exv10w5



 






Exhibit 10.5




April 13, 2004




Alan Marten

c/o SMART Modular Technologies

[Address]


Dear Alan:




     On behalf of Modular, L.L.C. (the “Parent”), I am pleased to set forth the terms of your
continued employment with SMART Modular Technologies (the “Company”) after the closing of the
acquisition of the Company and related entities from Solectron by the Parent and its subsidiaries
(the “Acquisition”). This letter agreement (this “Letter Agreement”) is contingent on, and will be
effective upon the date of, the closing of the Acquisition (the “Effective Date”). By signing this
Letter Agreement, you agree that the Change of Control and Employment Agreement dated as of July 3,
2003 between you and the Company (the “Existing Agreement”) will be amended immediately as of the
Effective Date as provided herein, and you agree to take any additional action necessary to
effectuate such amendment.



     The terms of your continued employment with the Company and its affiliates will be as follows:



	 	 	 
	Position:

	 	Your position will be Vice President and
General Manager Memory, initially reporting
to the President. While employed by the
Company or its affiliates, you will be
expected to devote your full working time
and attention to the business of the
Company and its affiliates and not engage
or participate in any business that is
competitive with the business of the
Company and its affiliates.
	 
	 	 
	Base Salary:

	 	You will receive an initial annual base
salary of $154,000 to be paid in regular
installments in accordance with the
Company’s usual payroll practices. It is
expected that salary reviews will be
conducted on an annual basis, and you will
be entitled to such increases in your base
salary as determined by the Board of
Directors in its sole discretion.
	 
	 	 
	Performance

Bonus:

	 	You will be eligible to receive an annual
performance bonus. Your target bonus
opportunity will be 100% of your base
salary. Your actual bonus will depend upon
the achievement of performance criteria
(which may be based on the Company’s and
its affiliates’ performance, individual
performance, or a combination thereof)
established by the Board of Directors in
its sole discretion
















 






	 	 	 
	 

	 	from time to time in consultation with the management team.
	 
	 	 
	Integration Bonus:

	 	Within 90 days after the Effective Date,
you will receive a one-time integration
bonus equal to 100% of your annual base
salary so long as your employment with the
Company has continued until such payment
date.
	 
	 	 
	Stock Option:

	 	Promptly after the Effective Date, you will
be granted an option (the “Option”) to
purchase shares of common stock of Parent
(or one of its affiliates) representing
approximately 0.58% of such entity’s
outstanding common stock. The Option will
have an exercise price equal to the fair
market value of the stock as of the date of
grant. The Option will vest and become
exercisable over four years subject to your
continued employment on the applicable
vesting date, with 25% of the Option
vesting after the first year and monthly
vesting thereafter; provided that if within
90 days after a Change in Control (as
defined below), your employment is
terminated by the Company without Cause (as
defined below) or by you by reason of a
material diminution of duties and
responsibilities from those immediately
prior to such Change in Control, the Option
will become vested to the extent it would
have vested during the 12-month period
after such date of termination if you had
remained employed with the Company. The
Option will be subject to the terms of the
stock plan and the applicable award
agreement.
	 
	 	 
	Amendment to
Existing Agreement:

	 	By signing below, you agree that the Existing Agreement is
hereby amended as of the Effective Time such that the references in each of
Section 2(a)(i) and (ii) to “eighteen (18) months” is replaced with “twelve
(12) months”.
	 
	 	 
	Equity Investment:

	 	You have agreed to invest $250,000 in
equity securities of the Parent or its
affiliates to the extent permitted by the
Parent and its stockholders. Such
investment may be subject to restrictions
on transfer, fair market value repurchase
rights and other conditions as are deemed
acceptable by the Parent as well as your
representation as to financial
sophistication and other matters.
	 
	 	 
	Benefits:

	 	You will be provided employee benefits
(including fringe benefits, vacation, life,
health, accident and disability insurance,
401(k) plan) on the same basis as those
benefits






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	 	are generally made available to
senior executives of the
Company, which benefits will be substantially similar to those benefits of
Solectron in which you participate as of the date hereof.
	 
	 	 
	Definitions:

	 	For purposes of this Letter Agreement, the following
terms have the following meanings:
	 
	 	 
	 

	 	(a) “Cause” means: (i) an act of dishonesty
made by you in connection with your responsibilities which the
Company reasonably believes will damage its business, (ii) your
conviction of, or plea of nolo contendere to, a felony which the
Board of Directors reasonably believes had or will have a material
detrimental effect on the reputation or business of the Company or
its affiliates, (iii) your gross misconduct, or (iv) your continued
substantial violations of your duties after you have received a
written demand for performance from the Company or one of its
affiliates which specifically sets forth the factual basis for its
belief that you have not substantially performed your duties.

	 
	 	 
	 

	 	(b) “Change of Control” means the
occurrence of one of the following events:
	 
	 	 
	 

	 	(i) the consummation of a
merger or consolidation of the Company with or into any
other entity pursuant to which the direct and indirect
shareholders of the Company, or applicable, immediately
prior to such merger or consolidation hold less than 50%
of the voting power (directly or indirectly) of the
surviving entity;

	 
	 	 
	 

	 	(ii)
 the sale or other
disposition of all or substantially all of the Company’s
assets; or

	 
	 	 
	 

	 	(iii) any acquisition by
any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934 and other than the direct and indirect shareholders
of the Company immediately after the Effective Date) of
the beneficial ownership of 50% or more of the voting
power of the Company’s equity securities in a single
transaction or series of related







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	 	transactions, other than
in an underwritten
public offering of the securities of the Company;



	 

	 	provided, however, that a transaction shall not constitute a
Change of Control if its sole purpose is to change the state of
the Company’s incorporation or to create a holding company that
will be owned in substantially the same proportions by the
persons who held the Company’s securities immediately before
such transaction.

	 
	 	 
	At-Will

Employment

	 	Your employment with the Company is “at-will”, meaning either
you or the Company may terminate your employment for any
reason at any time, with or without cause.
	 
	 	 
	Restrictive

Covenants:

	 	As a condition to your employment and the grant of the
Options, you have executed or, if requested, agree to execute
the Company’s standard form of proprietary information and
confidentiality agreement.
	 
	 	 
	 

	 	In addition, you agree as follows:
	 
	 	 
	 

	 	(a) During the term of your employment with
the Company and (i) in the event your employment is terminated by
you for any reason or by the Company for Cause, for a period of 12
months following such termination of employment, or (ii) in the
event your employment is terminated by the Company without Cause,
for the number of months corresponding to the amount of severance
pay, if any, you receive in connection with such termination
(whether under the Existing Agreement or otherwise), you will not,
on your own behalf or on behalf of or in connection with any other
Person, without the prior written consent of the Company, directly
or indirectly, in any capacity whatsoever, alone or through or in
connection with any person, solicit the business of (or procure or
assist the canvassing or soliciting of the business of) any
customer or prospective customer of the Company and its affiliates
identified and known to you at the time of termination of
employment, either away







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	 	from the Company or as it relates directly
to the business of the Company.

	 
	 	 
	 

	 	(b) During the term of your employment with
the Company and for a period of 12 months following the termination
of your employment, you will not, on your own behalf or on behalf
of or in connection with any other Person, without the prior
written consent of the Company, directly or indirectly, solicit the
employment or engagement of or otherwise entice away from the
employment or engagement of the Company or any of its affiliates,
any individual who is employed or engaged by the Company or any of
its affiliates.

	 
	 	 
	 

	 	You agree that a material breach or threatened breach of these
restrictive covenants may cause the Company irreparable injury for which
adequate remedies are not available at law. Therefore, you agree that,
if you materially breach any of those covenants during or following
termination of employment, the Company may be entitled to an injunction
or other equitable relief in addition to any other relief to which the
Company may become entitled.
	 
	 	 
	Miscellaneous:

	 	All amounts due hereunder are subject to payroll
deductions and withholdings as are required by law. Any
amounts due hereunder will be reduced by any payments,
benefits or notice required pursuant to law in
connection with a termination of employment, including
under the WARN Act or similar state law, and will be in
lieu of any Company severance policy, plan or other
agreement. This Letter Agreement may be assigned by the
Parent to the Company or any of its affiliates.
	 
	 	 
	Entire Agreement:

	 	This Letter Agreement represents the entire
understanding between you and the Parent or any of its
affiliates regarding the matters discussed herein and
supersedes all prior agreements (other than any existing
proprietary information and confidentiality agreement),
written or oral, between you and the Company, the Parent

or any of their affiliates, other than the Existing
Agreement (as amended hereby).
	 
	 	 
	Governing Law:

	 	This Letter Agreement will be governed by California
law, without application of the conflict of law
principles thereof.






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     To indicate your acceptance of this offer, please sign and return this Letter Agreement.



	 	 	 	 	 
	 

	 	 	 	Very truly yours,
	 
	 	 	 	 
	 

	 	 	 	/s/ Iain MacKenzie
	 

	 	 	 	 
	Agreed and accepted:
	 	 	 	 
	 

	 	 	 	
	/s/ Alan Marten
	 	 	 	 
	 	 	 	 	 
	Name: Alan Marten
	 	 	 	 
	Date:
	 	 	 	 







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