EMPLOYMENT AGREEMENT
Exhibit 10.2
This Agreement is made as of the 1st day of December, 2005, between TTM TECHNOLOGIES, INC., a
Delaware corporation (the “Company”), and XXXXXX X. XXXXX (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 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 Executive’s 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, all amounts due to the Executive as Base Salary pursuant to §2(b) above for
the period beginning on the Termination Date and ending 18 months thereafter, in
installments on the payment dates on which such Base Salary would have been paid if the
Employment Period had continued for such period and, as of the date of the last such
payment, the Company will have no further obligation to the Executive.
(ii) In the event that the Executive’s 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, all amounts due to the Executive as Base Salary pursuant to §2(b) above
for the period beginning on the Termination Date and ending 18 months thereafter, in
installments on the payment dates on which such Base Salary would have been paid if the
Employment Period had continued for such period and, as of the date of the last such
payment, the Company will have no further obligation to the Executive.
(iii) In the event of a Change in Control 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.
(iv) In no event shall termination of the Executive’s 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 Executive’s right to receive, and the Company’s obligation to pay and provide,
any of the payments and benefits provided for in this §2(d) shall be subject to (A) the
Executive’s compliance with, and observance of, all of the Executive’s obligations under
this Agreement that continue beyond the Termination Date and (B) the Executive’s 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 Company’s 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 Executive’s 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 Company’s absolute discretion. The provisions of this §3
shall survive the termination of the Executive’s 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 Executive’s 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
Executive’s employment hereunder or on the Company’s 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 Company’s (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 Company’s 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 Company’s business, or actual or demonstrably anticipated research or development
of the Company; or (ii) result from any work performed 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 Company’s
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 Board’s 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) provided, however, that this sentence shall not prohibit the
Executive from serving as a member of the board of directors of Innovar, Inc. (“Innovar”) (or any
successor thereto), so long as the Executive’s activities as a director of Innovar (or any such
successor) do not, in the reasonable judgment of the Board, adversely affect the business of the
Company and its Subsidiaries.
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.
(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:
Xxxxxx X. Xxxxx
0000 Xxxxx 0000 Xxxx
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
0000 Xxxxx 0000 Xxxx
Xxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
If to the Company:
TTM Technologies, Inc.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With copies to:
Xxxxxxxxx Traurig, LLP
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxx@xxxxx.xxx
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxx@xxxxx.xxx
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 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 Xxx, 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.
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.
SIGNATURES APPEAR ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year above
written.
| TTM TECHNOLOGIES, INC. | ||||||
| By: | /s/ | Xxxxxx X. Xxxxxxx | ||||
| Xxxxxx X. Xxxxxxx | ||||||
| Chairman of the Board | ||||||
| /s/ Xxxxxx X. Xxxxx | ||||||
| XXXXXX X. XXXXX | ||||||
