EXHIBIT 4.9
BENCHMARK ELECTRONICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Benchmark Electronics, Inc. Incentive Stock Option Agreement
("Agreement") is between Benchmark Electronics, Inc., a Texas corporation (the
"Company") and ________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, to carry out the purposes of the Benchmark Electronics, Inc. 2000
Stock Awards Plan (the "Plan") by providing an award of an incentive stock
option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended
("Code"), to retain and attract personnel of outstanding ability, and to provide
additional motivation to the employee to continue to exert employee's best
efforts for the success and welfare of the Company and the benefit of the
Company's stockholders, the Committee (as defined in the Plan) has determined
that the Company's interests will be advanced by the issuance to Optionee of an
incentive stock option under the Plan.
NOW THEREFORE, for and in consideration of these premises it is agreed as
follows:
1. OPTION. Subject to the terms and conditions contained herein, the
Company hereby irrevocably grants to Optionee the right and option ("Option") to
purchase from the Company _____________________ (_________) shares of the
Company's common stock, $0.10 par value ("Common Stock"), at a price of
$__________ per share, which is not less than the fair market value of a share
of Common Stock on the Grant Date (as defined in Section 2 below).
2. OPTION PERIOD. The Option herein granted may be exercised by Optionee
in whole or in part at any time during a ten (10) year period (the "Option
Period") beginning on ________________, 2000 (the "Grant Date"), subject to the
limitation that said Option shall not be exercisable for more than a percentage
of the aggregate number of shares offered by this Option determined by the
number of full years of employment with the Company or its Affiliates beginning
on the Grant Date in accordance with the following schedule:
NUMBER OF PERCENTAGE OF
FULL YEARS SHARES PURCHASABLE
------------- ------------------
Less than two 0%
Two 20%
Three 50%
Four or more 100%
Notwithstanding anything in this Agreement to the contrary, the Committee, in
its sole discretion may waive the foregoing schedule of vesting and upon written
notice to the Optionee, accelerate the earliest date or dates on which any of
the Options granted hereunder are exercisable.
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3. PROCEDURE FOR EXERCISE. The Option herein granted may be exercised by
written notice by Optionee to the Secretary of the Company setting forth the
number of shares of Common Stock with respect to which the Option is to be
exercised accompanied by payment for the shares to be purchased, and specifying
the address to which the certificate for such shares is to be mailed. The notice
shall be accompanied by (i) cash, cashier's check, bank draft, postal or express
money order payable to the order of the Company, or other immediately available
funds, or (ii) at the election of the Optionee and agreed to by the Committee,
certificates representing shares of Common Stock theretofore owned by Optionee
duly endorsed for transfer to the Company, or (iii) any combination of the
preceding, equal in value to the aggregate exercise price. Notice may also be
delivered by fax or telecopy provided that the exercise price of such shares is
received by the Company via wire transfer on the same day the fax or telecopy
transmission is received by the Company. As promptly as practicable after
receipt of such written notice and payment, the Company shall deliver to
Optionee certificates for the number of shares with respect to which such Option
has been so exercised, issued in Optionee's name or such other name as Optionee
directs; provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited such
certificates in the United States mail, addressed to Optionee at the address
specified pursuant to this Section 3. The Optionee shall have no rights as
stockholder with respect to any shares of Common Stock until the date of
issuance of a certificate for shares of Common Stock.
4. TERMINATION OF EMPLOYMENT. If the Optionee's employment with the
Company is terminated during the Option Period for any reason other than death
or disability, the unexercisable portion of the Option shall thereupon
terminate. Any exercisable portion of the Option on the date of his termination
of employment may be exercised by the Optionee during a three-month period
beginning on such date, whereupon after the end of such three-month period, the
Option shall terminate; provided, however, that if the Optionee's employment is
terminated because of the Optionee's theft or embezzlement from the Company,
disclosure of trade secrets of the Company, or the commission of a willful,
felonious act while in the employment of the Company, then such exercisable
portion of the Option shall expire upon such termination of employment. In no
event may the Option be exercised after the end of the Option Period.
5. DISABILITY OR DEATH. If the Optionee's employment with the Company is
terminated by his disability or death, the unexercisable portion of the Option
shall thereupon terminate. If the Optionee's employment with the Company is
terminated by his disability or death, any exercisable portion of the Option on
the date of such disability or death thereafter shall be exercisable by the
Optionee, his executor or administrator, or the person or persons to whom his
rights under this Agreement pass by will or by the laws of descent and
distribution, as the case may be, for a period of three months from the date of
the Optionee's disability or death, whereupon, after the end of such three-month
period, the Option shall terminate. In no event may the Option be exercised
after the end of the Option Period. The Optionee shall be deemed to be disabled
if, in the opinion of a physician selected by the Committee, he is incapable of
performing services for the Company by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be
of long, continued and indefinite duration.
6. TRANSFERABILITY. This Option shall not be transferable by Optionee
otherwise than by Optionee's will or by the laws of descent and distribution.
During the lifetime of Optionee, the
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Option shall be exercisable only by him. Any heir or legatee of Optionee shall
take rights herein granted subject to the terms and conditions hereof. No such
transfer of this Option Agreement to heirs or legatees of Optionee shall be
effective to bind the Company unless the Company shall have been furnished with
written notice thereof and a copy of such evidence as the Committee may deem
necessary to establish the validity of the transfer and the acceptance by the
transferee or transferees of the terms and conditions hereof.
7. NO RIGHTS AS STOCKHOLDER. Optionee shall have no rights as a
stockholder with respect to any shares of Common Stock covered by this Option
Agreement until the date of issuance of a certificate for shares of Common Stock
as provided in Section 3 above. Until such time, Optionee shall not be entitled
to dividends attributable to such shares or to vote such shares at meetings of
the stockholders of the Company. Except as provided in Section 8 hereof, no
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash or securities or other property) paid or distributions or other rights
granted in respect of any share of Common Stock for which the record date for
such payment, distribution or grant is prior to the date upon which the Optionee
shall have exercised said Option by written notice and payment to the Company,
as provided hereinabove.
8. CHANGE OF CONTROL.
a. Upon the occurrence of a Change of Control (as defined below), the
Option shall immediately vest and become exercisable, and, the Committee, in its
discretion, may determine to effect one or more of the following alternatives
with respect to the Option: (1) determine a limited period of time for the
exercise of the Option on or before a specified date (before or after such
Change of Control) after which specified date any portion of the Option left
unexercised shall terminate, (2) require the mandatory surrender to the Company
of some or all of the Option held as of a date, before or after such Change of
Control, specified by the Committee, in which event the Committee shall
thereupon cancel the Option and the Company shall pay to Optionee an amount of
cash per share equal to the excess, if any, of the Change of Control Value (as
defined below) of the shares subject to the Option over the exercise price under
the Option for such shares, (3) make such adjustments to the Option as the
Committee deems appropriate to reflect such Change of Control (provided,
however, that the Committee may determine in its sole discretion that no
adjustment is necessary to the Option) or (4) provide that thereafter upon any
exercise of the Option, the Optionee shall be entitled to purchase under the
Option, in lieu of the number of shares of Common Stock then covered by the
Option, the number and class of shares of stock or other securities or property
(including, without limitation, cash) to which the Optionee would have been
entitled pursuant to the terms of the agreement of merger, consolidation or sale
of assets and dissolution if, immediately prior to such merger, consolidation or
sale of assets and dissolution, the Optionee has been the holder of record of
the number of shares of Common Stock then covered by the Option. The provisions
contained in this paragraph shall not alter any rights or terminate any rights
of the Optionee to further payments pursuant to any other agreement with the
Company following a Change of Control.
b. "Change of Control" means the occurrence of any of the following
events: (i) the acquisition by any person or group of persons (as such terms are
defined and used in Sections 3(a)(9 and 14(d)(2), respectively, of the
Securities Exchange Act of 1934, as amended ("1934 Act")) of beneficial
ownership (as defined in Rule 13d-3 issued under the 1934 Act), directly or
indirectly, of securities representing more than fifty percent (50%) of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors
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("Voting Securities") or (ii) individuals who constitute the Board of Directors
of the Company on the date the Plan became effective ("Incumbent Board") cease
for any reason to constitute at least a majority of that Board of Directors of
the Company ("Board"), provided that any person becoming a director subsequent
to the date the Plan became effective whose election or whose nomination for
election by the Company's shareholders was approved by a majority vote of the
directors comprising the Incumbent Board shall be, for purposes of this
Agreement, considered as though he or she were a member of the Incumbent Board;
or (iii) a recapitalization, reorganization, merger, or consolidation with
respect to which those persons (as defined above) who were beneficial owners of
the Voting Securities of the Company immediately prior to such recapitalization,
reorganization, merger, or consolidation do not, following such
recapitalization, reorganization, merger, or consolidation, beneficially own,
directly or indirectly, shares representing more than fifty percent (50%) of the
combined voting power of the Voting Securities of the Company resulting from
such recapitalization, reorganization, merger, or consolidation; or (iv) a sale
of all or substantially all the assets of the Company.
c. "Change of Control Value" shall mean (i) the highest price per
share paid by any person or group of persons who acquires beneficial ownership
of securities representing more than fifty percent (50%) of the Voting
Securities, (ii) the per share price offered to shareholders of the Company in
any merger, consolidation, recapitalization, reorganization, sale of assets or
dissolution transaction resulting in a Change of Control, (iii) the price per
share offered to shareholders of the Company in any tender offer or exchange
offer resulting in a Change of Control, (iv) if a Change of Control occurs other
than in (i) - (iii) above, the Fair Market Value (as defined in the Plan) per
share of the shares into which this Option is exercisable, as determined by the
Committee, whichever is applicable. In the event that the consideration offered
to shareholders of the Company consists of anything other than cash, the
Committee shall determine the equivalent fair value in cash of the portion of
the consideration offered which is other than cash.
9. CHANGES IN CAPITAL STRUCTURE.
a. If, and whenever, prior to the expiration of this Option, the
Company shall effect a subdivision or consolidation by the Company, the number
of shares of Common Stock may be exercised or satisfied under this Option, (i)
in the event of an increase in the number of outstanding shares shall be
proportionately increased, and the purchase price per share shall be
proportionately reduced, and (ii) in the event of a reduction in the number of
outstanding shares shall be proportionately reduced, and the purchase price per
share shall be proportionately increased.
b. If the Company recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise of this Option, the Optionee shall be
entitled to (or entitled to purchase, if applicable) under this Option, in lieu
of the number of shares of Common Stock then covered by this Option, the number
and class of shares of stock and securities to which the Optionee would have
been entitled pursuant to the terms of the recapitalization if, immediately
prior to such recapitalization, the Optionee had been the holder of record of
the number of shares of Common Stock then covered by this Option.
c. In the event of changes in the outstanding Common Stock by reason
of recapitalization, reorganizations, mergers, consolidations, combinations,
exchanges or other relevant changes in capitalization occurring after the Grant
Date and not otherwise provided for by Section
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8 or this Section 9, the Option shall be subject to adjustment by the Committee
at its discretion as to the number and price of shares of Common Stock or other
consideration subject to the Option.
d. The existence of this Option shall not affect in any way the
right or power of the Board or the stockholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in
the Company's capital structure or its business, any merger or consolidation of
the Company, any issue of debt or equity securities ahead of or affecting the
Common Stock or the rights thereof, the dissolution or liquidation of the
Company or any sale, lease, exchange or other disposition of all or any part of
its assets or business or any other corporate act or proceeding.
e. Except as hereinbefore expressly provided, the issuance by the
Company of shares of stock of any class or securities convertible into shares of
stock of any class, for cash, property, labor or services, upon direct sale,
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares of obligations of the Company convertible into such shares
or other securities, and in any case whether or not for fair value, shall not
affect, and no adjustment by reason thereof shall be made with respect to, the
number of shares of Common Stock subject to this Option.
10. COMPLIANCE WITH SECURITIES LAWS. Upon the acquisition of any shares
pursuant to the exercise of the Option herein granted, Optionee (or any person
acting under Section 6) will enter into such written representations, warranties
and agreements as the Company may reasonably request in order to comply with
applicable securities laws or with this Agreement.
11. COMPLIANCE WITH LAWS. Notwithstanding any of the other provisions
hereof, Optionee agrees that he will not exercise the Option(s) granted hereby,
and that the Company will not be obligated to issue any shares pursuant to this
Agreement, if the exercise of the Option(s) or the issuance of such shares of
Common Stock would constitute a violation by the Optionee or by the Company of
any provision of any law or regulation of any governmental authority.
12. WITHHOLDING OF TAX. To the extent that the exercise of this Option or
the disposition of shares of Common Stock acquired by exercise of this Option
results in compensation income to the Optionee for federal or state income tax
purposes, the Optionee shall pay to the Company at the time of such exercise or
disposition such amount of money as the Company may require to meet its
obligation under applicable tax laws or regulations; and, if the Optionee fails
to do so, the Company is authorized to withhold from any cash remuneration then
or thereafter payable to the Optionee, any tax required to be withheld by reason
of such resulting compensation income or Company may otherwise refuse to issue
or transfer any shares otherwise required to be issued or transferred pursuant
to the terms hereof.
13. RESOLUTION OF DISPUTES. As a condition of the granting of the Option
hereby, the Optionee and his heirs and successors agree that any dispute or
disagreement which may arise hereunder shall be determined by the Committee in
its sole discretion and judgment, and that any such determination and any
interpretation by the Committee of the terms of this Agreement shall be final
and shall be binding and conclusive, for all purposes, upon the Company,
Optionee, his heirs and personal representatives.
EX 4.9 - 5
14. LEGENDS ON CERTIFICATE. The certificates representing the shares of
Common Stock purchased by exercise of an Option will be stamped or otherwise
imprinted with legends in such form as the Company or its counsel may require
with respect to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stop-transfer instructions with
respect to such shares.
15. NOTICES. Every notice hereunder shall be in writing and shall be given
by registered or certified mail. All notices of the exercise of any Option
hereunder shall be directed to Benchmark Electronics, Inc., 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxx 00000, Attention: Secretary. Any notice given by the
Company to Optionee directed to him at his address on file with the Company
shall be effective to bind him and any other person who shall acquire rights
hereunder. The Company shall be under no obligation whatsoever to advise
Optionee of the existence, maturity or termination of any of Optionee's rights
hereunder and Optionee shall be deemed to have familiarized himself with all
matters contained herein and in the Plan which may affect any of Optionee's
rights or privileges hereunder.
16. CONSTRUCTION AND INTERPRETATION. Whenever the term "Optionee" is used
herein under circumstances applicable to any other person or persons to whom
this award, in accordance with the provisions of Section 6 hereof, may be
transferred, the word "Optionee" shall be deemed to include such person or
persons. References to the masculine gender herein also include the feminine
gender for all purposes.
17. AGREEMENT SUBJECT TO PLAN. This Agreement is subject to the Plan. The
terms and provisions of the Plan (including any subsequent amendments thereto)
are hereby incorporated herein by reference thereto. In the event of a conflict
between any term or provision contained herein and a term or provision of the
Plan, the applicable terms and provisions of the Plan will govern and prevail.
All definitions of words and terms contained in the Plan shall be applicable to
this Agreement.
18. EMPLOYMENT RELATIONSHIP. Employees shall be considered to be in the
employment of the Company as long as they remain employees of the Company or a
parent or subsidiary corporation (as defined in Section 424 of the Code). Any
questions as to whether and when there has been a termination of such employment
and the cause of such termination, shall be determined by the Committee, and its
determination shall be final. Nothing contained herein shall be construed as
conferring upon the Optionee the right to continue in the employ of the Company,
nor shall anything contained herein be construed or interpreted to limit the
"employment at will" relationship between the Optionee and the Company.
19. BINDING EFFECT. This Option Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
20. NOTICE OF DISPOSITION. If the Optionee disposes of any shares of
Common Stock acquired pursuant to the exercise of the Option prior to the
earlier of (a) two years from the Grant Date or (b) one year from the date that
the shares of Common Stock were acquired, the Optionee shall notify the Company
of such disposition within 10 days of its occurrence and shall deliver to the
Company any amount of federal, state or local income tax withholding required by
law. If the Optionee fails to pay the withholding tax, the Company is authorized
to withhold from any cash
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remuneration then or thereafter payable to the Optionee any tax required to be
withheld by reason of any such disposition.
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IN WITNESS WHEREOF, this Agreement has been executed as of the ____ day of
___________, 200_.
BENCHMARK ELECTRONICS, INC.
By:_________________________________
OPTIONEE
____________________________________
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