CONSULTING SERVICES AGREEMENT
Exhibit
10.2
This
Consulting Services Agreement (hereinafter called “Agreement”) effective this
1st
day of
December 2008 is between ____________, whose street address is
____________________________ (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 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx
00000 (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.
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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 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.
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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;
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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
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, 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 one year. The term may be
extended for additional periods by mutual written agreement of the parties.
The
obligations of Paragraphs 4 and 5, and obligations to make payments for expenses
incurred and work done under Paragraph 6, shall, however, survive
termination.
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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.
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 term of this
agreement directly or indirectly engage in any 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.
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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.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
below written.
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CONSULTANT
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BENCHMARK
ELECTRONICS, INC.
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__________________________________
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_____________________________
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Xxxx
X. Xx
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Chief
Executive Officer
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Date:______________________________
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Date: November
4,
2008
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CONSULTING
SERVICE AGREEMENT
Exhibit
A
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For
Internal Use Only
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Requisition
#:
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Job
Code:
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Job
Title:
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Supervisor:
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Department:
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Business
Unit:
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DESCRIPTION
OF SCOPE OF WORK AND PAYMENT OF FEES AND EXPENSES
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1.
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With
respect to Section 2 of the Agreement, Consultant shall provide
services
as described below:
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·
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.
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2.
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With
respect to Section 6 of the Agreement, the following procedures
apply:
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In
consideration of the services to be performed by Consultant, Benchmark shall
pay
Consultant $___________ in the aggregate, which shall be payable in equal
installments over a __________ month period commencing on December 1, 2008
and
ending on ______________. Benchmark shall provide reasonable telephone 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.
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CONSULTING
SERVICE AGREEMENT
Exhibit
B
Date:
______________________
Description
of
Work:____________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Approved
on this ______ day of _________________, 2008 by:
___________________________________
Name:
Xxxxxxx X. Xxxxxx
Title:
VP, General Counsel
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