EMPLOYMENT AGREEMENT
This
Employment Agreement, dated as of March 10, 2009, (the “Agreement”), is by and
between Xxxxxx X. Xxxx (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 Vice President and Chief Financial
Officer.
Section
2. Duties. In
his capacity as Vice President and Chief Financial Officer of the Company, the
Employee shall perform such reasonable executive duties as a Vice President and
Chief Financial Officer would normally perform or as otherwise specified in the
By-laws of the Company, and such other reasonable executive duties as the Board
of Directors of the Company may from time to time reasonably prescribe with the
concurrence of the Employee. Except as otherwise provided herein,
except as may otherwise be approved by the Board of Directors of the Company,
and except during vacation periods and reasonable periods due to sickness,
personal injury or other disability, the Employee agrees to devote substantially
all of his available time to the performance of his duties to the Company
hereunder, provided that nothing contained herein shall preclude the Employee
from (i) serving on the board of directors of any business or corporation on
which he is serving on the date hereof or, with the consent of the Board of
Directors, serving on the board of directors of any other business or
corporation, (ii) serving on the board of, or working for, any charitable or
community organization, and (iii) pursuing his personal financial and legal
affairs so long as such activities do not materially interfere with the
performance of the Employee’s duties hereunder.
Section
3. Term. Except
as otherwise provided herein, the term of this Agreement shall be for one (1)
year (the “Initial Term”), commencing on the date of this
Agreement. This Agreement shall be automatically renewed thereafter
for successive one (1) year terms (each such renewal term, a “Renewal Term”),
unless either party gives to the other written notice of termination no fewer
than ninety (90) days prior to the expiration of any such Renewal Term, which
notice shall expressly refer to this Section 3 of the Agreement and state that
such party does not wish to extend this Agreement (any 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.
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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 Three Hundred Thousand United
States Dollars ($300,000), as increased from time to time by the
Compensation Committee of the Board of Directors of the Company (the
“Compensation Committee”). Commencing in 2006 and from time to time
at least annually thereafter, the Compensation Committee shall review and
evaluate the annual base salary of the Employee in accordance with its standard
policies and practices for key executive employee compensation and, in its
discretion, may increase the Employee’s annual base salary commencing on August
1, 2009 and on anniversaries of such date thereafter. The amount of
such base salary for each respective annual one (1) year period, including any
increases hereafter approved, is referred to as the “Base Salary” for such
respective one year period. The Employee’s Base Salary may not and
shall not be decreased or reduced more than ten percent (10%) in any year,
including but not limited to after giving effect to any such
increase.
(b) Bonus. During
the Employment Term, the Employee shall be eligible to participate in any annual
fiscal year bonus program that may be provided by the Company for its key
executive employees, subject to its terms and conditions. On February
17, 2009, 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 performance
objectives for such year, and an over achievement bonus opportunity of up to One
Hundred percent (100%) of Base Salary if the Company exceeds the foregoing
performance objectives by predetermined amounts. Such objectives and
targets shall be determined on an annual basis each year during the Employment
Term, and shall be reasonably satisfactory to the Company and the
Employee. All bonuses payable to the Employee under the Executive
Bonus Plan or any other annual bonus plan shall be determined and paid on or
prior to March 31 of the year following the year for which such bonus is
payable.
(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.
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(d) Other
Benefits. During the term of this Agreement, the Employee
shall be entitled to participate in and receive benefits under any and all
pension, profit-sharing, life and other insurance, medical, dental, health and
other welfare and fringe benefit plans and programs, and be provided any and all
other perquisites, that are from time to time made available to executive
employees or other employees of the Company. The Employee shall also
be entitled to an amount of paid vacation per calendar year, and sick leave and
illness and disability benefits, in accordance with such reasonable Company
policy as may be applicable from time to time to key executive
employees.
Section
5. Expenses
and Other Employment-Related Matters. It is acknowledged by
the parties that the Employee, in connection with the services to be performed
by him pursuant to the terms of this Agreement, will be required to make
payments for travel, entertainment and similar expenses. The Company
shall reimburse the Employee for all reasonable expenses incurred by the
Employee in connection with the performance of his duties hereunder or otherwise
on behalf of the Company.
Section
6. Termination. The
Employee’s employment may terminate prior to the end of the Employment Term as
provided in this Section 6.
(a) Death or
Disability. The Employee’s employment will terminate (x)
immediately upon the death of the Employee during the term of his employment
hereunder or (y) at the option of the Company, upon thirty (30) days’ prior
written notice to the Employee, in the event of the Employee’s
disability. The Employee shall not be deemed disabled unless, as a
result of the Employee’s incapacity due to physical or mental illness (as
determined by a physician selected by the Employer or its insurers and
reasonably acceptable to the Employee or his representative), the Employee shall
have been absent from and unable to perform his duties with the Company on a
full-time bases for one hundred twenty (120) consecutive business
days. In the event of termination of the Employee’s employment
pursuant to this Section 6(a):
(1) The
Company shall immediately pay the Employee any portion of the Employee’s Base
Salary accrued but unpaid through the date of such termination and all payments
and reimbursements under Section 5 hereof for expenses incurred prior to such
termination. Six (6) months after the date of termination, the
Company will make a lump sum cash payment equal to the Employee’s Base Salary
and a prorated annual bonus for the year of termination equal to Twenty-Five
percent (25%) 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 Twenty-Five percent (25%) of Base Salary,
the Employee or his estate shall be entitled to receive, at the time such bonus
would have normally been payable or six (6) months after the termination of
employment (whichever later occurs), an additional amount equal to (x) such
larger bonus amount divided by twelve (12) and multiplied by the number of
months in the year of such termination that began or ended prior to the date of
such termination minus (y) the amount previously paid pursuant to the preceding
sentence.
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(2) The
Employee shall be entitled to receive all vested benefits under the Company’s
otherwise applicable plans and programs.
(b) For
Cause. The Company may terminate the employee’s employment for
Cause (as defined below) upon written notice by the Company to the Employee,
such termination to take effect on the date determined in accordance with the
last paragraph of this Section 6(b) below to be the termination date for such
purpose. In the event of termination of the Employee’s employment for
Cause pursuant to this Section 6(b):
(1) The
Company shall immediately pay the Employee (i) any portion of the Employee’s
Base Salary accrued but unpaid through the date of such termination and (ii) all
payments and reimbursement under Section 5 hereof for expenses incurred prior to
such termination.
(2) The
Employee shall be entitled to receive all vested benefits under the Company’s
otherwise applicable plans and programs.
For
purposes of this Agreement, the term “Cause” shall mean the Employee’s (i) gross
negligence in the performance of his duties with the Company, which gross
negligence results in a material adverse effect on the Company, provided that no
such gross negligence will constitute “Cause” if it relates to an action taken
or omitted by the Employee in the good faith, reasonable belief that such action
or omission was in or not opposed to the best interests of the Company; (ii)
habitual neglect or disregard of his duties with the Company that is materially
and demonstrably injurious to the Company, after written notice from the Company
stating the duties the Employee has failed to perform; (iii) engaging in conduct
or misconduct that materially xxxxx the reputation or financial position of the
Company; (iv) obstruction, impedance, or failure to materially cooperate with an
investigation authorized by the Board, a self-regulatory organization empowered
with self-regulatory responsibilities under federal or state laws, or a
governmental department or agency; or (v) conviction of a felony, provided that
no such conviction will constitute “Cause” if it relates to an action taken or
omitted by the Employee in the good faith, reasonable belief that such action or
omission was in or not opposed to the best interest of the
Company. The Employee’s employment may not and shall not be
terminated for Cause unless the (1) Board of Directors provides the Employee
with written notice stating the conduct alleged to give rise to such Cause, (2)
the Employee has been given an opportunity to be heard by the Board, (3) in the
case of clause (i) or (ii) of the definition of Cause, the Employee has been
given a reasonable time to cure, and the Employee has not cured such negligence
or failure to the reasonable satisfaction of the Board, and (4) the Board has
approved such termination by majority vote of the members of the Board of
Directors, excluding the Employee.
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(c) By Company Without
Cause. The Company may terminate the Employee’s employment at
any time for any reason without Cause. In the event of any
termination of the Employee’s employment by the Company without
Cause:
(1) The
Company shall pay the Employee severance pay for the Severance Period (as
defined below) at the per annum rate which shall equal one hundred percent
(100%) of his Base Salary at the date of such termination. The
Company shall pay such severance pay in lump sum six (6) months after the date
of such termination. The Company’s obligation to make such payments
shall be absolute and unconditional. Without limiting the foregoing,
such payments shall not be subject to any right of offset or similar right, and
the Employee shall have no obligation of mitigation or similar obligation with
respect thereto.
(2) The
Company shall immediately pay the Employee the portion of the Employee’s Base
Salary accrued but unpaid through the date of such termination and all payments
and reimbursements under Section 5 hereof for expenses incurred prior to such
termination. Six (6) months after the date of termination, the
Company will pay a prorated annual bonus for the year of termination equal to
Twenty Five percent (25%) 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 Twenty Five percent
(25%) of Base Salary, the Employee (or his estate) shall be entitled to receive,
and the Company shall pay, at the time the bonus would have normally been
payable or six (6) months after the termination of employment (whichever later
occurs), an additional amount equal to (x) such larger bonus amount divided by
twelve (12) and multiplied by the number of months in the year of such
termination that began or ended prior to the date of termination minus (y) the
amount previously paid pursuant to the preceding sentence.
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(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 a period equal to
one (1) full year beginning on the date of such termination.
(d) By Employee for Good
Reason. The Employee may terminate his employment at any time
for Good Reason (as defined below). In the event of any termination
of the Employee’s employment by the Employee for Good Reason:
(1) The
Company shall pay the Employee severance pay for the Severance Period (as
defined above) at the per annum rate which shall equal one hundred percent
(100%) of his Base Salary at the date of such termination. The
Company shall pay such severance pay in lump sum six (6) months after the date
of such termination. The Company’s obligation to make such payments
shall be absolute and unconditional. Without limiting the foregoing,
such payments shall not be subject to any right of offset or similar right, and
the Employee shall have no obligation of mitigation or similar obligation with
respect thereto.
(2) The
Company shall immediately pay the Employee the portion of the Employee’s Base
Salary accrued but unpaid through the date of such termination and all payments
and reimbursements under Section 5 hereof for expenses incurred prior to such
termination. Six (6) months after the date of termination, the
Company will pay a prorated annual bonus for the year of termination equal to
Twenty Five percent (25%) 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 Twenty Five percent
(25%) of Base Salary, the Employee (or his estate) shall be entitled to receive,
and the Company shall pay, at the time the bonus would have normally been
payable or six (6) months after the termination of employment (whichever later
occurs), an additional amount equal to (x) such larger bonus amount divided by
twelve (12) and multiplied by the number of months in the year of such
termination that began or ended prior to the date of termination minus (y) the
amount previously paid pursuant to the preceding sentence.
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(3) The
Employee shall be entitled to receive all vested benefits under the Company’s
otherwise applicable plans and programs.
(4)
Following such termination, the Employee shall be entitled to continue
participation in all medical, dental, health and other welfare benefits (or
receive comparable coverage if such participation is not permitted under the
terms of such plans or if the Board, at its option, determines that it is in the
best interest of the Company to provide such comparable coverage rather than
continued participation in the Company’s plans) until the end of the Severance
Period upon the same terms and conditions that would have applied if the
Employee continued to be employed by the Company, provided that the benefits
referred to in this clause (4) will cease if and to the extent the Employee
becomes eligible for similar benefits by reason of new employment.
For
purposes of this Agreement, “Good Reason” means (A) a material diminution of the
Employee’s duties or responsibilities, (B) a reduction in the Employee’s Base
Salary greater than ten percent (10%), or annual bonus or long-term incentive
compensation opportunity, (C) a Change of Control (as defined in Section 7
hereof), but only if the Employee terminates his employment pursuant to this
subsection within ninety (90) days after the date of such Change of Control, or
(D) a material breach by the Company of any other provision of this Agreement
that is not cured promptly after written notice to the Company by the
Employee.
(e) By Employee Without Good
Reason. The Employee may terminate his employment at any time
without Good Reason upon thirty (30) days’ prior written notice to the
Company. In the event of any such termination of the Employee’s
employment by the Employee without 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.
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(2) The
Employee shall be entitled to receive all vested benefits under the Company’s
otherwise applicable plans and programs.
(f) Excise Tax Gross-Up
Payment. If a Change of Control or other transaction triggers
or results in the imposition upon the Employee of any excise or similar tax
under Section 4999 of the Internal Revenue Code (or any similar or successor
provision) pursuant to the terms of this Agreement or any employee stock option
agreement or plan in which the Employee is a participant, the Company shall pay
(or cause any acquirer in such transaction to pay) any such excise or similar
tax and make “gross-up” payments to the Employee to the extent necessary so that
the Employee will receive the same net after-tax amount he would have received
if no excise tax had been imposed on him.
(g) No Penalty, Forfeiture or
Liability. Any termination by the Employee of his employment
with the Company in accordance with the terms hereof shall be without penalty,
forfeiture, or liability arising out of such termination of any kind or
nature. Notwithstanding any other provision hereof, any termination
of the Employee’s employment on or after the occurrence of a Change of Control
shall be deemed to be a termination by the Company without Cause if by the
Company.
Section
7. Change in
Control. For purposes of this Agreement, (1) the term “Person”
means any corporation, partnership, trust, company, business, firm, association,
organization, individual, governmental instrumentality or entity, or other
person or entity, (2) the term “Voting Stock” shall mean, as to any Person, the
then-outstanding securities of or other interests in such corporation entitled
to vote generally in the election of directors, trustees or similar managers of
such Person, and (3) the term “Change in 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
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(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
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(e) The
Company files a report or proxy statement with the Securities and Exchange
Commission pursuant to the Exchange Act disclosing in response to Form 8-K or
Schedule 14A (or any successor schedule, form, report or item therein) that a
change in control of the Company has occurred or will occur in the future
pursuant to any then-existing contract or transaction; or
(f) If,
during any period of two consecutive years, individuals who at the beginning 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 his any documents, or any other reproductions (in whole
or in part) of any items, comprising Confidential Information (except that the
Employee may retain his personal address, telephone and other contact lists and
information and any other documents or reproductions retained upon the advice of
counsel). Notwithstanding any other provision hereof, the term
“Confidential Information” does not include any information that (a) is or
becomes publicly available other than as the result of the breach by the
Employee of his confidentiality obligations under this Section 8, (b) became, is
or becomes available to the Employee on a non-confidential basis from a source,
other than the Company, that to the Employee’s 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.
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Section
9. Non-Competition. The
Company promises that during the term of this Agreement and before the Company
can exercise any right to terminate the Employee’s employment without cause, the
Company shall provide the Employee with Confidential Information that the
Employee did not possess and had not received prior to the execution of this
Agreement. In exchange for and ancillary to the Company’s enforceable
promise to provide him with that Confidential Information, the Employee agrees
that he will not disclose or make improper use of any of the Confidential
Information. In order to enforce that promise by the Employee, he
agrees to the provisions of this Section 9. Accordingly, during his
employment with the Company pursuant to this Agreement and for a period of two
(2) years thereafter, the Employee will not knowingly and intentionally (i)
engage, directly or indirectly, alone or as a partner, officer, director,
employee, or consultant of any other business organization, in any business
activities that are substantially and directly competitive with the business
activities then conducted by the Company anywhere in the world (the “Designated
Industry”), (ii) divert to any competitor of the Company in the Designated
Industry any customer of the Company or (iii) solicit or encourage any officer,
employee, or consultant of the Company to leave its employ for employment by or
with any competitor of the Company in the Designated Industry. The
parties hereto acknowledge that the Employee’s non-competition obligations
hereunder will not preclude the Employee from (i) owning less than 5% of the
common stock of any publicly traded corporation or other Persons conducting
business activities in the Designated Industry or (ii) serving as a director of
a corporation or other Person engaged in the manufacturing or electronics
industry whose business operations are not substantially and directly
competitive with those of the Company.
Section
10. Arbitration.
(a) Subject Claims; Initiation
of Binding Arbitration. The Company and the Employee agree that all (i)
disputes and claims of any nature that the employee may have against the Company
and any subsidiaries or affiliates and their officers and employees, including
all federal or state statutory, contractual, and common law claims (including
all employment discrimination claims) arising from, concerning, or relating in
any way to our employment relationship, (ii) all disputes and claims of any
nature that the Company may have against the Employee, or (iii) any dispute
among us about the arbitrability of any claims or controversy will be resolved
out of court. Any such claims will be submitted exclusively first to
mandatory mediation and, if mediation is unsuccessful, to mandatory
arbitration.
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(b) Arbitration
Procedure. Unless otherwise agreed in writing by the Company
and the Employee, any arbitration proceeding will be held in Houston,
Texas. The arbitration will be conducted under the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association
(“AAA Rules”). The claim will be submitted to a single experienced,
neutral employment arbitrator selected in accordance with the AAA
Rules. The arbitrator shall have full authority to award or grant all
remedies provided by law. The arbitrator shall have full authority to
permit adequate discovery. At the conclusion of the arbitration
proceeding, the arbitrator shall issue a written, reasoned award. The
award of the arbitration shall be final and binding. A judgment upon
the award may be entered and enforced by any court having
jurisdiction. Each party shall pay the fees of their respective
attorneys, the expenses of their witnesses, and any other expenses incurred by
such party in connection with the arbitration, provided, however, that the
Company shall pay for the fees of the arbitrator and the administrative and
filing fees charged by the AAA.
(c) Confidentiality;
Nonjoinder. All information regarding the dispute or claim or mediation
or arbitration proceedings, including the mediation settlement or arbitration
award, will not be disclosed by the Employee or by the Company or any mediator
or arbitrator to any third party without the written consent of the Employee and
the Company. In no event may an arbitrator allow any party to join
claims of any other employee in a single arbitration proceeding without consent
of the Employee and the Company. In the event that the dispute or
claim involves a written agreement between the Employee and the Company
(including this Agreement) or a compensation plan, the arbitrator will have no
authority to add to, detract from, or otherwise modify the agreement or plan
provisions other than as expressly set forth in that agreement or
plan. Should this arbitration agreement conflict with the arbitration
provisions of any other agreement that the Employee has with the Company, the
terms of this agreement will govern.
(d) Equitable
Relief. In the event that irreparable injury could occur
during the pendency of a mediation or arbitration proceeding, to restore or
maintain the status quo until the dispute has been resolved by mediation or
arbitration a party may apply to a court of competent jurisdiction to obtain a
temporary or preliminary injunction in aid of mediation and
arbitration.
(e) Binding
Agreement. Notwithstanding any policy of the Company
permitting it to alter its policies, procedures, and the terms and conditions of
employment, this agreement to arbitrate is binding and cannot be modified or
superseded except by a written agreement signed by an authorized representative
of the Company and the Employee.
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Section
11. General.
(a) Notices. All
notices and other communications hereunder will be in writing, and will be
deemed to have been duly given if delivered personally, or three (3) business
days after being mailed by certified mail, return receipt requested, or upon
receipt if sent by written telecommunications, to the relevant address set forth
below, or to such other address as the recipient of such notice or communication
will have specified to the other party hereto in accordance with this Section
11(a):
If to
Company, to:
Benchmark
Electronics, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxxx 00000
Attn:
Corporate Secretary
Fax No.:
979/000-0000
If to
Employee, to:
Xxxxxx X.
Xxxx
2409
Sarasoto
Xxxxxxxxxxx,
Xxxxx 00000
(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.
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(e)
Waivers. No
delay or omission by either party hereto in exercising any right, power or
privilege hereunder will impair such right, power or privilege, nor will any
single or partial exercise of any such right, power or privilege preclude any
further exercise of any other right, power or privilege.
(f) Counterparts. This
Agreement may be executed in multiple counterparts, each of which will be deemed
an original, and all of which together will constitute one and the same
instrument.
(g) Captions. The
captions in this Agreement are for convenience of reference only and will not
limit or otherwise affect any of the terms or provisions hereof.
(h) Reference to
Agreement. Use of the words “herein,” “hereof”, and “hereto”
and the like in this Agreement refer to this Agreement only as a whole and not
to any particular Section, subsection or provision of this Agreement, unless
otherwise noted. Any reference to a “Section” or “subsection” shall
refer to a Section or subsection of this Agreement, unless otherwise
noted.
(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.
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(j) Entire Agreement; Amendments
and Waivers. This Agreement contains the entire understanding
of the parties, and supersedes all prior agreements and understandings between
them, relating to the subject matter hereof including that certain Key
Contributor Severance Agreement between the parties dated January 24,
2002. This Agreement may not be amended or modified except by a
written instrument hereafter signed by each of the parties hereto, and may not
be waived except by a written instrument hereafter signed by the party granting
such waiver. The Company has not made any promise or entered into any
agreement that is not expressed in this Agreement, and the Employee is not
relying upon any statement or representation of any agent of the
Company. In executing this Agreement, the Employee is relying solely
on his judgment and has been represented by the legal counsel of his choice in
connection with this Agreement who has read and explained to the Employee the
entire contents of this Agreement, as well as explained the legal
consequences. No agreements or representation, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
(k) Governing
Law. This Agreement and the performance hereof shall be
governed and construed in all respects, including but not limited to as to
validity, interpretation and effect, by the laws of the State of Texas, without
regard to the principles or rules of conflict of laws thereof.
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Executed
as of the date and year first above written.
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/s/ Xxxx X. Xx
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Xxxx
X. Xx
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Chief
Executive Officer
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Employee
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Xxxxxx
X. Xxxx
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