Employment Agreement - Delly

Employment Agreement – Fu

Termination Agreement – Fu

Consulting Agreement – Fu

 

 

 

EX-10.3 4 v239822_ex10-3.htm EXHIBIT 10.3

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

This Amended and Restated Employment Agreement, dated as of January 1, 2012, (the “Agreement”), is hereby entered into by and between Gayla J. Delly (the “Employee”) and Benchmark Electronics, Inc., a Texas corporation (the “Company”).

 

RECITALS

 

The Employee and the Company have been parties to an Employment Agreement dated December 1, 2005 (the “Prior Agreement”); and

 

In connection with the Employee’s promotion from President to President and Chief Executive Officer, the Employee and the Company desire to amend and restate the Prior Agreement in its entirety.

 

AGREEMENT

 

In consideration of the mutual covenants and conditions contained herein, the parties hereto agree as follows:

 

Section 1.  Employment.  The Company hereby agrees to employ the Employee, and the Employee hereby accepts employment by the Company, upon the terms and subject to the conditions hereinafter set forth.  During the term of her employment, the Employee shall have the title of President and Chief Executive Officer.

 

Section 2.  Duties.  In her capacity as President and Chief Executive Officer of the Company, the Employee shall perform such reasonable executive duties as President and Chief Executive Officer would normally perform or as otherwise specified in the By-laws of the Company, and such other reasonable executive duties as the Board of Directors of the Company may from time to time reasonably prescribe with the concurrence of the Employee.  Except as otherwise provided herein, except as may otherwise be approved by the Board of Directors of the Company, and except during vacation periods and reasonable periods due to sickness, personal injury or other disability, the Employee agrees to devote substantially all of her available time to the performance of her duties to the Company hereunder, provided that nothing contained herein shall preclude the Employee from (i) serving on the board of directors of any business or corporation on which she is serving on the date hereof or, with the consent of the Board of Directors, serving on the board of directors of any other business or corporation, (ii) serving on the board of, or working for, any charitable or community organization, and (iii) pursuing her personal financial and legal affairs so long as such activities do not materially interfere with the performance of the Employee’s duties hereunder.

 

Section 3.  Term.  Except as otherwise provided herein, the term of this Agreement shall be for four (4) years (the “Initial Term”), commencing on the date of this Agreement.  This Agreement shall be automatically renewed thereafter for successive one (1) year terms (each such renewal term, a “Renewal Term”), unless either party gives to the other written notice of termination no fewer than ninety (90) days prior to the expiration of the Initial Term or any such Renewal Term, which notice shall expressly refer to this Section 3 of the Agreement and state that such party does not wish to extend the Employee’s employment beyond the end of the Initial Term or the Renewal Term then in effect (any such notice, a “Non-Renewal Notice”).  The Initial Term, as the same may be extended by any Renewal Term, is referred to herein as the “Employment Term”.  The provisions of this Agreement shall survive any termination hereof.

 

Section 4.  Compensation and Benefits.  In consideration for the services of the Employee hereunder during the Employment Term, the Company shall compensate the Employee and perform its other obligations as provided in this Section 4.

 

(a) Base Salary.  Commencing on the date hereof, the Employee shall be entitled to receive, and the Company shall pay the Employee in equal bi-weekly installments, a base salary at a rate per annum of Seven Hundred Fifty Thousand Dollars ($750,000.00) as increased or decreased from time to time by the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”).  The annualized amount of such base salary for each respective annual one (1) year period, including any increases hereafter approved, is referred to as the “Base Salary” for such respective one year period.  The Employee’s Base Salary may not and shall not be decreased or reduced more than ten percent (10%) in any year, including but not limited to after giving effect to any such increase.

 

 

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(b) Bonus.  During the Employment Term, the Employee shall be eligible to participate in any annual fiscal year bonus plan that may be provided by the Company for its key executive employees, as adopted by the Compensation Committee, subject to the terms and conditions of any such bonus plan (the “Executive Bonus Plan”).  For the Company’s fiscal year 2012, the Employee’s target bonus opportunity under the Executive Bonus Plan shall be 100 percent (100%) of Base Salary if the Company attains specified performance objectives for such year, with a maximum bonus opportunity of 200 percent (200%) of Base Salary if the Company exceeds the foregoing performance objectives by predetermined amounts.  For each of the Company’s fiscal years during the Employment Term after the Company’s fiscal year 2012, the Employee’s target and maximum bonus opportunities under the Executive Bonus Plan then in effect, and the specified performance objectives under the Executive Bonus Plan then in effect, shall be determined on an annual basis and shall be reasonably satisfactory to the Company and the Employee.  All bonuses payable to the Employee under the Executive Bonus Plan in effect from time to time shall be determined and paid on or prior to March 15 of the year following the year for which such bonus is earned and payable.

 

(c) Other Long Term Incentive Compensation.  The Employee shall be entitled to participate in all long-term incentive compensation programs for key executives (if any) at a level commensurate with her position.

 

(d) Other Benefits.  During the term of this Agreement, the Employee shall be entitled to participate in and receive benefits under any and all pension, profit-sharing, life and other insurance, medical, dental, health and other welfare and fringe benefit plans and programs, and be provided any and all other perquisites, that are from time to time made available to executive employees or other employees of the Company.  The Employee’s participation in any employee benefit plan or program will be subject to the provisions, rules, and regulations of, or applicable to, the plan or program.  The Company provides no assurance as to the adoption or continuation of any particular employee benefit plan or program. The Employee shall also be entitled to an amount of paid vacation per calendar year, and sick leave and illness and disability benefits, in accordance with such reasonable Company policy as may be applicable from time to time to key executive employees.

 

(e) Compensation Recovery Policy.  To the extent that any compensation paid or payable pursuant to this Agreement is considered “incentive-based compensation” within the meaning and subject to the requirements of Section 10D of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), such compensation shall be subject to potential forfeiture or recovery by the Company in accordance with any compensation recovery policy adopted by the Board of Directors of the Company or any committee thereof in response to the requirements of Section 10D of the Exchange Act and any implementing rules and regulations thereunder adopted by the Securities and Exchange Commission or any national securities exchange on which the Company’s common stock is then listed.  This Agreement may be unilaterally amended by the Company to comply with any such compensation recovery policy.

 

(f) Initial Equity Awards.  The Compensation Committee will submit to the independent members of the Board of Directors of the Company for their ratification three equity-based long-term incentive awards to be provided to the Employee under the Company’s 2010 Omnibus Incentive Compensation Plan (the “Plan”), each such award to have a grant date of January 1, 2012 and a grant date fair value of $500,000.  For these purposes, the per share grant date fair value of any restricted stock or restricted stock unit award will be equal to the fair market value (as defined in the Plan) of a share of the Company’s common stock on the grant date.  One such award will be a non-statutory stock option to acquire shares of the Company’s common stock that will be subject only to service-based vesting conditions, one such award will be an award of either restricted stock units or shares of restricted stock that will be subject only to service-based vesting conditions, and one such award will be an award of either restricted stock units or shares of restricted stock that will be subject to both service-based vesting conditions and performance-based vesting conditions.  The Compensation Committee will specify the terms and conditions of these awards, including the applicable performance-based vesting conditions to be satisfied.

 

 

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Section 5.  Expenses and Other Employment-Related Matters.  It is acknowledged by the parties that the Employee, in connection with the services to be performed by her pursuant to the terms of this Agreement, will be required to make payments for travel, entertainment and similar expenses.  The Company shall reimburse the Employee for all reasonable expenses incurred by the Employee in connection with the performance of her duties hereunder or otherwise on behalf of the Company.

 

Section 6.  Termination.  The Employee’s employment may terminate prior to the end of the Employment Term as provided in this Section 6.  The date upon which the Employee’s termination of employment with the Company occurs is the “Termination Date”.  For purposes of Sections 6(c) and 6(d) of this Agreement only, with respect to the timing of any payments thereunder, the Termination Date shall mean the date on which a “separation from service” has occurred for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), and the regulations and guidance thereunder.

 

(a) Death or Disability.  The Employee’s employment will terminate (x) immediately upon the death of the Employee during the term of her employment hereunder or (y) at the option of the Company, upon thirty (30) days’ prior written notice to the Employee, in the event of the Employee’s disability.  The Employee shall not be deemed disabled unless, as a result of the Employee’s incapacity due to physical or mental illness (as determined by a physician selected by the Employer or its insurers and reasonably acceptable to the Employee or her representative), the Employee shall have been absent from and unable to perform her duties with the Company on a full-time bases for one hundred twenty (120) consecutive business days.   In the event of termination of the Employee’s employment pursuant to this Section 6(a):

 

(1) The Company shall immediately pay the Employee (or her estate) (i) any portion of the Employee’s Base Salary accrued but unpaid through the Termination Date and (ii) all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee (or her estate) shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(b) For Cause.  The Company may terminate the employee’s employment for Cause (as defined below) upon written notice by the Company to the Employee, such Termination Date to be determined in accordance with the last paragraph of this Section 6(b) below.  In the event of termination of the Employee’s employment for Cause pursuant to this Section 6(b), then the Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the Termination Date and (ii) all payments and reimbursement under Section 5 hereof for expenses incurred prior to such termination.

 

For purposes of this Agreement, the term “Cause” shall mean the Employee’s (i) gross negligence in the performance of her duties with the Company, which gross negligence results in a material adverse effect on the Company, provided that no such gross negligence will constitute “Cause” if it relates to an action taken or omitted by the Employee in the good faith, reasonable belief that such action or omission was in or not opposed to the best interests of the Company; (ii) habitual neglect or disregard of her duties with the Company that is materially and demonstrably injurious to the Company, after written notice from the Company stating the duties the Employee has failed to perform; (iii) engaging in conduct or misconduct that materially harms the reputation or financial position of the Company; (iv) obstruction, impedance, or failure to materially cooperate with an investigation authorized by the Board, a self-regulatory organization empowered with self-regulatory responsibilities under federal or state laws, or a governmental department or agency; or (v) conviction of a felony, provided that no such conviction will constitute “Cause” if it relates to an action determined by the Board, in its sole discretion, to have been taken or omitted by the Employee in the good faith, reasonable belief that such action or omission was in or not opposed to the best interest of the Company.  The Employee’s employment may not and shall not be terminated for Cause unless the (1) Board of Directors provides the Employee with written notice stating the conduct alleged to give rise to such Cause, (2) the Employee has been given an opportunity to be heard by the Board, (3) in the case of clause (i) or (ii) of the definition of Cause, the Employee has been given a reasonable time to cure, and the Employee has not cured such negligence or failure to the reasonable satisfaction of the Board, and (4) the Board has approved such termination by majority vote of the members of the Board of Directors, excluding the Employee.

 

 

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(c) By Company Without Cause.  The Company may terminate the Employee’s employment at any time for any reason without Cause.  In the event of any termination of the Employee’s employment by the Company without Cause pursuant to this Section 6(c):

 

(1) The Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the Termination Date and (ii) all payments and reimbursement under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(3) Subject to the Employee satisfying the conditions in Section 6(f), the Company shall pay the Employee severance pay equal to two (2) times the sum of (i) her Base Salary at the Termination Date plus (ii) her target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs.  Such amount, less applicable withholdings, shall be payable in a lump sum sixty (60) calendar days after the Termination Date.  In addition, if (and only if) the Termination Date occurs within twenty-four (24) months after a Change in Control (as defined below), then the Company shall pay the Employee additional severance pay equal to one (1) times the sum of (i) her Base Salary at the Termination Date plus (ii) her target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs.  Such additional amount, less applicable withholdings, shall also be payable in a lump sum sixty (60) calendar days after the Termination Date.  The Employee shall have no obligation of mitigation or similar obligation with respect to such payment.

 

(4) Subject to the Employee satisfying the conditions in Section 6(f), the Company will pay the Employee a prorated annual bonus for the year in which the Termination Date occurs that is equal to the Employee’s target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs multiplied by a fraction, the numerator of which is the number of days the Employee was employed by the Company during the year in which the Termination Date occurs and the denominator of which is 365, less applicable withholdings, payable in a lump sum sixty (60) calendar days after the Termination Date.

 

(5) Subject to the Employee satisfying the conditions in Section 6(f), if Employee is eligible for and properly elects to continue Employee’s (or her dependents’) group health insurance coverage, as in place immediately prior to the Termination Date, the Company shall pay for the portion of the premium costs for such coverage that the Company would pay if Employee remained employed by the Company, at the same level of coverage that was in effect as of the Termination Date, for a period of eighteen (18) consecutive months after the Termination Date, provided that such benefits continuation will cease if and to the extent the Employee becomes eligible for similar benefits by reason of new employment or the Employee otherwise is no longer eligible for continuation coverage pursuant to applicable laws and plans.

 

(d) By Employee for Good Reason.  The Employee may terminate her employment at any time for Good Reason (as defined below).  In the event of any termination of the Employee’s employment by the Employee for Good Reason pursuant to this Section 6(d):

 

(1) The Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the Termination Date and (ii) all payments and reimbursement under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(3) Subject to the Employee satisfying the conditions in Section 6(f), the Company shall pay the Employee severance pay equal to two (2) times the sum of (i) her Base Salary at the Termination Date plus (ii) her target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs.  Such amount, less applicable withholdings, shall be payable in a lump sum sixty (60) calendar days after the Termination Date.  In addition, if (and only if) the Termination Date occurs within twenty-four (24) months after a Change in Control (as defined below), then the Company shall pay the Employee additional severance pay equal to one (1) times the sum of (i) her Base Salary at the Termination Date plus (ii) her target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs.  Such additional amount, less applicable withholdings, shall also be payable in a lump sum sixty (60) calendar days after the Termination Date.  The Employee shall have no obligation of mitigation or similar obligation with respect to such payment.

 

 

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(4) Subject to the Employee satisfying the conditions in Section 6(f), the Company will pay the Employee a prorated annual bonus for the year in which the Termination Date occurs that is equal to the Employee’s target bonus under the Executive Bonus Plan in effect for the year in which the Termination Date occurs multiplied by a fraction, the numerator of which is the number of days the Employee was employed by the Company during the year in which the Termination Date occurs and the denominator of which is 365, less applicable withholdings, payable in a lump sum sixty (60) calendar days after the Termination Date.

 

(5) Subject to the Employee satisfying the conditions in Section 6(f), if Employee is eligible for and properly elects to continue Employee’s (or her dependents’) group health insurance coverage, as in place immediately prior to the Termination Date, the Company shall pay for the portion of the premium costs for such coverage that the Company would pay if Employee remained employed by the Company, at the same level of coverage that was in effect as of the Termination Date, for a period of eighteen (18) consecutive months after the Termination Date, provided that such benefits continuation will cease if and to the extent the Employee becomes eligible for similar benefits by reason of new employment or the Employee otherwise is no longer eligible for continuation coverage pursuant to applicable laws and plans.

 

For purposes of this Agreement, “Good Reason” means the occurrence of any of the following events without the Employee’s consent: (A) a material diminution of the Employee’s duties or responsibilities, (B) a reduction in the Employee’s Base Salary greater than ten percent (10%), or annual bonus or long-term incentive compensation opportunity, or (C) a material breach by the Company of any provision of this Agreement; provided, however, that the occurrence of any of the events described in clauses (A) through (C) above will not constitute Good Reason unless (i) the Employee gives the Company written notice within sixty (60) days after the initial

occurrence of any of such event that the Employee believes that such event constitutes Good Reason and, (ii) the Company thereafter fails to cure any such event within thirty (30) days after receipt of such notice, and (iii) the Employee’s Termination Date as a result of such event occurs within 180 days after the initial occurrence of such event.

 

(e) By Employee Without Good Reason.  The Employee may terminate her employment at any time without Good Reason upon thirty (30) days’ prior written notice to the Company.  In the event of any such termination of the Employee’s employment by the Employee without Good Reason pursuant to this Section 6(e):

 

(1)  The Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the Termination Date and (ii) all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(f) Conditions For Severance and Benefits Continuation Payments. Notwithstanding anything above to the contrary, any obligation of the Company to provide the severance or benefits continuation payments under Sections 6(c)(3) through 6(c)(5) or under Sections 6(d)(3) through 6(d)(5) above shall be contingent upon (1) the Employee executing and not rescinding a general release in a form prepared by the Company, and (2) the Employee strictly complying with the terms of this Agreement, the Confidentiality Agreement (defined below) and any other written agreements between the Company and the Employee, including without limitation the Employee’s compliance with the obligations under Sections 8 and 9 below that survive the termination of the Employee’s employment.

 

 

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(g) Parachute Payment Restrictions.  If any payment or benefit to be paid or provided to the Employee under this Agreement, taken together with any payments or benefits otherwise paid or provided to the Employee by the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504 of the Code without regard to Section 1504(b) of the Code) of which the Company is a member (the “other arrangements”), would collectively constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), and if the net after-tax amount of such parachute payment to the Employee is less than what the net after-tax amount to the Employee would be if the aggregate payments and benefits otherwise constituting the parachute payment were limited to three times the Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) less $1.00, then the aggregate payments and benefits otherwise constituting the parachute payment shall be reduced to an amount that shall equal three times the Employee’s base amount, less $1.00.  Should such a reduction in payments and benefits be required, the Employee shall be entitled, subject to the following sentence, to designate those payments and benefits under this Agreement or the other arrangements that will be reduced or eliminated so as to achieve the specified reduction in aggregate payments and benefits to the Employee and avoid characterization of such aggregate payments and benefits as a parachute payment.  The Company will provide the Employee with all information reasonably requested by the Employee to permit the Employee to make such designation.  To the extent that the Employee’s ability to make such a designation would cause any of the payments and benefits to become subject to any additional tax under Code Section 409A, or if the Employee fails to make such a designation within ten business days of receiving the requested information from the Company, then the Company shall achieve the necessary reduction in such payments and benefits by first reducing or eliminating the portion of the payments and benefits that are payable in cash and then by reducing or eliminating the non-cash portion of the payments and benefits, in each case in reverse order beginning with payments and benefits which are to be paid or provided the furthest in time from the date of the Company’s determination.  For purposes of this Section 6(g), a net after-tax amount shall be determined by taking into account all applicable income, excise and employment taxes, whether imposed at the federal, state or local level, including the excise tax imposed under Section 4999 of the Code.  

 

Section 7.  Change in Control.  For purposes of this Agreement, (1) the term “Person” means any individual, corporation, partnership, trust, company, business, firm, association, organization, governmental instrumentality, other entity, syndicate or group, (2) the term “Voting Securities” shall mean, as to any Person, the then-outstanding securities of or other interests in such Person entitled to vote generally in the election of directors, trustees or similar managers of such Person, (3) the term “Affiliate” means any entity that, directly or indirectly, is controlled by, controls or is under common control with, the Company or any entity in which the Company has a significant equity interest, and (4) the term “Change in Control” shall mean the occurrence of any of the following events:

 

(a)  during any period of 24 consecutive calendar months, individuals who were Directors of the Company on the first day of such period (the “Incumbent Directors”) cease for any reason to constitute a majority of the Company’s Board of Directors; provided,however, that any individual becoming a Director subsequent to the first day of such period whose election, or nomination for election, by the Company’s shareholders was approved by a vote of at least a majority of the Incumbent Directors shall be considered as though such individual were an Incumbent Director, but excluding, for purposes of this proviso, any such individual whose initial assumption of office occurs as a result of an actual or threatened proxy contest with respect to election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person, in each case, other than the management of the Company or the Board of Directors;

 

(b)   the consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving (x) the Company or (y) any of its subsidiaries, but in the case of this clause (y) only if Company Voting Securities are issued or issuable, or the sale or other disposition of all or substantially all the assets of the Company to a Person that is not an Affiliate (each of the foregoing events being hereinafter referred to as a “Reorganization”), in each case, unless, immediately following such Reorganization, (i) all or substantially all the Persons who were the “beneficial owners” (as such term is defined in Rule 13d-3 under the Exchange Act (or a successor rule thereto)) of the Company Voting Securities outstanding immediately prior to the consummation of such Reorganization continue to beneficially own, directly or indirectly, more than 50% of the combined voting power of the then outstanding Voting Securities of the corporation or other entity resulting from such Reorganization (including, without limitation, a corporation that, as a result of such transaction, owns the Company or all or substantially all the Company’s assets either directly or through one or more subsidiaries) (the “Continuing Company”) in substantially the same proportions as their ownership, immediately prior to the consummation of such Reorganization, of the outstanding Company Voting Securities (excluding, for purposes of determining such proportions, any outstanding voting securities of the Continuing Company that such beneficial owners hold immediately following the consummation of the Reorganization as a result of their ownership prior to such consummation of voting securities of any corporation or other entity involved in or forming part of such Reorganization other than the Company), (ii) no Person (excluding any employee benefit plan (or related trust) sponsored or maintained by the Continuing Company or any corporation controlled by the Continuing Company) beneficially owns, directly or indirectly, 50% or more of the combined voting power of the then outstanding voting securities of the Continuing Company and (iii) at least a majority of the members of the board of directors of the Continuing Company (or equivalent body) were Incumbent Directors at the time of the execution of the definitive agreement providing for such Reorganization or, in the absence of such an agreement, at the time at which approval of the Board of Directors was obtained for such Reorganization;

 

 

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(c)  the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company unless such liquidation or dissolution is part of a transaction or series of transactions described in paragraph (b) above that does not otherwise constitute a Change in Control; or

 

(d)  any Person (other than (A) the Company, (B) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or an Affiliate or (C) any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of the voting power of the Company Voting Securities) becomes the beneficial owner, directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company Voting Securities; provided,however, that for purposes of this paragraph (d), the following acquisitions shall not constitute a Change in Control:  (i) any acquisition directly from the Company, (ii) any acquisition by an underwriter temporarily holding such Company Voting Securities pursuant to an offering of such securities or (iii) any acquisition pursuant to a Reorganization that does not constitute a Change in Control for purposes of paragraph (b) above.

 

Section 8.  Confidential Information.  The Employee recognizes and acknowledges that certain proprietary, non-public information owned by the Company and its affiliates, including without limitation proprietary, non-public information regarding customers, pricing policies, methods of operation, proprietary computer programs, sales products, profits, costs, markets, key personnel, technical processes, and trade secrets (hereinafter called “Confidential Information”), are valuable, special and unique assets of the Company and its affiliates.  The Employee will not, during or after her term of employment, without the prior written consent of a member of the Board believed by the Employee to have been authorized by the Board for such purpose, knowingly and intentionally disclose any of the Confidential Information obtained by her while in the employ of the Company to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, directly or indirectly (other than to an employee of the Company of its affiliates, a director of the Company or its affiliates, or a person to whom disclosure is necessary or appropriate in the Employee’s good faith judgment in connection with the performance of her duties hereunder or otherwise on behalf of the Company), unless and until such Confidential Information becomes publicly available (other than as a consequence of the breach by the Employee of her confidentiality obligations under this Section 8), and except as may be required (or as the Employee may be advised by counsel is required) in connection with any judicial, administrative or other governmental proceeding or inquiry.  In the event of the termination of her employment, whether voluntary or involuntary and whether by the Company or the Employee, the Employee will deliver to the Company and will not take with her any documents, or any other reproductions (in whole or in part) of any items, comprising Confidential Information (except that the Employee may retain her personal address, telephone and other contact lists and information and any other documents or reproductions retained upon the advice of counsel).  Notwithstanding any other provision hereof, the term “Confidential Information” does not include any information that (a) is or becomes publicly available other than as the result of the breach by the Employee of her confidentiality obligations under this Section 8, (b) became, is or becomes available to the Employee on a non-confidential basis from a source, other than the Company, that to the Employee’s knowledge is not prohibited from disclosing such information to the Employee by a confidentiality

obligation owed to the Company or (c) was known to the Employee prior to becoming an officer of the Company.  The provisions of this Section 8 shall expire and be of no further force and effect on the third anniversary of the Termination Date of the Employee’s employment with the Company.

 

 

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Section 9.  Non-Competition, Non-Solicitation, Non-Disparagement.  During the period of Employee’s employment with the Company pursuant to this Agreement and for a period of two (2) years thereafter, the Employee will not knowingly and intentionally (i) engage, directly or indirectly, alone or as a partner, officer, director, employee, or consultant of any other business organization, in any business activities that are substantially and directly competitive with the business activities then conducted by the Company anywhere in the world (the “Designated Industry”); (ii) divert to any competitor of the Company in the Designated Industry any customer of the Company; (iii) solicit or encourage any officer, employee, or consultant of the Company to leave its employ for employment by or with any competitor of the Company in the Designated Industry or, on behalf of herself or any other Person, hire, employ or engage any such person; or (iv) engage at any time in any form of conduct or make any statements, or direct any other person or entity to engage in any conduct or make any statements, that disparage, criticize or otherwise impair the reputation of the Company, its subsidiaries, their products and services, or their past and present officers, directors, employees and consultants.  The parties hereto acknowledge that (A) the Employee’s non-competition obligations hereunder will not preclude the Employee from (x) owning less than 5% of the common stock of any publicly traded corporation or other Person conducting business activities in the Designated Industry or (y) serving as a director of a corporation or other Person engaged in the manufacturing or electronics industry whose business operations are not substantially and directly competitive with those of the Company; and (B) the restrictions set forth in clause (iv) of the preceding sentence shall not apply to any statements by the Employee that are made truthfully in response to a subpoena or as otherwise required by applicable law or other compulsory legal process.  Upon the termination of Employee’s employment with the Company for any reason, the Company agrees to direct the then-current members of its Board of Directors and executive management team to not engage in any conduct or to make any statements, or direct any other person to engage in any conduct or to make any statements, that disparage, criticize or otherwise impairs the reputation of Employee.

 

Section 10.  Confidentiality Agreement.  The Employee and the Company are parties to that certain Inventions, Confidentiality and No Solicitation Agreement dated December 15, 2004 (the “Confidentiality Agreement”).  The Employee and the Company agree that nothing in this Agreement limits or supersedes any of the provisions contained in the Confidentiality Agreement, all of which remain in full force and effect between the Employee and the Company and are hereby reaffirmed in all respects.

 

Section 11.  Arbitration.

 

(a) Subject Claims; Initiation of Binding Arbitration. The Company and the Employee agree that all (i) disputes and claims of any nature that the employee may have against the Company and any subsidiaries or affiliates and their officers and employees, including all federal or state statutory, contractual, and common law claims (including all employment discrimination claims) arising from, concerning, or relating in any way to our employment relationship, (ii) all disputes and claims of any nature that the Company may have against the Employee, or (iii) any dispute among us about the arbitrability of any claims or controversy will be resolved out of court.  Any such claims will be submitted exclusively first to mandatory mediation and, if mediation is unsuccessful, to mandatory arbitration.

 

(b) Arbitration Procedure.  Unless otherwise agreed in writing by the Company and the Employee, any arbitration proceeding will be held in Houston, Texas.  The arbitration will be conducted under the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“AAA” Rules).  The claim will be submitted to a single experienced, neutral employment arbitrator selected in accordance with the AAA Rules.  The arbitrator shall have full authority to award or grant all remedies provided by law.  The arbitrator shall have full authority to permit adequate discovery.  At the conclusion of the arbitration proceeding, the arbitrator shall issue a written, reasoned award.  The award of the arbitration shall be final and binding.  A judgment upon the award may be entered and enforced by any court having jurisdiction.  Each party shall pay the fees of their respective attorneys, the expenses of their witnesses, and any other expenses incurred by such party in connection with the arbitration, provided, however, that the Company shall pay for the fees of the arbitrator and the administrative and filing fees charged by the AAA.

 

(c) Confidentiality; Nonjoinder. All information regarding the dispute or claim or mediation or arbitration proceedings, including the mediation settlement or arbitration award, will not be disclosed by the Employee or by the Company or any mediator or arbitrator to any third party without the written consent of the Employee and the Company.  In no event may an arbitrator allow any party to join claims of any other employee in a single arbitration proceeding without consent of the Employee and the Company.  In the event that the dispute or claim involves a written agreement between the Employee and the Company (including this Agreement) or a compensation plan, the arbitrator will have no authority to add to, detract from, or otherwise modify the agreement or plan provisions other than as expressly set forth in that agreement or plan.  Should this arbitration agreement conflict with the arbitration provisions of any other agreement that the Employee has with the Company, the terms of this agreement will govern.

 

 

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(d) Equitable Relief.  In the event that irreparable injury could occur during the pendency of a mediation or arbitration proceeding, to restore or maintain the status quo until the dispute has been resolved by mediation or arbitration a party may apply to a court of competent jurisdiction to obtain a temporary or preliminary injunction in aid of mediation and arbitration.

 

(e) Binding Agreement.  Notwithstanding any policy of the Company permitting it to alter its policies, procedures, and the terms and conditions of employment, this agreement to arbitrate is binding and cannot be modified or superseded except by a written agreement signed by an authorized representative of the Company and the Employee.

 

 Section 12.  General.

 

(a) Notices.  All notices and other communications hereunder will be in writing, and will be deemed to have been duly given if delivered personally, or three (3) business days after being mailed by certified mail, return receipt requested, or upon receipt if sent by written telecommunications, to the relevant address set forth below, or to such other address as the recipient of such notice or communication will have specified to the other party hereto in accordance with this Section 12(a):

 

If to Company, to:

 

Benchmark Electronics, Inc.

3000 Technology Drive

Angleton, Texas 77515

Attn: Corporate Secretary

Fax No.: 979/848-5269

 

If to Employee, to:

 

Gayla J. Delly

1203 Woodbank Drive

Seabrook, Texas 77586

 

(b) Withholding; No Offset.  All payments required to be made by the Company under this Agreement to the Employee will be subject to the withholding of such amounts, if any, relating to federal, state and local taxes as may be required by law.  No payment under this Agreement will be subject to offset or reduction attributable to any amount of obligation the Employee may owe or be liable for to the Company or any other Person.

 

(c) Equitable Remedies.  Each of the parties hereto acknowledges and agrees that upon any breach by the Employee of her obligations under any of Sections 7 and 8 hereof, the Company will have no adequate remedy at law, and accordingly will be entitled to specific performance and other appropriate injunctive and equitable relief.

 

(d) Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part hereof; and the remaining provisions hereof will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom.  Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there will be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

 

 

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(e) Waivers.  No delay or omission by either party hereto in exercising any right, power or privilege hereunder will impair such right, power or privilege, nor will any single or partial exercise of any such right, power or privilege preclude any further exercise of any other right, power or privilege.

 

(f) Counterparts.  This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument

 

(g) Captions.  The captions in this Agreement are for convenience of reference only and will not limit or otherwise affect any of the terms or provisions hereof.

 

(h) Reference to Agreement.  Use of the words “herein”, “hereof”, and “hereto” and the like in this Agreement refer to this Agreement only as a whole and not to any particular Section, subsection or provision of this Agreement, unless otherwise noted.  Any reference to a “Section” or “subsection” shall refer to a Section or subsection of this Agreement, unless otherwise noted.

 

(iSuccessors and Binding Agreement.  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Employee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place.  This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any Persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization, or otherwise ( and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but shall not otherwise be assignable, transferable, or delegable by the Company.  Without limiting the foregoing, the surviving or transferee corporation or other person in any such transaction (whether by merger, consolidation, reorganization, transfer of business or assets, or otherwise) shall be subject to the provisions of Section 7 hereof and shall be deemed to be the Company for purposes of such provisions, regardless of whether such transaction itself constituted a Change of Control of the Company.

 

 (j) Entire Agreement; Amendments and Waivers.  This Agreement contains the entire understanding of the parties, and supersedes all prior agreements and understandings between them, relating to the subject matter hereof including the Prior Agreement.  This Agreement may not be amended or modified except by a written instrument hereafter signed by each of the parties hereto, and may not be waived except by a written instrument hereafter signed by the party granting such waiver.  The Company has not made any promise or entered into any agreement that is not expressed in this Agreement, and the Employee is not relying upon any statement or representation of any agent of the Company.  In executing this Agreement, the Employee is relying solely on her judgment and has been represented by the legal counsel of her choice in connection with this Agreement who has read and explained to the Employee the entire contents of this Agreement, as well as explained the legal consequences.  No agreements or representation, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement.

 

(k) Governing Law.  This Agreement and the performance hereof shall be governed and construed in all respects, including but not limited to as to validity, interpretation and effect, by the laws of the State of Texas, without regard to the principles or rules of conflict of laws thereof.

 

(l) Section 409A.  This Agreement is intended to satisfy, or be exempt from, the requirements of section 409A of the Code, including current and future guidance and regulations interpreting such provisions (collectively, “Code Section 409A”), and should be interpreted accordingly. Notwithstanding anything to the contrary in this Agreement, if any amount payable pursuant to this Agreement constitutes a deferral of compensation subject to Code Section 409A, and if such amount is payable as a result of the Employee’s “separation from service” at such time as the Employee is a “specified employee” (within the meaning of those terms as defined in Code Section 409A), then no payment shall be made, except as permitted under Code Section 409A, prior to the first business day after the date that is six months after the Employee’s separation from service.   Except for any tax amounts withheld by the Company from the payments or other consideration hereunder and any employment taxes required to be paid by the Company, Employee shall be responsible for payment of any and all taxes owed in connection with the consideration provided for in this Agreement.

 
 

 

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Executed as of the date and year first above written.

 

 

Benchmark Electronics, Inc.

 

 

 

 

 

 

By:

/s/ Cary T. Fu

 

 

 

Cary T. Fu

 

 

 

Chairman of the Board of Directors of

 

 

 

Benchmark Electronics, Inc.

 

 

 

 

 

 

 

 

 

 

Employee

 

 

 

 

 

 

 

/s/ Gayla J. Delly

 

 

 

Gayla J. Delly

 

 

 

November 8, 2011

 

 

 

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EMPLOYMENT AGREEMENT

 

Employment Agreement, dated as of December 1, 2005, (the “Agreement”), by and between Cary T. Fu (the “Employee”) and Benchmark Electronics, Inc., a Texas corporation (the “Company”).

 

WITNESSETH:

 

In consideration of the mutual covenants and conditions contained herein, the parties hereto agree as follows:

 

Section 1.  Employment.  The Company hereby agrees to employ the Employee, and the Employee hereby accepts employment by the Company, upon the terms and subject to the conditions hereinafter set forth.  During the term of his employment, the Employee shall have the title of President and Chief Executive Officer.

 

Section 2.  Duties.  In his capacity as President and Chief Executive Officer of the Company, the Employee shall perform such reasonable executive duties as a President and Chief Executive Officer would normally perform or as otherwise specified in the By-laws of the Company, and such other reasonable executive duties as the Board of Directors of the Company may from time to time reasonably prescribe with the concurrence of the Employee.  Except as otherwise provided herein, except as may otherwise be approved by the Board of Directors of the Company, and except during vacation periods and reasonable periods due to sickness, personal injury or other disability, the Employee agrees to devote substantially all of his available time to the performance of his duties to the Company hereunder, provided that nothing contained herein shall preclude the Employee from (i) serving on the board of directors of any business or corporation on which he is serving on the date hereof or, with the consent of the Board of Directors, serving on the board of directors of any other business or corporation, (ii) serving on the board of, or working for, any charitable or community organization, and (iii) pursuing his personal financial and legal affairs so long as such activities do not materially interfere with the performance of the Employee’s duties hereunder.

 

Section 3.  Term.  Except as otherwise provided herein, the term of this Agreement shall be for three (3) years (the “Initial Term”), commencing on the date of this Agreement.  This Agreement shall be automatically renewed thereafter for successive one  (1) year terms (each such renewal term, a “Renewal Term”), unless either party gives to the other written notice of termination no fewer than ninety (90) days prior to the expiration of any such Renewal Term, which notice shall expressly refer to this Section 3 of the Agreement and state that such party does not wish to extend this Agreement (any

 

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such notice, a “Non-Renewal Notice”).  Any such Non-Renewal Notice given by the Company shall constitute a termination of the Employee’s employment without Cause for purposes of this Agreement.  The Initial Term, as the same may be extended by any Renewal Term, is referred to herein as the “Employment Term”.  The provisions of this Agreement shall survive any termination hereof.

 

Section 4.  Compensation and Benefits.  In consideration for the services of the Employee hereunder, the Company shall compensate the Employee and perform its other obligations as provided in this Section 4.

 

(a) Base Salary.  Commencing on the date hereof, the Employee shall be entitled to receive, and the Company shall pay the Employee in equal bi-weekly installments, a base salary at a rate per annum of Five Hundred Ninety Thousand United States Dollars ($590,000.00), as increased from time to time by  the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”).  Commencing in 2006 and from time to time at least annually thereafter, the Compensation Committee shall review and evaluate the annual base salary of the Employee in accordance with its standard policies and practices for key executive employee compensation and, in its discretion, may increase the Employee’s annual base salary commencing on August 1, 2006, and on anniversaries of such date thereafter.  The amount of such base salary for each respective annual one (1) year period, including any increases hereafter approved, is referred to as the Base Salary for such respective one year period.  The Employee’s Base Salary may not and shall not be decreased or reduced more than ten percent (10%) in any year, including but not limited to after giving effect to any such increase.

 

(b) Bonus.  During the Employment Term, the Employee shall be eligible to participate in any annual fiscal year bonus program that may be provided by the Company for its key executive employees, subject to its terms and conditions.  On February 14, 2005, the Compensation Committee adopted a formal bonus plan (the “Executive Bonus Plan”) for eligible senior executive officers, including the Employee.  The Executive Bonus Plan provides the Employee with a target bonus opportunity of One Hundred percent (100%) of Base Salary for each calendar year in the Employment Term if the Company attains specified performance objectives for such year, and an over achievement bonus opportunity of up to One Hundred percent (100%) of Base Salary if the Company exceeds the foregoing performance objectives by predetermined amounts.  Such objectives and targets shall be determined on an annual basis each year during the Employment Term, and shall be reasonably satisfactory to the Company and the Employee.  All bonuses payable to the Employee under the Executive Bonus Plan or any other annual bonus plan shall be determined and paid on or prior to March 31 of the year following the year for which such bonus is payable.

 

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(c) Other Long Term Incentive Compensation.  The Employee shall be entitled to participate in all long-term incentive compensation programs for key executives (if any) at a level commensurate with his position.

 

(d) Other Benefits.  During the term of this Agreement, the Employee shall be entitled to participate in and receive benefits under any and all pension, profit-sharing, life and other insurance, medical, dental, health and other welfare and fringe benefit plans and programs, and be provided any and all other perquisites, that are from time to time made available to executive employees or other employees of the Company.  The Employee shall also be entitled to an amount of paid vacation per calendar year, and sick leave and illness and disability benefits, in accordance with such reasonable Company policy as may be applicable from time to time to key executive employees.

 

Section 5.  Expenses and Other Employment-Related Matters.  It is acknowledged by the parties that the Employee, in connection with the services to be performed by him pursuant to the terms of this Agreement, will be required to make payments for travel, entertainment and similar expenses.  The Company shall reimburse the Employee for all reasonable expenses incurred by the Employee in connection with the performance of his duties hereunder or otherwise on behalf of the Company.

 

Section 6.  Termination.  The Employee’s employment may terminate prior to the end of the Employment Term as provided in this Section 6.

 

(a) Death or Disability.  The Employee’s employment will terminate (x) immediately upon the death of the Employee during the term of his employment hereunder or (y) at the option of the Company, upon thirty (30) days’ prior written notice to the Employee, in the event of the Employee’s disability.  The Employee shall not be deemed disabled unless, as a result of the Employee’s incapacity due to physical or mental illness (as determined by a physician selected by the Employer or its insurers and reasonably acceptable to the Employee or his representative), the Employee shall have been absent from and unable to perform his duties with the Company on a full-time bases for one hundred twenty (120) consecutive business days.   In the event of termination of the Employee’s employment pursuant to this Section 6(a):

 

(1) The Company shall immediately pay the Employee any portion of the Employee’s Base Salary accrued but unpaid through the date of such termination and all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.  Six (6) months after the date of termination, the Company will make a lump sum cash payment equal to the Employee’s Base Salary and a prorated annual bonus for the year of termination equal to One Hundred percent (100%) of the amount calculated by dividing the Employee’s

 

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annual Base Salary at the date of such termination by twelve (12) and multiplying the result by the number of months in the year of such termination that began or ended prior to the date of such termination.  If the Company achieves target performance objectives for the entire year in which such termination occurs that, under the Executive Bonus Plan or any other then effective bonus plan, would have entitled the Employee to receive an annual bonus for such year calculated at a percent greater than One Hundred percent (100%) of Base Salary, the Employee or his estate shall be entitled to receive, at the time such bonus would have normally been payable or six (6) months after the termination of employment (whichever later occurs), an additional amount equal to (x) such larger bonus amount divided by twelve (12) and multiplied by the number of months in the year of such termination that began or ended prior to the date of such termination minus (y) the amount previously paid pursuant to the preceding sentence.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(b) For Cause.  The Company may terminate the employee’s employment for Cause (as defined below) upon written notice by the Company to the Employee, such termination to take effect on the date determined in accordance with the last paragraph of this Section 6(b) below to be the termination date for such purpose.  In the event of termination of the Employee’s employment for Cause pursuant to this Section 6(b):

 

(1) The Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the date of such termination and (ii) all payments and reimbursement under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

For purposes of this Agreement, the term “Cause” shall mean the Employee’s (i) gross negligence in the performance of his duties with the Company, which gross negligence results in a material adverse effect on the Company, provided that no such gross negligence will constitute “Cause” if it relates to an action taken or omitted by the Employee in the good faith, reasonable belief that such action or omission was in or not opposed to the best interests of the Company; (ii) habitual neglect or disregard of his duties with the Company that is materially and demonstrably injurious to the Company, after written notice from the Company stating the duties the Employee has failed to perform; (iii) engaging in conduct or misconduct that materially harms the reputation or financial position of the Company; (iv) obstruction, impedance, or failure to materially

 

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cooperate with an investigation authorized by the Board, a self-regulatory organization empowered with self-regulatory responsibilities under federal or state laws, or a governmental department or agency; or (v) conviction of a felony, provided that no such conviction will constitute “Cause” if it relates to an action taken or omitted by the Employee in the good faith, reasonable belief that such action or omission was in or not opposed to the best interest of the Company.  The Employee’s employment may not and shall not be terminated for Cause unless the (1) Board of Directors provides the Employee with written notice stating the conduct alleged to give rise to such Cause, (2) the Employee has been given an opportunity to be heard by the Board, (3) in the case of clause (i) or (ii) of the definition of Cause, the Employee has been given a reasonable time to cure, and the Employee has not cured such negligence or failure to the reasonable satisfaction of the Board, and (4) the Board has approved such termination by majority vote of the members of the Board of Directors, excluding the Employee.

 

(c) By Company Without Cause.  The Company may terminate the Employee’s employment at any time for any reason without Cause.  In the event of any termination of the Employee’s employment by the Company without Cause:

 

(1) The Company shall pay the Employee severance pay for the Severance Period (as defined below) at the per annum rate which shall equal one hundred percent (100%) of his Base Salary at the date of such termination.  The Company shall pay such severance pay in lump sum six (6) months after the date of such termination.  The Company’s obligation to make such payments shall be absolute and unconditional.  Without limiting the foregoing, such payments shall not be subject to any right of offset or similar right, and the Employee shall have no obligation of mitigation or similar obligation with respect thereto.

 

(2) The Company shall immediately pay the Employee the portion of the Employee’s Base Salary accrued but unpaid through the date of such termination and all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.  Six (6) months after the date of termination, the Company will pay and a prorated annual bonus for the year of termination equal to One Hundred percent (100%) of the amount calculated by dividing the Employee’s annual Base Salary at the date of such termination by twelve (12) and multiplying the result by the number of months in the year of such termination that began or ended prior to the date of such termination.  If the Company achieves target performance objectives for the entire year in which such termination occurs that, under the Executive Bonus Plan or any other then effective bonus plan, would have entitled the Employee to receive an annual bonus for such year calculated at a percent greater than One Hundred percent (100%) of Base Salary, the Employee (or his estate) shall be entitled to receive, and the Company shall pay, at the time

 

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the bonus would have normally been payable or six (6) months after the termination of employment (whichever later occurs), an additional amount equal to (x) such larger bonus amount divided by twelve (12) and multiplied by the number of months in the year of such termination that began or ended prior to the date of termination minus (y) the amount previously paid pursuant to the preceding sentence.

 

(3) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(4) Following such termination, the Employee shall be entitled to continue participation in all medical, dental, health and other welfare benefits (or receive comparable coverage if such participation is not permitted under the terms of such plans or if the Board, at its option, determines that it is in the best interest of the Company to provide such comparable coverage rather than continued participation in the Company’s plans) until the end of the Severance Period upon the same terms and conditions that would have applied if the Employee continued to be employed by the Company, provided that the benefits referred to in this clause (4) will cease if and to the extent the Employee becomes eligible for similar benefits by reason of new employment.

 

For purposes of this Agreement, the term “Severance Period” means (i) if the Employee’s employment is terminated at or prior to the end of the Initial Term (including but not limited to by the giving of a Non-Renewal Notice or other notice as provided in Section 3 hereof), a period equal to the greater of (x) two (2) full years beginning on the date of such termination and (y) the then remaining portion of the Initial Term and (ii) if the Employee’s employment is terminated after the end of the Initial Term and prior to the end of the then-current Renewal Term (including but not limited to by the giving of any Non-Renewal Notice as provided in Section 3 hereof), a period equal to one (1) full year beginning on the date of such termination.

 

(d) By Employee for Good Reason.  The Employee may terminate his employment at any time for Good Reason (as defined below).  In the event of any termination of the Employee’s employment by the Employee for Good Reason:

 

(1) The Company shall pay the Employee severance pay for the Severance Period (as defined above) at the per annum rate which shall equal one hundred percent (100%) of his Base Salary at the date of such termination.  The Company shall pay such severance pay in lump sum six (6) months after the date of such termination.  The Company’s obligation to make such payments shall be absolute and unconditional.  Without limiting the foregoing, such payments shall not be

 

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subject to any right of offset or similar right, and the Employee shall have no obligation of mitigation or similar obligation with respect thereto.

 

(2) The Company shall immediately pay the Employee the portion of the Employee’s Base Salary accrued but unpaid through the date of such termination and all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.  Six (6) months after the date of termination, the Company will pay a prorated annual bonus for the year of termination equal to One Hundred percent (100%) of the amount calculated by dividing the Employee’s annual Base Salary at the date of such termination by twelve (12) and multiplying the result by the number of months in the year of such termination that began or ended prior to the date of such termination.  If the Company achieves target performance objectives for the entire year in which such termination occurs that, under the Executive Bonus Plan or any other then effective bonus plan, would have entitled the Employee to receive an annual bonus for such year calculated at a percent greater than One Hundred percent (100%) of Base Salary, the Employee (or his estate) shall be entitled to receive, and the Company shall pay, at the time the bonus would have normally been payable or six (6) months after the termination of employment (whichever later occurs), an additional amount equal to (x) such larger bonus amount divided by twelve (12) and multiplied by the number of months in the year of such termination that began or ended prior to the date of termination minus (y) the amount previously paid pursuant to the preceding sentence.

 

(3) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(4) Following such termination, the Employee shall be entitled to continue participation in all medical, dental, health and other welfare benefits (or receive comparable coverage if such participation is not permitted under the terms of such plans or if the Board, at its option, determines that it is in the best interest of the Company to provide such comparable coverage rather than continued participation in the Company’s plans) until the end of the Severance Period upon the same terms and conditions that would have applied if the Employee continued to be employed by the Company, provided that the benefits referred to in this clause (4) will cease if and to the extent the Employee becomes eligible for similar benefits by reason of new employment.

 

For purposes of this Agreement, “Good Reason” means (A) a material diminution of the Employee’s duties or responsibilities, (B) a reduction in the Employee’s Base Salary greater than ten percent (10%), or annual bonus or long-term incentive

 

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compensation opportunity, (C) a Change of Control (as defined in Section 7 hereof), but only if the Employee terminates his employment pursuant to this subsection within ninety (90) days after the date of such Change of Control, or (D) a material breach by the Company of any other provision of this Agreement that is not cured promptly after written notice to the Company by the Employee.

 

(e) By Employee Without Good Reason.  The Employee may terminate his employment at any time without Good Reason upon thirty (30) days’ prior written notice to the Company.  In the event of any such termination of the Employee’s employment by the Employee with Good Reason:

 

(1)  The Company shall immediately pay the Employee (i) any portion of the Employee’s Base Salary accrued but unpaid through the date of such termination and (ii) all payments and reimbursements under Section 5 hereof for expenses incurred prior to such termination.

 

(2) The Employee shall be entitled to receive all vested benefits under the Company’s otherwise applicable plans and programs.

 

(f) Excise Tax Gross-Up Payment.  If a Change of Control or other transaction triggers or results in the imposition upon the Employee of any excise or similar tax under Section 4999 of the Internal Revenue Code (or any similar or successor provision) pursuant to the terms of this Agreement or any employee stock option agreement or plan in which the Employee is a participant, the Company shall pay (or cause any acquirer in such transaction to pay) any such excise or similar tax and make “gross-up” payments to the Employee to the extent necessary so that the Employee will receive the same net after-tax amount he would have received if no excise tax had been imposed on him.

 

(g) No Penalty, Forfeiture or Liability.  Any termination by the Employee of his employment with the Company in accordance with the terms hereof shall be without penalty, forfeiture, or liability arising out of such termination of any kind or nature.  Notwithstanding any other provision hereof, any termination of the Employee’s employment on or after the occurrence of a Change of Control shall be deemed to be a termination by the Company without Cause if by the Company.

 

Section 7. Change in Control.  For purposes of this Agreement, (1) the term “Person” means any corporation, partnership, trust, company, business, firm, association, organization, individual, governmental instrumentality or entity, or other person or entity, (2) the term “Voting Stock” shall mean, as to any Person, the then-outstanding securities of or other interests in such corporation entitled to vote generally in the election of directors, trustees or similar managers of such Person, and (3) the term “Change in

 

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Control” shall mean:

 

(a) The Company is merged, consolidated or reorganized into or with another corporation or other Person, or the stockholders of the Company approve such a merger, consolidation or reorganization, and as a result of such merger, consolidation or reorganization, the holders of the Voting Stock of the Company immediately prior to such transaction hold or would hold in the aggregate less than seventy percent (70%) of the combined voting power of the then-outstanding Voting Stock of the surviving corporation or Person immediately after such transaction; or

 

(b) The Company sells or otherwise transfers all or substantially all of its assets to another corporation or other Person, or the stockholders of the Company approve such a sale or transfer, and either (x) as a result of such sale or transfer, the holders of the Voting Stock of the Company immediately prior to such sale or transfer hold or would hold in the aggregate less than seventy percent (70%) of the combined voting power of the then-outstanding Voting Stock of such corporation or Person immediately after such sale or transfer, or (y) such corporation or Person does not assume all of the Company’s obligations to the Employee pursuant to an instrument in form and substance reasonably satisfactory to the Employee; or

 

(c) The Company is liquidated or dissolved, or the stockholders of the Company approve such a liquidation or dissolution; or

 

(d) Any Person or “group” [as the term “group” is used in Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)] becomes, or a report is filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Exchange Act, disclosing that any Person or “group” (as the term “group” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become, the beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any successor rules or regulations promulgated under the Exchange Act) of securities representing thirty percent (30%) or more of the combined voting power of the then outstanding Voting Stock of the Company or fifty percent (50%) or more of the then outstanding shares of Voting Stock of the Company; or

 

(e) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, form, report or item therein) that a change in control of the Company has occurred or will occur in the future pursuant to any then-existing contract or transaction; or

 

(f) If, during any period of two consecutive years, individuals who at the beginning

 

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of any such period constitute the Directors of the Company cease for any reason to constitute at least a majority thereof; provided, however, that for purposes of this clause (f), each Director who is first elected, or first nominated for election by the Company’s  stockholders, by a vote of at least two-thirds of the Directors of the Company then still in office who were Directors of the Company at the beginning of any such period (other than an election or nomination of any individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company, as such terms are used in Rule 14a-11 or any successor rule or regulation promulgated under the Exchange Act) will be deemed to have been a Director of the Company at the beginning of such period.

 

Section 8.  Confidential Information.  The Employee recognizes and acknowledges that certain proprietary, non-public information owned by the Company and its affiliates, including without limitation proprietary, non-public information regarding customers, pricing policies, methods of operation, proprietary computer programs, sales products, profits, costs, markets, key personnel, technical processes, and trade secrets (hereinafter called “Confidential Information”), are valuable, special and unique assets of the Company and its affiliates.  The Employee will not, during or after his term of employment, without the prior written consent of a member of the Board believed by the Employee to have been authorized by the Board for such purpose, knowingly and intentionally disclose any of the Confidential Information obtained by him while in the employ of the Company to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, directly or indirectly (other than to an employee of the Company of its affiliates, a director of the Company or its affiliates, or a person to whom disclosure is necessary or appropriate in the Employee’s good faith judgment in connection with the performance of his duties hereunder or otherwise on behalf of the Company), unless and until such Confidential Information becomes publicly available (other than as a consequence of the breach by the Employee of his confidentiality obligations under this Section 8), and except as may be required (or as the Employee may be advised by counsel is required) in connection with any judicial, administrative or other governmental proceeding or inquiry.  In the event of the termination of his employment, whether voluntary or involuntary and whether by the Company or the Employee, the Employee will deliver to the Company and will not take with him any documents, or any other reproductions (in whole or in part) of any items, comprising Confidential Information (except that the Employee may retain his personal address, telephone and other contact lists and information and any other documents or reproductions retained upon the advice of counsel).  Notwithstanding any other provision hereof, the term “Confidential Information” does not include any information that (a) is or becomes publicly available other than as the result of the breach by the Employee of his confidentiality obligations under this Section 8, (b) became, is or becomes available to the Employee on a non-confidential basis from a source, other than the Company, that to the Employee’s

 

10



 

knowledge is not prohibited from disclosing such information to the Employee by a confidentiality obligation owed to the Company or (c) was known to the Employee prior to becoming an officer of the Company.  The provisions of this Section 8 shall expire and be of no further force and effect on the third anniversary of the date of termination of the Employee’s employment with the Company.

 

Section 9.  Non-Competition.  The Company promises that during the term of this Agreement and before the Company can exercise any right to terminate the Employee’s employment without cause, the Company shall provide the Employee with Confidential Information that the Employee did not possess and had not received prior to the execution of this Agreement.  In exchange for and ancillary to the Company’s enforceable promise to provide him with that Confidential Information, the Employee agrees that he will not disclose or make improper use of any of the Confidential Information.  In order to enforce that promise by the Employee, he agrees to the provisions of this Section 9.  Accordingly, during his employment with the Company pursuant to this Agreement and for a period of two (2) years thereafter, the Employee will not knowingly and intentionally (i) engage, directly or indirectly, alone or as a partner, officer, director, employee, or consultant of any other business organization, in any business activities that are substantially and directly competitive with the business activities then conducted by the Company anywhere in the world (the “Designated Industry”), (ii) divert to any competitor of the Company in the Designated Industry any customer of the Company or (iii) solicit or encourage any officer, employee, or consultant of the Company to leave its employ for employment by or with any competitor of the Company in the Designated Industry.  The parties hereto acknowledge that the Employee’s non-competition obligations hereunder will not preclude the Employee from (i) owning less than 5% of the common stock of any publicly traded corporation or other Persons conducting business activities in the Designated Industry or (ii) serving as a director of a corporation or other Person engaged in the manufacturing or electronics industry whose business operations are not substantially and directly competitive with those of the Company.

 

Section 10.  Arbitration.

 

(a) Subject Claims; Initiation of Binding Arbitration. The Company and the Employee agree that all (i) disputes and claims of any nature that the employee may have against the Company and any subsidiaries or affiliates and their officers and employees, including all federal or state statutory, contractual, and common law claims (including all employment discrimination claims) arising from, concerning, or relating in any way to our employment relationship, (ii) all disputes and claims of any nature that the Company may have against the Employee, or (iii) any dispute among us about the arbitrability of any claims or controversy will be resolved out of court.  Any such claims will be submitted

 

11



 

exclusively first to mandatory mediation and, if mediation is unsuccessful, to mandatory arbitration.

 

(b) Arbitration Procedure.  Unless otherwise agreed in writing by the Company and the Employee, any arbitration proceeding will be held in Houston, Texas.  The arbitration will be conducted under the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“AAA” Rules).  The claim will be submitted to a single experienced, neutral employment arbitrator selected in accordance with the AAA Rules.  The arbitrator shall have full authority to award or grant all remedies provided by law.  The arbitrator shall have full authority to permit adequate discovery.  At the conclusion of the arbitration proceeding, the arbitrator shall issue a written, reasoned award.  The award of the arbitration shall be final and binding.  A judgment upon the award may be entered and enforced by any court having jurisdiction.  Each party shall pay the fees of their respective attorneys, the expenses of their witnesses, and any other expenses incurred by such party in connection with the arbitration, provided, however, that the Company shall pay for the fees of the arbitrator and the administrative and filing fees charged by the AAA.

 

(c) Confidentiality; Nonjoinder. All information regarding the dispute or claim or mediation or arbitration proceedings, including the mediation settlement or arbitration award, will not be disclosed by the Employee or by the Company or any mediator or arbitrator to any third party without the written consent of the Employee and the Company.  In no event may an arbitrator allow any party to join claims of any other employee in a single arbitration proceeding without consent of the Employee and the Company.  In the event that the dispute or claim involves a written agreement between the Employee and the Company (including this Agreement) or a compensation plan, the arbitrator will have no authority to add to, detract from, or otherwise modify the agreement or plan provisions other than as expressly set forth in that agreement or plan.  Should this arbitration agreement conflict with the arbitration provisions of any other agreement that the Employee has with the Company, the terms of this agreement will govern.

 

(d) Equitable Relief.  In the event that irreparable injury could occur during the pendency of a mediation or arbitration proceeding, to restore or maintain the status quo until the dispute has been resolved by mediation or arbitration a party may apply to a court of competent jurisdiction to obtain a temporary or preliminary injunction in aid of mediation and arbitration.

 

(e) Binding Agreement.  Notwithstanding any policy of the Company permitting it to alter its policies, procedures, and the terms and conditions of employment, this agreement to arbitrate is binding and cannot be modified or superseded except by a written

 

12



 

agreement signed by an authorized representative of the Company and the Employee.

 

13



 

Section 11.  General.

 

(a) Notices.  All notices and other communications hereunder will be in writing, and will be deemed to have been duly given if delivered personally, or three (3) business days after being mailed by certified mail, return receipt requested, or upon receipt if sent by written telecommunications, to the relevant address set forth below, or to such other address as the recipient of such notice or communication will have specified to the other party hereto in accordance with this Section 11(a):

 

If to Company, to:

 

Benchmark Electronics, Inc.

3000 Technology Drive

Angleton, Texas 77515

Attn: Corporate Secretary

Fax No.: 979/848-5269

 

If to Employee, to:

 

Cary T. Fu

3214 Creekstone

Sugar Land, Texas 77479

 

(b) Withholding; No Offset.  All payments required to be made by the Company under this Agreement to the Employee will be subject to the withholding of such amounts, if any, relating to federal, state and local taxes as may be required by law.  No payment under this Agreement will be subject to offset or reduction attributable to any amount of obligation the Employee may owe or be liable for to the Company or any other Person.

 

(c) Equitable Remedies.  Each of the parties hereto acknowledges and agrees that upon any breach by the Employee of his obligations under any of Sections 8 and 9 hereof, the Company will have no adequate remedy at law, and accordingly will be entitled to specific performance and other appropriate injunctive and equitable relief.

 

(d) Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part hereof; and the remaining provisions hereof will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom.  Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there

 

14



 

will be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

 

(e) Waivers.  No delay or omission by either party hereto in exercising any right, power or privilege hereunder will impair such right, power or privilege, nor will any single or partial exercise of any such right, power or privilege preclude any further exercise of any other right, power or privilege.

 

(f) Counterparts.  This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument

 

(g) Captions.  The captions in this Agreement are for convenience of reference only and will not limit or otherwise affect any of the terms or provisions hereof.

 

(h) Reference to Agreement.  Use of the words “herein”, “hereof”, and “hereto” and the like in this Agreement refer to this Agreement only as a whole and not to any particular Section, subsection or provision of this Agreement, unless otherwise noted.  Any reference to a “Section” or “subsection” shall refer to a Section or subsection of this Agreement, unless otherwise noted.

 

(iSuccessors and Binding Agreement.  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Employee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place.  This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any Persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization, or otherwise ( and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but shall not otherwise be assignable, transferable, or delegable by the Company.  Without limiting the foregoing, the surviving or transferee corporation or other person in any such transaction (whether by merger, consolidation, reorganization, transfer of business or assets, or otherwise) shall be subject to the provisions of Section 7 hereof and shall be deemed to be the Company for purposes of such provisions, regardless of whether such transaction itself constituted a Change of Control of the Company.

 

15



 

(j) Entire Agreement; Amendments and Waivers.  This Agreement contains the entire understanding of the parties, and supersedes all prior agreements and understandings between them, relating to the subject matter hereof including that certain Employment Agreement between the parties dated August 1, 2001.  This Agreement may not be amended or modified except by a written instrument hereafter signed by each of the parties hereto, and may not be waived except by a written instrument hereafter signed by the party granting such waiver.  The Company has not made any promise or entered into any agreement that is not expressed in this Agreement, and the Employee is not relying upon any statement or representation of any agent of the Company.  In executing this Agreement, the Employee is relying solely on his judgment and has been represented by the legal counsel of his choice in connection with this Agreement who has read and explained to the Employee the entire contents of this Agreement, as well as explained the legal consequences.  No agreements or representation, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement.

 

(k) Governing Law.  This Agreement and the performance hereof shall be governed and construed in all respects, including but not limited to as to validity, interpretation and effect, by the laws of the State of Texas, without regard to the principles or rules of conflict of laws thereof.

 

16



 

Executed as of the date and year first above written.

 

 

Benchmark Electronics, Inc.

 

 

 

 

 

By:

/s/ Donald E. Nigbor

 

 

Donald E. Nigbor

 

Chairman

 

 

 

Employee

 

 

 

 

 

/s/ Cary T. Fu

 

 

Cary T. Fu

 

November 11, 2005

 

 

 

 

 

 

17


 

 

 

EX-10.1 2 v239822_ex10-1.htm EXHIBIT 10.1

 

EMPLOYMENT TERMINATION

 AND

SETTLEMENT AGREEMENT

 

THIS AGREEMENT (the “Agreement”) is entered into on this 8th day of November, 2011 by and between Benchmark Electronics, Inc., a Texas corporation with a principal place of business at 3000 Technology Drive, Angleton, Texas 77515 (the “Company”), and Cary T. Fu, whose street address is 3214 Creekstone, Sugar Land, Texas 77479 (the “Executive”).

 

WHEREAS, the Executive has been employed by the Company pursuant to the terms of an Employment Agreement dated January 1, 2006, by and between the Company and the Executive (the “Employment Agreement”); and

 

WHEREAS, the Company and the Executive have mutually agreed that the Employment Agreement, and the Executive’s employment with the Company, shall terminate and Executive shall resign, effective as of December 31, 2011 (the “Termination Date”); and

 

WHEREAS, the Company and the Executive now wish to fully and completely settle, compromise and dispose of all claims which could have been asserted based on the Employment Agreement and otherwise, and further, the Company and Executive wish to set forth in this Agreement all of their respective rights and obligations resulting from such termination of employment and the termination of the Employment Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants between the parties, the sufficiency of which is hereby acknowledged, the Company and Executive hereby agree to the following terms and conditions (which also include the above-referenced recitals):

 

1.   Termination of Employment Agreement.  The Company and the Executive each acknowledge and agree that the Executive’s employment with the Company and its Affiliates shall terminate as of the Termination Date, and that the Employment Agreement shall terminate and be of no further force and effect as of the Termination Date.  For purposes of this Agreement, the term “Affiliate” includes all of the Company’s direct and indirect subsidiaries and any other entities that directly or indirectly, through one or more intermediaries, control, are controlled by or are under common control with the Company.  Executive agrees to resign from any officer positions he may hold       with the Company or any of its Affiliates and the Executive agrees to resign as a director of the Company in accordance with Paragraph 3(c) and any of its Affiliates and to sign any documentation necessary to give effect to this Paragraph 1.

 

2.   Payments and Consulting Agreement. The Company and Executive agree that: (1) the Company shall pay Executive a lump sum payment equal to $775,000.00  which shall be paid on December 30, 2011; (2) the Company and Executive shall enter into a Consulting Services and Non-Compete Agreement (“Consulting Agreement”) in the form attached hereto as Addendum A which shall be executed contemporaneously with this Agreement; (3) the Company shall pay Executive any earned but unpaid bonus for calendar year 2011 owing to Executive, which shall be paid in 2012 at the time when other Company executives are paid; and (4) the Company shall provide the Executive with the benefits described in paragraphs 3(a) and 3(b) below (together with the payments set forth in clauses (1) and (3), the “Benefits”).   The parties specifically intend that Executive is to perform services under the Consulting Agreement as an independent contractor to the Company.  The parties agree that if any conflict or inconsistency exists between this Agreement and the Consulting Agreement, the language of this Agreement will control.  Neither Executive nor any agent or employee of Executive shall be deemed to be the agent, employee, partner or joint venture of the Company.  Nothing in this Agreement, or otherwise, creates or shall be construed to create the relationship of master and servant or employer and employee between the Company and Executive after the Termination Date. Executive acknowledges that from and after that date he will have absolutely no authority to represent, contract on behalf of, or obligate the Company.  Executive is not required to provide any such services or assistance after the final payment under this Agreement.

 

 

Page 1 of 10


 

 

3.  Benefits and Other Agreements. The Company and the Executive will be subject to the following:

 

(a)  Bridge of Health Benefits to Medicare.  The Company will provide the Executive with a cash sum, payable in one installment on January 2, 2012, such sum equal to the estimated company medical coverage contributions as of the date hereof, for the Executive and his spouse’s participation in a plan comparable to the Company’s plan available to Company employees from the Termination Date until the Executive and his spouse reach Medicare eligibility.  In lieu of reimbursing for such comparable coverage, Executive has elected to receive the cash payment described above.  This sum is described in Addendum B.

 

(b)  Extension of Exercise Period for Vested Stock Options.  The Company will extend the exercise period for all stock options granted to Executive and fully vested prior to the Termination Date, such extension equal to twenty four (24) months after the Termination Date, allowing Executive to exercise any and all vested shares subject to any and all stock options granted to Executive (provided that any such extension shall not extend the maximum term during which any such option may be exercised beyond ten (10) years).    A description of Executive’s stock options applicable to this Paragraph 3(b) is provided in Addendum C.

 

(c)   Retirement from Board; other benefits.  As of the Termination Date, Executive will offer his resignation pursuant to the Company’s Governance Guidelines, and the Company agrees that the Executive will retain the title, duties and responsibilities of Director and Chairman of the Board until December 31, 2012 (subject to the Executive’s re-election to the board of directors by the shareholders of the Company at the Annual Shareholder’s Meeting in May 2012).  During the period from January 1, 2013 until January 1, 2015, Executive will serve in an honorary position with the Company, in the position of Chairman Emeritus.  From the Termination Date through January 1, 2015, Executive will not be an employee and will have no duties or responsibilities as an employee other than providing assistance as requested by the Company and agreed to by the Executive.  Also, during the time that Executive serves as Chairman Emeritus, the Company in its discretion will: (1) invite Executive to all or part of one or more meetings or informal gatherings of the Board of Directors; (2) maintain reasonable Company telephone and e-mail privileges; (4) provide Executive with appropriate business cards; and (5) upon Executive’s request, provide Executive with reasonable IT support.

 

 

Page 2 of 10


 

 

(d)   Certain Violations. The Executive’s violation of any of the provisions of the Employment Agreement through the Termination Date shall, in addition to any other remedy, result in a cessation of all benefits and other rights of the Executive hereunder. The Company may offset any amounts payable under this Agreement against any amounts payable by the Executive to the Company.  The Company will provide the Executive with written notice of the reason for any offset and Executive will have 45 days from receipt of this written notice to remedy said violation before any such suspension or offset of payments shall occur.

 

4.  No Further Compensation.  The Executive acknowledges and agrees that other than the compensation described in Section 2 above and the Benefits described in Section 3 above, no further compensation or benefits or other monies are owed to the Executive by the Company arising out of the Employment Agreement, this Agreement or otherwise on account of his employment or termination of employment with the Company and its Affiliates.

 

5.  Restrictions.

 

(a)  Nondisclosure. The Executive shall not at any time divulge, communicate, use to the detriment of the Company or for the benefit of any other person or persons, or misuse in any way, any Confidential Information (as hereinafter defined) pertaining to the business of the Company.  Any Confidential Information or data now or hereafter acquired by the Executive with respect to the business of the Company (which shall include, but not be limited to, information concerning the Company’s financial condition, prospects, technology, customers, suppliers, sources of leads and methods of doing business) shall be deemed a valuable, special and unique asset of the Company that was received by the Executive in confidence and as a fiduciary, and Executive shall remain a fiduciary to the Company with respect to all of such information.  For purposes of this Agreement, “Confidential Information” means information disclosed to the Executive or known by the Executive as a consequence of or through his employment by the Company or during his service as a consultant to the Company (including information conceived, originated, discovered or developed by the Executive) prior to or after the date hereof, and not generally known, about the Company or its business. Notwithstanding the foregoing, nothing herein shall be deemed to restrict the Executive from disclosing Confidential Information to the extent required by law.

 

(b)  Noncompetition. During his remaining employment and for the three (3) year period that immediately follows the Termination Date, the Executive shall not do any of the following, either directly or indirectly, during the period of time consisting of three (3) years from the Termination Date but only to the extent the Company complies with its payment obligations hereunder (the “Applicable Non-Competition Period”), anywhere in the world: directly or indirectly, own any interest in, manage, operate, control, consult for, be an officer or director of, work for, or be employed in any capacity by, any sole proprietorship, corporation, company, partnership, association, venture or business any company or any other business, entity, agency or organization (whether as an employee, officer, director, partner, agent, security holder, creditor, consultant or otherwise) that directly or indirectly (or through any affiliated entity) engages in Competitive Activity; provided that such provision shall not apply to the Executive’s ownership of securities of the Company or the acquisition by the Executive, solely as an investment, of securities of any issuer that is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed or admitted for trading on any United States national securities exchange.  For purposes of this Agreement, “Competitive Activity” shall mean any activity relating to, in respect of or in connection with, directly or indirectly, the contract electronic manufacturing services (EMS) business, including but not limited to original design manufacturing services that compete with EMS business.  Notwithstanding the foregoing, Executive may serve as a director of another company that may engage in Competitive Activity as long as Executive receives the Company’s prior written consent to such service.  In the event that Executive improperly competes with the Company in violation of this Section 5, the period during which he engages in such competition shall not be counted in determining the Applicable Non-Competition Period.

 

 

Page 3 of 10


 

 

6.  Mutual Releases.

 

(a)  In consideration of the promises and undertakings contained in this Agreement, the Company for itself and for each its Affiliates, divisions, predecessors, successors, assigns, employees, insurers, directors, officers, shareholders, agents, attorneys, representatives, owners, managers, contractors and their employees, contractors, subcontractors and their employees, does hereby forever generally,  completely and absolutely release and discharge the Executive of and from any and all claims, demands, actions, choices in action, obligations, liabilities and damages of every kind and nature whatsoever, in law or equity, whether as of this date known or unknown, asserted or unasserted, which any such person or entity may now have or may claim to have in the future, due to, arising from, or based in whole or in part upon, any act,  omission, event, transaction, matter or thing involved, alleged or referred to, or arising directly or indirectly from or in connection with, any of the past transactions, agreements, understandings, associations, relationships and/or courses of dealings between the Company and Executive.

 

(b)  In consideration of the promises and undertakings contained in this Agreement, the Executive does hereby forever generally, completely and absolutely release and discharge the Company and each of its Affiliates, divisions, predecessors, successors, assigns, employees, insurers, directors, officers, shareholders, agents, attorneys, representatives, owners, managers, contractors and their employees, contractors, subcontractors and their employees, of and from any and all claims, demands, actions, choices in action, obligations, liabilities and damages of every kind and nature whatsoever, in law or in equity, whether as of this date known or unknown, asserted or unasserted, which any such person or entity may now have or may claim to have in the future, due to, arising from, or based in whole or in part upon, any act, omission, event, transaction, matter or thing involved, alleged or referred to, or arising directly or indirectly from or in connection with, any of the past transactions, agreements, understandings, associations, relationships and/or courses of dealings between the Company and Executive.  Without limiting the generality of the foregoing release, the release in this Paragraph 6(b) shall include: (i) all claims or potential claims arising under any federal, state or local laws relating to the parties' employment relationship, including any claims Executive may have under the Civil Rights Acts of 1866, 1964, and 1991, as amended, 42 U.S.C. §§ 1981 and 2000(e) et seq.; the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621 et seq.; the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12,101 et seq.; the Fair Labor Standards Act 29 U.S.C. §§ 201 et seq.; the Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101 et seq.; and any other federal, state or local law governing the parties' employment relationship; (ii) any claims on account of, arising out of or in any way connected with Executive’s employment with the Company or leaving of that employment; (iii) any claims al1eged or which could have been al1eged in any charge or complaint against the Company; (iv) any claims relating to the conduct of any employee, officer, director, agent or other representative of the Company; (v) any claims of discrimination, harassment or retaliation on any basis; (vi) any claims arising from any legal restrictions on an employer's right to separate its employees; (vii) any claims for personal injury, compensatory or punitive damages or other forms of relief; and (viii) all other causes of action sounding in contract, tort or other common law basis, including (a) the breach of any alleged oral or written contract, (b) negligent or intentional misrepresentations, (c) defamation, (d) wrongful discharge, (e) interference with contract or business relationship or (f) negligent or intentional infliction of emotional distress.

 

 

Page 4 of 10


 

 

(c)  The parties agree that the foregoing provisions of release are contractual and are not mere recitals.

 

(d) Notwithstanding anything to the contrary, nothing in this Agreement shall be deemed to release any party from any claims by the other party arising out of or related to this Agreement or the Indemnity Agreement dated June 4, 2003, by and between Executive and the Company, and nothing in this Agreement will limit the protection afforded to Executive through the Company’s Directors’ and Officers’ Liability Insurance policy.

 

7.  Additional Representations and Warranties.  Each party hereto represents and warrants that no promise or inducement has been given to it other than such promises and inducements that are set forth herein and that, in executing this Agreement, it is not relying upon any statement, representation or commitment of any kind not stated herein, and is relying only upon the statements, representations and warranties set forth herein and upon its own, respective, independent investigation, judgment and the advice of its own, respective legal counsel.

 

8.  Other Provisions.

 

   (a)  This Agreement is the entire agreement between and among the parties hereto and no modification hereof shall be effective unless in writing and signed by the party against whom or which it is sought to be enforced. This Agreement supersedes all prior understandings, negotiations and agreements between and among the parties to the extent they are inconsistent with this Agreement.

 

 (b)  The parties acknowledge that each bears co-extensive and identical responsibility for the language and for any ambiguity or alleged ambiguity contained herein.  Any ambiguity will not be construed in favor of or against either party.

 

 

Page 5 of 10


 

 

(c)  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument.

 

(d)  In the event any provision of this Agreement is deemed unenforceable for any reason whatsoever or is deemed unenforceable as against any person or entity for any reason whatsoever, then the remainder of this Agreement shall be enforced as against all other parties and entities, in whole or in part, as permitted by applicable law.

 

(e)  This Agreement shall be governed by the laws of the State of Texas.

 

(f)  Any controversy or claim arising out of or related to this Agreement or the breach thereof shall be settled by arbitration, in accordance with the rules then existing of the American Arbitration Association and judgment upon the award may be entered in any court having jurisdiction thereof.

 

(g)  This Agreement shall be binding upon and shall inure to the benefit of the Executive’s estate, and to all successors, assigns, divisions, estates, Affiliates, attorneys, agents, representatives, employees, directors, officers and shareholders of each party hereto. The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place.  This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any Persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization, or otherwise (and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but shall not otherwise be assignable, transferable, or delegable by the Company.

 

(h)  The Company and Executive agree that they shall execute such further documents and enter into such further agreements and deliver such documents and supply such information that shall be necessary or appropriate or convenient to accomplish the purposes of this Agreement without any other compensation or consideration paid thereto.

 

(i)  The Company and Executive respectively represent and warrant that  they have not heretofore assigned or transferred, or attempted to assign or transfer, to any person, firm, corporation or other entity any of the claims which are intended to be released and discharged pursuant to this Agreement.

 

 

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(j)  Executive acknowledges that he has been advised by the Company to consult with a tax advisor or attorney with respect to the tax consequences, if any, of this Agreement.

 

(k)  The Company and Executive expressly understand and agree that the consideration paid hereunder is for the settlement and release of all claims and allegations which could have been made as a result of disputes under the Employment Agreement and that each party has consulted and been advised by its counsel that there may be claims that are unknown which each party is agreeing to forego by signing this Agreement.

 

(l)   The Company and Executive agree that this Agreement shall not become effective and enforceable until the date this Agreement is signed by both parties or seven (7) calendar days after its execution by Executive, whichever is later.  Executive may revoke this Agreement for any reason by providing written notice of such intent to the Company within seven (7) days after he has signed this Agreement.  The parties acknowledge that it is their mutual and specific intent that this Agreement fully comply with the requirements of the Older Workers Benefit Protection Act (29 U.S.C. § 626) and any similar law governing release of claims.  Accordingly, Executive hereby acknowledges that: (a) he has carefully read and fully understands all of the provisions of this Agreement and that he has entered into this Agreement knowingly and voluntarily; (b) the benefits of Paragraph 3 offered in exchange for Executive’s release of claims exceed in kind and scope that to which he would have otherwise been legally entitled; (c) prior to signing this Agreement, Executive had been advised, and is being advised by this Agreement, to consult with an attorney of his choice concerning its terms and conditions; and (d) he has been offered at least twenty-one (21) days within which to review and consider this Agreement.

 

 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below in their respective acknowledgments intending that this Agreement be effective as of the date first written above.

 

EXECUTIVE

 

COMPANY

 

 

 

 

 

 

 

 

 

/s/ Cary T. Fu

 

/s/ Gayla Delly

 

Cary T. Fu

 

Gayla Delly

 

 

 

President

 

 

 

Benchmark Electronics, Inc.

 

 

 

 

 

Date: November 8, 2011

 

Date: November 8, 2011

 

 

 

Page 7 of 10


 

 

ADDENDUM A

 

CONSULTING SERVICES AND NON-COMPETE AGREEMENT

 

 

Page 8 of 10


 

 

ADDENDUM B

 

CASH PAYMENT IN LIEU OF HEALTH CARE BRIDGE

 

Comparable Plan Costs Per Month

 

Less Executive’s Contribution Per Month

 

Months to Age 65

 

Total Payment (paid on January 2, 2012)

 

$1,028.11

 

$111.01

 

18

 

$27,513.00

 

 

 

Page 9 of 10


 

 

ADDENDUM C

 

EXECUTIVE’S AVAILABLE STOCK OPTIONS

 

Grant Date

 

Expiration

Date

 

Plan ID

 

Grant Type

 

Granted

 

 

Grant

Price

 

 

Exercisable

 

8/1/2002

 

8/1/2012

 

2000

 

ISO

 

 

8,737

 

 

$

11.4445

 

 

 

8,737

 

8/1/2002

 

8/1/2012

 

2000

 

NQ

 

 

103,762

 

 

$

11.4445

 

 

 

103,762

 

12/11/2003

 

12/11/2013

 

2000

 

NQ

 

 

75,000

 

 

$

24.1333

 

 

 

75,000

 

11/30/2004

 

11/30/2014

 

2000

 

NQ

 

 

75,000

 

 

$

23.3667

 

 

 

75,000

 

1/10/2006

 

1/10/2016

 

2000

 

NQ

 

 

75,000

 

 

$

23.2200

 

 

 

75,000

 

11/15/2006

 

11/15/2016

 

2000

 

NQ

 

 

50,000

 

 

$

26.8400

 

 

 

50,000

 

12/5/2007

 

12/5/2017

 

2000

 

NQ

 

 

50,000

 

 

$

17.2200

 

 

 

50,000

 

12/10/2008

 

12/10/2018

 

2000

 

NQ

 

 

100,000

 

 

$

12.6400

 

 

 

50,000

 

12/9/2009

 

12/9/2019

 

2000

 

NQ

 

 

90,000

 

 

$

19.1100

 

 

 

45,000

 

Totals

 

 

 

 

 

 

 

 

627,499

 

 

 

 

 

 

 

532,499

 

 

 

Page 10 of 10


 

 

 

 

EX-10.2 3 v239822_ex10-2.htm EXHIBIT 10.2

 

Exhibit 10.2

 

CONSULTING SERVICES AND NON-COMPETE AGREEMENT

 

This Consulting Services Agreement (hereinafter called “Agreement”) effective this 1st day of January 2012 (the “Effective Date”) is between Cary T. Fu, whose street address is Creekstone, Sugar Land, Texas 77479 (hereinafter called “Consultant”), and Benchmark Electronics, Inc., a corporation organized under the laws of the State of Texas, with a principal place of business at 3000 Technology Drive, Angleton, Texas 77515 (hereinafter called “Benchmark”).

 

1. Employment Status

 

1.1 Benchmark retains Consultant as an independent contractor and not as an employee of Benchmark.  Consultant shall not act as an agent for Benchmark and will hold Benchmark harmless from any liability which may arise due to any unauthorized acts he may perform in carrying out this Agreement, or due to his failure to comply with applicable local, state or federal laws or regulations.

 

1.2 Benchmark shall not withhold monies for income tax, social security, unemployment tax, or the like.  Benchmark shall make payments for Consultant’s services to Consultant.

 

1.3 The selection of the details and means by which Consultant fulfills his obligations under this Agreement is the responsibility of Consultant and not of Benchmark, which shall exercise no control in this regard.  Rather, Benchmark shall be entitled only to direct Consultant with respect to the elements of services to be performed by Consultant and the results to be derived by Benchmark; to inform Consultant as to when and where such services shall be performed; and to review and assess the performance of such services by Consultant for the limited purposes of assuring that such services have been performed and confirming that such results were satisfactory.

 

2. Scope of Agreement

 

Consultant shall be responsible for, and shall complete, the projects or services designated from time to time by Benchmark’s CEO (as described on the attached Exhibit A), agreed to by Consultant, and pre-approved in writing by Benchmark’s General Counsel (using the approved form attached as Exhibit B or something substantially similar), within the term of this Agreement.  Consultant shall provide these services at times and places as in his judgment are appropriate and as are required by Benchmark’s management and shall provide his own support services, although Benchmark agrees to loan such work space, telephones or other services as may be available should Consultant deem it necessary to visit Benchmark facilities in the course of carrying out his duties.

 

 

 


 

 

3. Availability of Consultant

 

Consultant shall make his services available to Benchmark upon execution of this Agreement and at agreed-upon times thereafter.  Notwithstanding the foregoing, Consultant’s services may be requested or arranged for in any convenient manner, including by telephone, so long as written confirmation is made within three (3) weeks of the original request.  It is understood that Consultant’s services under this Agreement is part-time (no more than 20 hours per week) and at any given time Consultant may be engaged by another customer or client as long as such customer or client does not compete with Benchmark, and that as a result he/she may not be able to devote full consecutive working days to Benchmark projects.

 

4. Work Product

 

4.1 All projects, services, designs, drawings, inventions, charts, memoranda, manuals, computer programs (including but not limited to source code for such programs), and physical articles and data of every description made by or for Consultant in the performance of this Agreement (hereinafter “Work Product”) is work made for hire and shall be given to and become the property of Benchmark, who shall have sole right, title and interest to such property, and all originals and copies thereof not already in the possession of Benchmark shall be immediately delivered by Consultant to Benchmark upon termination of this Agreement.  Consultant will seek permission from Benchmark should Consultant wish to keep copies of materials for archival purposes.

 

4.2 To the extent that Consultant’s Work Product is copyrightable, Consultant hereby transfers, grants, conveys, assigns and relinquishes exclusively to Benchmark all right title and interest in such Work Product, including all rights in copyright.  Consultant shall perform any acts that may be deemed necessary or desirable by Benchmark to evidence more fully the transfer of ownership of all such Work Product generated or developed hereunder to Benchmark to the fullest extent possible, including, without limitation, the making of further written assignment in a form determined by Benchmark.  To the extent that any preexisting rights are embodied or reflected in the Work Product generated by Consultant hereunder, Consultant hereby grants to Benchmark the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to 1) use, execute, reproduce, display, perform, distribute copies of and prepare derivative works based upon such preexisting rights and any derivative works thereof, and 2) authorize others to do any or all of the foregoing.

 

 

2


 

 

4.3 To the extent the Consultant invents anything or first reduces to practice an invention in the course of performance of this Agreement, the Consultant hereby assigns such invention and any resulting patent to Benchmark and agrees to execute such documents as deemed necessary by Benchmark to assign such invention to Benchmark, and further agrees to do all things necessary to assist Benchmark in applying for any patent on such invention and any resulting patent and make all assignments and execute all documents necessary with regard to the patent application and any resulting patent.

 

4.4 No rights or licenses to trademarks, inventions, copyrights, patents or other intellectual property are implied or granted under this Agreement.  Proprietary Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement.

 

5. Confidential Information

 

5.1 During the term of this Agreement and thereafter, Consultant shall treat as confidential all information obtained by him for and from Benchmark and all information compiled or generated by him under this Agreement for Benchmark including, but not limited to, business information, manufacturing information, technical data, drawings, flow charts, program listings, software code, and other software, plans and projections.  Consultant shall not disclose or refer to the work to be performed under this Agreement in any manner that would identify Benchmark without the advance written permission of Benchmark.

 

5.2 Nothing, however, in this Agreement shall obligate Consultant to treat as confidential any information which:

 

5.2.1 is or becomes generally known to the public, without the fault of the Consultant;

 

5.2.2 is disclosed to Consultant, without obligation of confidentiality, by a third party having the right to make such disclosure;

 

5.2.3 was previously known to Consultant, without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession of Consultant upon the date of this Agreement; or

 

 

3


 

 

5.2.4 is required to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order, provided that Consultant shall promptly advise Benchmark of any requirement to make such disclosure of which he becomes aware of, to allow Benchmark the opportunity to obtain a protective order and assist Benchmark in so doing.

 

5.3 It is Benchmark’s policy not to unlawfully or improperly receive or use confidential information, including trade secrets, belonging to others.  This policy precludes Benchmark from obtaining, directly or indirectly from any employee, consultant, or other individual rendering services to Benchmark confidential information of a prior employer, client or any other person which such employee, consultant, or individual is under an obligation not to disclose.  The Consultant agrees to abide by this policy.

 

6. Payment of Fees and Expenses

 

Benchmark shall pay Consultant for services rendered in accordance with Exhibit A hereto.  In addition to the foregoing, Benchmark shall pay Consultant for his actual expenses (including coach-class travel for domestic flights and business-class travel for international flights, reasonable lodging, food and other related and out-of-pocket expenses) which have been approved in advance by Benchmark’s General Counsel and which are reasonable and necessary.

 

7. Term

 

The term of this Agreement shall commence on the effective date hereof, and unless modified by mutual agreement of the parties or terminated earlier pursuant to the terms of this Agreement, shall continue for two years.  The term may be extended for additional periods by mutual written agreement of the parties.  The obligations of Paragraphs 4; Paragraph 5; obligations to make payments for expenses incurred and work done under Paragraph 6; and Paragraph 9 shall, however, survive termination.

 

 

4


 

 

8. Termination

 

8.1 This Agreement may be terminated by either party upon prior written notice, if the other party materially breaches any term hereof, by giving the breaching party one-month prior written notice of the termination to allow the breaching party to cure the breach.  If the breaching party fails to cure the breach during such one-month period, the Agreement will terminate.

 

8.2 This Agreement may be terminated by either party at any time for any reason upon prior written notice to the other party, provided however, if Benchmark terminates this Agreement pursuant to this Section 8.2, Consultant shall continue to receive the fees detailed in Exhibit A for the remainder of the term.

 

8.2.1 Upon termination of this Agreement for any reason, Consultant shall promptly return to Benchmark all copies of any Benchmark data, records, or materials of whatever nature or kind, including all materials incorporating the proprietary information of Benchmark.  Consultant shall also furnish to Benchmark all Work Product and work in progress or portions thereof, including all incomplete work.

 

8.3 No termination shall affect Benchmark’s or Consultant’s rights and responsibilities under Paragraphs 4, 5 and 6 hereof.

 

8.4 If this Agreement is terminated by the Company pursuant to Section 8.1, Consultant shall be entitled to receive or retain only that portion of the consulting fee specified in Exhibit A (the “Earned Portion”) as is calculated by multiplying the total amount of the consulting fee by a fraction, the numerator of which is the number of whole months elapsed between January 1, 2012 and the effective date of the termination of this Agreement, and the denominator of which is 24.  If the Earned Portion has not yet been paid by the Company, the Company shall promptly pay such amount to the Consultant following termination.  If more than the Earned Portion has been paid to the Consultant, the Consultant shall promptly refund the overpayment to the Company.

 

9. Conflicting Agreements and Non-Competition

 

Prior to and during the term of this Agreement, Consultant shall disclose to Benchmark any existing or proposed agreements to which Consultant is a party and which constitute a potential conflict of interest.  Without the prior written consent of the Company, Consultant agrees that he will not during the three (3) years following the Effective Date of this Agreement directly or indirectly engage in any contract electronics manufacturing services (EMS) business, including but not limited to original design manufacturing services that compete with EMS business, competitive with Benchmark and not solicit, for other than personal use, from any of Benchmark’s clients, customers, suppliers or contacts for the purposes of doing business with such persons or entities and will not interfere with the business relationship between Benchmark and such persons and/or entities.  Notwithstanding the foregoing, Consultant may serve as a director of another company in the EMS business as long as Consultant receives the Company’s prior written consent to such service.

 

 

5


 

 

10. Entire Agreement

 

This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and merges and supersedes all prior and contemporaneous agreements or representations, written or oral.  It may be changed only by an agreement in writing signed by the party against whom enforcement or any waiver, change, modification, extension or discharge is sought and expressly referring to this Agreement.

 

11. Construction

 

This Agreement shall be governed and construed in accordance with the laws of the State of Texas, United States of America.

 

12. Partial Invalidity

 

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

 

13. Warranty

 

Consultant represents and warrants (a) that all services shall be performed in a workmanlike manner and with professional diligence and skill, and (b) that Consultant will perform all work called for in compliance with applicable law.

 

14. Successors and Binding Agreement

 

The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Consultant, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place.  This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any Persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization, or otherwise (and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but shall not otherwise be assignable, transferable, or delegable by the Company.

 

 

6


 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates below written.

 

CONSULTANT

 

 

BENCHMARK ELECTRONICS, INC.

 

 

 

 

 

 

/s/ Cary T. Fu

 

 

/s/ Gayla Delly

 

Cary T. Fu

 

 

Gayla Delly

 

 

 

 

President

 

 

 

 

 

 

Date: November 8, 2011

 

 

Date: November 8, 2011

 

 

 

7


 

 

CONSULTING SERVICE AGREEMENT

 

Exhibit A

 

For Internal Use Only

 

Requisition #:

 

Job Code:

 

Job Title:

 

Supervisor:

 

Department:

 

Business Unit:

 

 

DESCRIPTION OF SCOPE OF WORK AND PAYMENT OF FEES AND EXPENSES

 

 

1. 

With respect to Section 2 of the Agreement, Consultant shall provide services as described below:

 

 

· 

Under specific assignment by the CEO and agreed upon by Consultant, represent the Company’s interests before customers, suppliers, government officials, and others as designated by the CEO; Consultant agrees that from time to time, at reasonable times and upon reasonable advance notice from the Company, he will respond within a reasonable time to answer questions or other inquiries from the Company and advise the Company as reasonably requested by the Company. In addition, subject to the oversight and review by the Company’s Board of Directors and its CEO, Consultant agrees to (i) assist the Company in obtaining financing relating to business operations and acquisitions and assist with any subsequent negotiations with lenders; (ii) assist the Company in developing tax planning strategies; (iii) assist the Company with filings required under and compliance with applicable federal securities laws; (iv) assist the Company with preparation of its internal and public financial statements, budgets and other financial planning processes; and (v) provide and assist in such other services as may be reasonably requested by the Company. and

 

 

· 

Perform other such duties as may be requested from time to time by the CEO.

 

 

2. 

With respect to Section 6 of the Agreement, the following procedures apply:

 

In consideration of the services to be performed by Consultant, Benchmark shall pay Consultant $775,000.00 in the aggregate, which shall be payable in one lump sum on December 30, 2012.  Benchmark shall provide reasonable telephone, laptop computer, and e-mail support during the term of this Agreement.  Consultant and Benchmark agree to make an estimate of hours prior to initiation of work defined in (1) above.  Consultant will inform Benchmark if work identified in (1) above is to exceed the projected hours prior to exceeding any estimate.  Authorization to exceed estimate is valid only with prior written consent by Benchmark’s General Counsel.

 

 

8


 

 

CONSULTING SERVICE AGREEMENT

Exhibit B

 

 

9