EMPLOYMENT AGREEMENT
Employment Agreement, dated as of August 1, 2001 (the "Agreement"), by and
between _____________ (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 ________________.
Section 2. DUTIES. In his capacity as _______________of the Company, the
Employee shall perform such reasonable executive duties as a _____________ 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
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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 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 __________United States
Dollars ($_________), as increased from time to time by the Compensation
Committee of the Board of Directors of the Company (the Compensation Committee).
Commencing in 2002 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, 2002, 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, 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
December 2, 2000, as amended on March 9, 2001, 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 fifty percent (50%) of Base
Salary for each calendar year in the Employment Term if the Company attains
specified financial performance objectives for such year, and an over
achievement bonus opportunity of up to fifty percent (50%) of Base Salary if the
Company exceeds the foregoing financial 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
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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.
(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
mutually selected by the Employee or his representative and the Company), 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 (i) any portion
of the Employee's Base Salary accrued but unpaid through the date of such
termination, (ii) all payments and reimbursements under Section 5 hereof
for expenses incurred
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prior to such termination, and (iii) a prorated annual bonus for the year
of termination equal to fifty percent (50%) 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 fifty percent (50%) of Base Salary, the Employee or his
estate shall be entitled to receive, at the time such bonus would have
normally been payable, 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 clause (iii)
of 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 as the Company's
__________, 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; or (ii) habitual neglect or disregard of his duties as
the Company's ____________that is materially and demonstrably injurious to the
Company, after written notice from the Company stating the duties the Employee
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has failed to perform; or (iii) 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 installments on a
bi-weekly basis with the first payment being made with respect to the
first bi-weekly payroll period for executive employees commencing after
the date of his termination of employment [but not later than fourteen]
(14) days 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 (i) the portion
of the Employee's Base Salary accrued but unpaid through the date of such
termination, (ii) all payments and reimbursements under Section 5 hereof
for expenses incurred prior to such termination and (iii) a prorated
annual bonus for the year of termination equal to fifty percent (50%) 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 fifty percent (50%) of
Base Salary, the Employee (or his estate)
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shall be entitled to receive, and the Company shall pay, at the time the
bonus would have normally been payable, 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 clause (iii) of 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 an 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 installments on a
bi-weekly basis with the first payment being made with respect to the
first bi-weekly payroll period for executive
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employees commencing after the date of his termination of employment [but]
not later than fourteen (14) days 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 (i) the portion
of the Employee's Base Salary accrued but unpaid through the date of such
termination, (ii) all payments and reimbursements under Section 5 hereof
for expenses incurred prior to such termination and (iii) a prorated
annual bonus for the year of termination equal to fifty percent (50%) 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 fifty percent (50%) 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, 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 clause (iii) of 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.
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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, or annual bonus or long-term incentive 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
sixty (60) 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 acquiror 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,
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(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 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
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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 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
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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 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. During his employment with the Company
pursuant to this Agreement, 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 (the "Designated Industry"), (ii)
divert to any competitor of the Company in the Designated Industry any customer
of the Company which diversion has a material adverse effect on 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, which officer, employee or consultant so enters such
competitor's employment and which occurrence has a material adverse effect on
the Company, provided that the Employee shall not be deemed to have breached his
obligations under clause (ii) or (iii) of the preceding sentence if the Employee
takes such action in a good faith belief that such action is in the best
interest of the Company. 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 matters,
claims, rights, and obligations subject to these arbitration provisions consist
of any and all rights, claims and obligations arising out of or relating to this
Agreement or to the Employee's employment as it relates to this Agreement
(collectively, "Subject Claims"). In the event of a dispute between the parties
hereto relating to any Subject Claim, then, upon notice by
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any party to the other party (an "Arbitration Notice") and to the American
Arbitration Association ("AAA"), Houston, Texas, the dispute shall be submitted
to three (3) arbitrators who are independent and impartial, for binding
arbitration in Houston, Texas, in accordance with the AAA's National Rules for
the Resolution of Employment Disputes (the "Rules") as modified or supplemented
hereby. The Company and the Employee agree that the laws of the State of Texas
shall apply. The Company and the Employee further agree that, if the Employee
prevails as to any material issue, the entire costs of such proceedings
(including, without limitation, the Employee's reasonable attorneys fees) shall
be borne by the Company. If the Employee does not prevail as to any material
issues, the parties shall bear their own respective costs and expenses. The
arbitrators' authority shall be to interpret the terms of this Agreement as
applied to the facts of the Employee's employment by the Company (or its
successors) and his rights under this Agreement. The parties agree that they
will faithfully observe the provisions of this Section 10 and the Rules and that
they will abide by and perform any award rendered by the arbitrators in
accordance herewith and therewith. The arbitration shall be subject to the
Federal Arbitration Act, 9 U.S.C. Section 1-16 (or to the principles enunciated
by such Act in the event it may not be technically applicable). The award or
judgment of the arbitrators shall be final and binding on all parties and
judgment upon the award or judgment of the arbitrators may be entered and
enforced by any court having jurisdiction. If any party becomes the subject of a
bankruptcy, receivership or similar proceeding under the laws of the United
States of America, any state or commonwealth or any other national or political
subdivision thereof, then, to the extent permitted or not prohibited by
applicable law, any factual or substantive legal issues arising in or during the
pendency of any such proceeding shall be subject to all of the foregoing
mandatory arbitration provisions and shall be resolved in accordance therewith.
The agreements contained herein have been given for valuable consideration, are
coupled with an interest and are not intended to be executory contracts.
(b) SELECTION OF ARBITRATORS. Promptly after the Arbitration Notice is
given, the AAA will select seven (7) possible arbitrators, to whom the AAA will
give the identities of the parties and the general nature of the controversy. If
any of those arbitrators disqualifies himself or declines to serve, the AAA
shall continue to designate potential arbitrators until the parties have seven
(7) to select from. After the panel of seven potential arbitrators has been
completed, a two-page summary of the background of each of the potential
arbitrators will be given to each of the parties, and the parties will have a
period of ten (10) days after receiving the summaries in which to attempt to
agree upon the arbitrators to conduct the arbitration. If the parties are unable
to agree upon three (3) arbitrators, then one (1) of the parties shall notify
the AAA and the other party, and the AAA will notify each party that it has five
(5) days from the AAA notice to strike two (2) names from the list and advise
the AAA of the two (2) names stricken. After expiration
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of the strike period, if all but three (3) candidates have been stricken, the
remaining three (3) will be the arbitrators, but, if four (4) or more have not
been stricken, the AAA shall select the three (3) arbitrators from those not
stricken. The decision of the AAA with respect to the selection of the
arbitrator will be final and binding in such case.
(c) NO LITIGATION. Unless and only to the extent mandatory arbitration is
validly prohibited or limited by applicable law, statute or regulation, no
litigation or other proceeding may ever be instituted at any time in any court
for the purpose of adjudicating, interpreting or enforcing any of the rights,
duties, liabilities or obligations hereunder of the parties hereto or any of
their respective rights, duties, liabilities or obligations relating to any
Subject Claim, or for the purpose of appealing any decision of an arbitrator,
except a proceeding instituted (i) for the purpose of having the award of
judgment of an arbitrator entered and enforced or (ii) to seek an injunction or
restraining order (but not damages in connection therewith) in circumstances
where such relief is available.
(d) ARBITRATION HEARING. Within ten (10) days after the selection of the
arbitrators, the parties and their counsel will appear before the arbitrators at
a place and time designated by the arbitrators for the purpose of each party
making a presentation and summary of the case. Thereafter, the arbitrators will
set dates and times for additional hearings in accordance with the Rules until
the proceeding is concluded. The desire and goal of the parties is, and the
arbitrators will be advised that their goal should be, to conduct and conclude
the arbitration proceeding as expeditiously as possible. If any part fails to
appear at any hearing, the arbitrators shall be entitled to reach a decision
based on the evidence that has been presented to them by the parties who did
appear.
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: with a copy to:
Benchmark Electronics, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attn: Corporate Secretary
Fax No.: 979/
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If to Employee, to: with copy to:
_____________________
Address
Address
Fax No.:
(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
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.
Page 14 of 16
(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.
(i) 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
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 contain the
entire understanding of the parties, and supersede all prior agreements and
understandings between them, relating to the subject matter hereof. This
Agreement may 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.
(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.
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Executed as of the date and year first above written.
Benchmark Electronics, Inc.
By:__________________________________
Employee
_____________________________________
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