EMPLOYMENT TERMINATION AND SETTLEMENT AGREEMENT
Exhibit
10.1
EMPLOYMENT
TERMINATION
AND
SETTLEMENT
AGREEMENT
THIS
AGREEMENT
(the
“Agreement”) is entered into on this ___ day of _______, 2008 by and between
Benchmark Electronics, Inc., a Texas corporation with a principal place of
business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 (the “Company”), and
___________, whose street address is _____________________________________
(the
“Executive”).
WHEREAS,
the
Executive has been employed by the Company pursuant to the terms of an
Employment Agreement dated ________________, 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 1, 2008 (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.
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2.
Payments
under Consulting Agreement.
In
consideration for the termination of the Employment Agreement and for other
good
and valuable consideration, the receipt of which is hereby acknowledged,
the
Company agrees to pay Executive a payment equal to $__________ in the aggregate,
which shall be payable in equal installments over a _________ month period
commencing on December 1, 2008 consistent with the Consulting Agreement
(“Consulting Agreement”) executed contemporaneously with this Agreement, and
attached hereto as Addendum A. 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.
3.
Benefits
and Other Agreements.
In
consideration for the termination of the Employment Letter and for other
good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive agree that the Company shall
provide
the Executive with the following benefits (together with the payments set
forth
in Section 2 hereof, the “Benefits”), in each case reduced by any
applicable employment and withholding taxes:
(a)
Bridge
of Health Benefits to Medicare.
The
Company will provide the Executive with a cash sum, payable in one installment
on January 4, 2010, such sum equal to the estimated company medical coverage
contributions as of the date hereof, for the Executive’s 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 reaches
Medicare eligibility. In lieu of reimbursing for such comparable coverage,
Executive has elected to receive the cash payment described above. This sum,
together with a payment schedule is provided 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 from the Company
Board pursuant to the Company’s Governance Guidelines, and the Company will
agree to allow the Executive to retain the title, duties and responsibilities
of
Director until the first regularly scheduled meeting of the Board of Directors
of the
Company
following the Annual Shareholders Meeting in May 2009 (the “Board Retirement
Date”), at which time Executive will relinquish the title, duties and
responsibilities as Director on the Board, unless Executive is elected to
serve
an additional term on the Board at the Annual Shareholders Meeting. The Company
acknowledges Executive’s desire to serve on the Company Board for at least one
year beyond the Board Retirement Date.
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(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 one 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 one year
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 electronic manufacturing services business. 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.
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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.
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(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.
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.
(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.
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(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 he benefit of all successors,
assigns, divisions, Affiliates, attorneys, agents, representatives, employees,
directors, officers and shareholders of each party hereto.
(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.
(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.
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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
|
|
|
_______________________________
|
____________________________________
|
|
|
Xxxx
X. Xx
|
||
|
Chief
Executive Officer
|
||
|
Benchmark
Electronics, Inc.
|
||
|
Date:___________________________
|
Date:
|
November
4,
2008
|
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ADDENDUM
A
CONSULTING
AGREEMENT
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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
(DOB:
____)
|
Total
Payment (paid on January 4, 2010)
|
|
$
|
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ADDENDUM
C
EXECUTIVE’S
APPLICABLE STOCK OPTIONS
|
Grant
Date
|
Expiration
|
Plan
ID
|
Grant
Type
|
Granted
|
Grant
|
Exercisable
|
|
Date
|
Price
|
|||||
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