder:
Reference is made to the Restated Employment Agreement between the Company and you dated as of
March ___, 2010. This letter serves to document our mutual understanding regarding the terms of
your severance payments, and a full release of any and all actual or potential claims relating to
periods prior to the date that this letter becomes effective.
Provided that you execute this letter (including attachments A&B) prior to the expiration of
twenty-two (22) days after the date hereof and you do not subsequently revoke this letter in
accordance with the provisions on revocation set forth on Attachment B hereto, we shall, as
severance pay, pay you the lump sum amount of $___, subject to applicable withholdings, with no
further benefit accrual. As provided in the Employment Agreement, our obligation to pay you such
severance is subject to your continued compliance with, and observance of, all of your obligations
under the Employment Agreement which continue beyond the date on which your employment with the
Company terminated.
We look forward to working with you on a smooth transition of your responsibilities to others.
We all appreciate your past efforts on behalf of the Company and will be happy to help you
implement your future plans.
Please understand that Execution of the letter and its attachments and compliance with the
letter and its attachments shall not be considered as an admission by you or the Company of any
liability whatsoever; or as an admission by the Company of any violation of your rights or of any
other person or of any order, law, statute, or duty; or as an admission by you of any violation of
rights of the Company or of any other person or of any order, law, statute or duty.
As a condition precedent to the receipt of consideration under the letter and its attachments,
you are required to return all items of Company property that you have in my possession or over
which you have control, including, but not limited to, any equipment belonging to the Company, all
code and computer programs, and information of whatever nature, as well as any other materials,
keys, pass codes, access cards, credit cards, computers, cellular telephones, facsimile machines,
copiers, phones, documents or information, including, but not limited to, trade Secrets or
Confidential Information in your possession or control. Further, you shall not retain copies
thereof, including electronic copies and represent that you have not destroyed information or
documents belonging to the Company, except for documents routinely deleted, copies of which have
already been provided to the Company.
You are to maintain the terms of the letter and its attachments as confidential and neither
you, nor any person or entity acting on your behalf, shall disclose any such terms of the letter
and its attachments to any third party, without the written consent of Employer, unless and only to
the extent that (a) such disclosure is required by law, or (b) such terms become generally
available to the public without any breach of the letter and its attachments by you: provided,
however, that you may disclose the terms of the letter and its attachments to your legal, business
and financial advisors, but not only to the extent such disclosure is necessary for such persons to
render professional services in connection therewith, and provided that prior to disclosure to any
such persons, such persons shall be furnished a copy of this Section of this Attachment A and shall
agree to be bound hereby for the benefit of the Company.
Very Truly Yours,
Agreed and accepted:
KENTON K. ALDER | TTM TECHNOLOGIES, INC. | |||||||||
Date:
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By: | |||||||||
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Title: | ||||||||||
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Date: | ||||||||||
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Exhibit A-2
ATTACHMENT A: RELEASE AND COVENANT NOT TO SUE
1. Release. I, Kenton K. Alder, do hereby release and discharge TTM Technologies, Inc.,
its affiliates and subsidiaries, and each of their stockholders, officers, directors, members,
managers, partners, employees, representatives, agents and affiliates (collectively, the Employer
Affiliates, and each an Employer Affiliate) from any and all claims, demands or liabilities
whatsoever, whether known or unknown or suspected to exist by me, which I ever had or may now have
against any Employer Affiliate, from the beginning of time to the Effective Date of the letter
(including its attachments), including, without limitation, any claims, demands or liabilities in
connection with my employment, including wrongful termination, constructive discharge, breach of
express or implied contract, unpaid wages, benefits, attorneys fees or pursuant to any federal,
state, or local employment laws, regulations, or executive orders prohibiting inter alia, age,
race, color, sex, national origin, religion, handicap, veteran status, and disability
discrimination, including, without limitation, the Age Discrimination in Employment Act, Title VII
of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, the Civil Rights Act
of 1866, the Employee Retirement Income Security Act of 1974, the California Fair Employment and
Housing Act, the Prudence Kay Poppink Act, the California Family Rights Act, the Fair Labor
Standards Act, any state statute relating to employee benefits or pensions, and the Americans with
Disabilities Act of 1990. This Release does not waive rights or claims that may arise after the
Effective Date. I fully understand that if any fact with respect to which this Release is executed
is found hereafter to be other than or different from the facts in that connection believed by me
to be true, I expressly accept and assume the risk of such possible difference in fact and agree
that the release set forth herein shall be and remain effective notwithstanding such difference in
fact. I acknowledge and agree that no consideration other than as provided for by the letter to
which this release is an attachment has been or will be paid or furnished by any Employer
Affiliate.
2. Covenant Not to Sue. I covenant and agree never, individually or with any person or in
any way, to commence, aid in any way, prosecute or cause or permit to be commenced or prosecuted
against any Employer Affiliate any action or other proceeding, including, without limitation, an
arbitration or other alternative dispute resolution procedure, based upon any claim, demand, cause
of action, obligation, damage, or liability that is the subject of this letter (including its
attachments). I represent and agree that I have not and will not make or file or cause to be made
or filed any claim, charge, allegation, or complaint, whether formal, informal, or anonymous, with
any governmental agency, department or division, whether federal, state or local, relating to any
Employer Affiliate in any manner, including without limitation, any Employer Affiliates business
or employment practices. I waive any right to monetary recovery should any administrative or
governmental agency or entity pursue any claim on my behalf.
3. Waiver. I acknowledge that California Civil Code § 1542 states:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. |
Notwithstanding California Civil Code § 1542, I enter into this full waiver and release as set
forth above and waive all rights or defenses under § 1542 of the California Civil Code.
4. Indemnification. I agree to indemnify and hold each Employer Affiliate harmless from
and against any and all claims, including each Employer Affiliates court costs and attorneys
fees, arising from or in connection with any claim, action, or other proceeding made, brought, or
prosecuted, or caused or permitted to be commenced or prosecuted, by me, my successor(s), or
assign(s) contrary to the provisions of the letter (including its attachments). It is further
agreed that the letter (including its attachments) shall be deemed breached and a cause of action
accrued thereon immediately upon the commencement of any action contrary to the letter (including
the attachments), and in any such action the letter (including its attachments) may be pleaded by
the Employer Affiliates, or any of them, both as a defense and as a counterclaim or cross-claim in
such action.
Exhibit A-3
5. Important General Provisions. If any provisions of the letter (including its
attachments) is held to be invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the validity and enforceability of the other
provisions thereof, and the provision held to be invalid or unenforceable shall be enforced as
nearly as possible according to its original terms and intent to eliminate such invalidity or
unenforceability. The provisions hereof shall be governed by, and construed and enforced in
accordance with, the laws of the State of California, both substantive and remedial. The
undersigned hereby waives trial by jury in any judicial proceeding involving, directly or
indirectly, any matter (whether in tort, contract or otherwise) in any way arising out of, related
to, or connected hereto or the relationship established under the letter (including its
attachments).
5. Right to Consult Attorney. I ACKNOWLEDGE THAT I HAVE BEEN ADVISED, IN WRITING, TO
CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THE LETTER (INCLUDING ITS ATTACHMENTS).
Kenton K. Alder | ||||
Date: |
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Exhibit A-4
ATTACHMENT B:
WAIVER OF CLAIMS UNDER OLDER WORKERS BENEFIT PROTECTION ACT
WAIVER OF CLAIMS UNDER OLDER WORKERS BENEFIT PROTECTION ACT
PURSUANT TO THE OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA), WHICH APPLIES TO THE WAIVER OF RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE UNDERSIGNED STATES THAT HE HAS HAD A PERIOD OF
21 CALENDAR DAYS FROM THE DATE HE WAS PRESENTED WITH THE LETTER (INCLUDING ITS ATTACHMENTS)
([INSERT DATE]) WITHIN WHICH TO CONSIDER THE LETTER (INCLUDING ITS ATTACHMENTS) AND HIS DECISION TO
EXECUTE THE SAME, THAT HE HAS CAREFULLY READ THE LETTER (INCLUDING ITS ATTACHMENTS), THAT HE HAS
HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY AN ATTORNEY, THAT HE FULLY UNDERSTANDS ITS FINAL AND
BINDING EFFECT, THAT THE ONLY PROMISES MADE TO HIM TO SIGN THE RELEASE SET FORTH ON ATTACHMENT A
ARE THOSE STATED IN THE LETTER (INCLUDING ITS ATTACHMENTS), AND THAT THE UNDERSIGNED IS SIGNING
VOLUNTARILY WITH THE FULL INTENT OF RELEASING THE EMPLOYER AFFILIATES OF ALL CLAIMS.
THE UNDERSIGNED SHALL HAVE A PERIOD OF SEVEN CALENDAR DAYS FOLLOWING HIS EXECUTION OF THE LETTER
(INCLUDING ITS ATTACHMENTS) TO REVOKE THE LETTER (AND ITS ATTACHMENTS). THE LETTER (AND ITS
ATTACHMENTS), INCLUDING THE OBLIGATION TO PAY SEVERANCE, SHALL NOT BECOME EFFECTIVE IF THE
UNDERSIGNED TIMELY EXERCISES THIS RIGHT OF REVOCATION. TO BE EFFECTIVE, ANY SUCH NOTICE OF
REVOCATION MUST BE IN WRITING, AND MUST BE RECEIVED WITHIN SAID SEVEN-DAY PERIOD. THE LETTER (AND
ITS ATTACHMENTS) SHALL BECOME EFFECTIVE UPON EXPIRATION OF THE REVOCATION PERIOD, IF THE
UNDERSIGNED HAS NOT PRIOR THERETO EXERCISED HIS RIGHT OF REVOCATION (THE EFFECTIVE DATE).
Kenton K. Alder | ||||
Date: |
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Exhibit A-5