AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BENCHMARK ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
TEXAS
(State or other jurisdiction of 74-2211011
incorporation or organization) (I.R.S. Employer
Identification No.)
3000 TECHNOLOGY DRIVE
ANGLETON, TEXAS 77515
(Address of principal executive offices) (Zip Code)
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BENCHMARK ELECTRONICS, INC.
2000 STOCK AWARDS PLAN
(Full title of plan)
CARY T. FU COPIES TO:
EXECUTIVE VICE PRESIDENT JOHN R. BRANTLEY
BENCHMARK ELECTRONICS, INC. BRACEWELL & PATTERSON, L.L.P.
3000 TECHNOLOGY DRIVE SOUTH TOWER PENNZOIL PLACE
ANGLETON, TEXAS 77515 711 LOUISIANA STREET, SUITE 2900
(Name and address of agent for service) HOUSTON, TEXAS 77002-2781
(713) 221-1301
(979) 849-6550 FAX: (713) 221-2112
(Telephone number, including
area code, of agent for service)
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Proposed Proposed
Title Of Amount Maximum Maximum
Securities To Be Offering Aggregate Amount Of
To Be Registered Price Per Offering Registration
Registered (1) Share Price (2) Fee
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Common Stock, par 2,000,000 $34.04(2) $59,336,489 $14,834
value $0.10 per share shares
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(1) Pursuant to Rule 457(h)(1) this registration fee is calculated with respect to the maximum number of the registrant's securities issuable under the Benchmark Electronics, Inc. 2000 Stock Awards Plan (the "Plan"). In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating the registration fee, as follows: (a) the registration fee for the 1,849,500 shares not presently subject to awards under the Plan was calculated by reference to the average of the high and low sale prices of the common stock on The New York Stock Exchange on January 22, 2001, which was $29.3125, for a total maximum offering price for such 1,849,500 shares of $54,213,469; and (b) the registration fee for the 150,500 shares presently subject to awards under the Plan was calculated by reference to the average price per share at which each award is exercisable, which is $34.04 for a total maximum offering price for such 150,500 shares of $5,123,020.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The information required by Items 1 and 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the Note to Part I of Form S-8 and Rule 428 promulgated under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Benchmark Electronics, Inc., a Texas corporation (the "Company"), hereby incorporates by reference into this registration statement (the "Registration Statement"):
o Our Annual Report on Form 10-K for the year ended December 31, 1999 (excluding Exhibit 99.1, which has been superseded by our Current Report on Form 8-K filed June 2, 2000), as amended by Form 10-K/A filed on July 13, 2000;
o Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
o Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2000;
o Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2000, as amended by our Quarterly Report on Form 10-Q/A filed November 16, 2000;
o Our Current Report on Form 8-K filed February 8, 2000;
o Our Current Report on Form 8-K filed April 7, 2000;
o Our Current Report on Form 8-K filed June 2, 2000;
o Our Current Report on Form 8-K filed July 13, 2000, as amended by our Current Report on Form 8-K/A filed July 31, 2000;
o Our Current Report on Form 8-K filed July 27, 2000;
o Our Current Report on Form 8-K filed October 26, 2000;
o Our Current Report on Form 8-K filed November 17, 2000;
o Our Current Report on Form 8-K filed November 30, 2000; and
o Our description of our capital stock that is contained in our Registration Statement on Form 8-A/A filed on June 25, 1990 and December 11, 1998, as amended on December 22, 1998.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), subsequent to the filing date of this Registration
Statement and prior to the filing of a post-
effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modified or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1.B of the Texas Business Corporation Act, as amended (the
"TBCA"), grants to a corporation the power to indemnify a person who was, is, or
is threatened to be made a named defendant or respondent in a proceeding because
the person is or was a director of the corporation against judgments, penalties
(including excise and similar taxes), fines, settlements and reasonable expenses
actually incurred in connection therewith, only if it is determined that the
person (1) conducted himself in good faith; (2) reasonably believed that (a) in
the case of conduct in his official capacity as a director of the corporation,
his conduct was in the corporation's best interests, and (b) in all other cases,
his conduct was at least not opposed to the corporation's best interests; and
(3) in the case of any criminal proceeding, he had no reasonable cause to
believe that his conduct was unlawful. Article 2.02-1.C limits the allowable
indemnification by providing that, except to the extent permitted by Article
2.02-1.E, a director may not be indemnified in respect of a proceeding in which
the person was found liable (1) on the basis that he improperly received a
personal benefit, whether or not the benefit resulted from an action taken in
his official capacity, or (2) to the corporation. Article 2.02-1.E provides that
if a director is found liable to the corporation or is found liable on the basis
that he received a personal benefit, the permissible indemnification (1) is
limited to reasonable expenses actually incurred by the person in connection
with the proceeding, and (2) shall not be made in respect of any proceeding in
which the person shall have been found liable for willful or intentional
misconduct in the performance of his duty to the corporation. Finally, Article
2.02-1.H provides that a corporation shall indemnify a director against
reasonable expenses incurred by him in connection with a proceeding in which he
is a named defendant or respondent because he is or was a director if he has
been wholly successful, on the merits or otherwise, in defense of the
proceeding.
With respect to the officers of a corporation, Article 2.02-1.O of the TBCA provides that a corporation may indemnify and advance expenses to an officer of the corporation to the same extent that it may indemnify and advance expenses to directors under Article 2.02-1. Further, Article 2.02-1.O provides that an officer of a corporation shall be indemnified as, and to the same extent, provided by Article 2.02-1.H for a director.
The Amended and Restated Bylaws of the Company make mandatory the indemnification of and advancement of expenses to its directors who become involved in indemnifiable legal proceedings, subject to their compliance with certain requirements imposed by Texas law.
The Company has entered into Indemnity Agreements with its directors and officers pursuant to which the Company generally is obligated to indemnify its directors and officers to the full extent permitted by Texas law.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Articles of Incorporation of the Company. (Incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1, Registration No. 33-46316.)
4.2 Amended and Restated Bylaws of the Company. (Incorporated by reference
to Exhibit 3.2 to From 10-K for the year ended December 31, 1998, File
No. 001-10560.)
4.3 Amendment to the Restated Articles of Incorporation of the Company
adopted by the shareholders of the Company on May 20, 1997.
(Incorporated by reference to Exhibit 3.3 to Form 10-K for the year
ended December 31, 1998, File No. 001-10560.)
4.4 Specimen form of certificate evidencing the Common Stock (incorporated
by reference to Exhibit 4.3 to the Company's Registration Statement on
Form S-1, Registration No. 33-46316.)
4.5 Rights Agreement dated December 11, 1998 between the Company and
Harris Trust Savings Bank, as Rights Agent, together with the
following exhibits thereto: Exhibit A -- Form of Statement of
Resolution Establishing Series A Cumulative Junior Participating
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Preferred Stock of Benchmark Electronics, Inc.; Exhibit B -- Form of
Right Certificate; and Exhibit C -- Summary of Rights to Purchase
Preferred Stock of Benchmark Electronics, Inc. (incorporated by
reference to Exhibit 1 to the Company's Form 8A12B filed December 11,
1998).
4.6 Summary of Rights to Purchase Preferred Stock of the Company
(incorporated by reference to Exhibit 3 to the Company's Form 8A12B/A
filed December 22, 1998).
4.7 Indenture dated as of August 13, 1999 by and between the Company and
Harris Trust Company of New York, as trustee (incorporated by
reference from Exhibit 99.3 to Benchmark's Form 8-K dated August 24,
1999 and filed on September 8, 1999).
4.8* Benchmark Electronics, Inc. 2000 Stock Awards Plan ("2000 Plan").
4.9* Form of incentive stock option agreement for use under the 2000 Plan.
5* Opinion of Bracewell & Patterson, L.L.P. as to the legality of the
common stock being offered.
23.1* Consent of Bracewell & Patterson, L.L.P. (included in its opinion
filed as Exhibit 5)
23.2* Consent of KPMG LLP.
24* Powers of Attorney
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(A) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(B) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof.
(C) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Angleton, State of Texas, on January 23, 2001.
BENCHMARK ELECTRONICS, INC.
By: /s/ DONALD E. NIGBOR
Donald E. Nigbor
President
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ * Chairman of the Board January 23, 2001
John C. Custer of Directors
/s/ DONALD E. NIGBOR Director and President January 23, 2001
Donald E. Nigbor (principal executive
officer)
/s/ * Director and Executive January 23, 2001
Steven A. Barton Vice President
/s/ CARY T. FU Director and Executive January 23, 2001
Cary T. Fu Vice President (principal
financial and accounting
officer)
/s/ * Director January 23, 2001
Peter G. Dorflinger
/s/ * Director January 23, 2001
Gerald W. Bodzy
/s/ * Director January 23, 2001
David H. Arnold
*By: /s/ DONALD E. NIGBOR
Donald E. Nigbor
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Restated Articles of Incorporation of the Company. (Incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1, Registration No. 33-46316.)
4.2 Amended and Restated Bylaws of the Company. (Incorporated by
reference to Exhibit 3.2 to From 10-K for the year ended December
31, 1998, File No. 001-10560.)
4.3 Amendment to the Restated Articles of Incorporation of the Company
adopted by the shareholders of the Company on May 20, 1997.
(Incorporated by reference to Exhibit 3.3 to Form 10-K for the year
ended December 31, 1998, File No. 001-10560.)
4.4 Specimen form of certificate evidencing the Common Stock
(incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-1, Registration No. 33-46316.)
4.5 Rights Agreement dated December 11, 1998 between the Company and
Harris Trust Savings Bank, as Rights Agent, together with the
following exhibits thereto: Exhibit A -- Form of Statement of
Resolution Establishing Series A Cumulative Junior Participating
Preferred Stock of Benchmark Electronics, Inc.; Exhibit B -- Form of
Right Certificate; and Exhibit C -- Summary of Rights to Purchase
Preferred Stock of Benchmark Electronics, Inc. (incorporated by
reference to Exhibit 1 to the Company's Form 8A12B filed December
11, 1998).
4.6 Summary of Rights to Purchase Preferred Stock of the Company
(incorporated by reference to Exhibit 3 to the Company's Form
8A12B/A filed December 22, 1998).
4.7 Indenture dated as of August 13, 1999 by and between the Company and
Harris Trust Company of New York, as trustee (incorporated by
reference from Exhibit 99.3 to Benchmark's Form 8-K dated August 24,
1999 and filed on September 8, 1999).
4.8* Benchmark Electronics, Inc. 2000 Stock Awards Plan ("2000 Plan").
4.9* Form of incentive stock option agreement for use under the 2000
Plan.
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5* Opinion of Bracewell & Patterson, L.L.P. as to the legality of the
common stock being offered.
23.1* Consent of Bracewell & Patterson, L.L.P. (included in its opinion
filed as Exhibit 5)
23.2* Consent of KPMG LLP.
24* Powers of Attorney
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* Filed herewith.
EXHIBIT 4.8
BENCHMARK ELECTRONICS, INC.
2000 STOCK AWARDS PLAN
I. PURPOSE
The purpose of Benchmark Electronics, Inc. 2000 Stock Awards Plan (the
"PLAN") is to provide a means through which Benchmark Electronics, Inc., a Texas
corporation (the "COMPANY"), and its subsidiaries may (i) attract and retain in
the service of the Company persons of training, experience and ability, (ii)
encourage a sense of proprietorship in such persons through stock ownership, and
(iii) stimulate such persons to exert their maximum efforts for the welfare of
the Company through the additional incentive and reward opportunities provided
by the Plan. Accordingly, the Plan provides for granting Incentive Stock
Options, options which do not constitute Incentive Stock Options, Stock
Appreciation Rights, Restricted Stock Awards, Performance Awards, Phantom Stock
Awards, or any combination of the foregoing, as is best suited to the
circumstances of the particular Eligible Participant, as provided herein.
II. DEFINITIONS
The following definitions shall be applicable throughout the Plan unless specifically modified by any paragraph:
(a) "AFFILIATE" means any "parent corporation" of the Company and any "subsidiary" of the Company within the meaning of Code Sections 424(e) and (f), respectively, and any entity which directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the Company.
(b) "AWARD" means, individually or collectively, any Option, Restricted Stock Award, Phantom Stock Award, Performance Award or Stock Appreciation Right.
(c) "BOARD" means the Board of Directors of the Company.
(d) "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 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 ("VOTING SECURITIES"), or (ii) individuals who constitute the Board of the Company on the date of this Plan ("INCUMBENT BOARD") cease for any reason to constitute at least a majority of that Board, provided that any person becoming a director subsequent to the date of this Plan 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 Plan, 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
EX 4.8 - 1
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.
(e) "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, or (iv) if a Change of Control occurs other than in
(i)-(iii) above, the Fair Market Value per share of the shares into which Awards
are 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.
(f) "CODE" means the Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to any section and any regulations under such section.
(g) "COMMITTEE" means the Compensation Committee of the Board, or another committee of the Board designated by the Board after the date of adoption of the Plan, which in either case shall be constituted solely of (i) "non-employee directors" within the meaning of Rule 16b-3 and applicable interpretive authority thereunder, and (ii) "outside directors" within the meaning of Section 162(m) of the Code and applicable interpretive authority thereunder.
(h) "COMPANY" means Benchmark Electronics, Inc. and any of its Affiliates.
(i) A "CONSULTANT" means an individual who performs services for the Company or its Affiliates as an independent contractor.
(j) "DIRECTOR" means an individual elected to the Board by the shareholders of the Company or by the Board under applicable corporate law who is serving on the Board on the date the Plan is adopted by the Board or is elected to the Board after such date.
(k) An "EMPLOYEE" means any person (including an officer or a Director) in an employment relationship with the Company or any parent or subsidiary corporation (as defined in section 424 of the Code).
(l) An "ELIGIBLE PARTICIPANT" means any (i) officer or employee of the Company or any Affiliate of the Company, including a Director of the Company, or a director of any Affiliate of the Company, who is also an employee, and (ii) consultant to the Company or any Affiliate of the Company.
EX 4.8 - 2
(m) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(n) "FAIR MARKET VALUE" means, as of any specified date, the closing sale price of the Stock (i) reported by any interdealer quotation system on which the Stock is quoted on that date, or (ii) if the Stock is listed on a national securities exchange, reported on the national securities exchange composite tape on that date; or, in either case, if no prices are reported on that date, on the last preceding date on which such prices of the Stock are so reported. If the Stock is traded in the over the counter market at the time a determination of its fair market value is required to be made hereunder, its fair market value shall be deemed to be equal to (i) the closing sale price of the Stock on that date, if such price is available, or (ii) if such price is not available, the average between the reported high and low bid prices of Stock on the most recent date for which such information is available. In the event Stock is not publicly traded at the time a determination of its value is required to be made hereunder, the determination of its fair market value shall be made by the Committee in such manner as it deems appropriate.
(o) "FORFEITURE RESTRICTIONS" has the meaning ascribed to it in Paragraph IX(b) hereof.
(p) "HOLDER" means an Eligible Participant who has been granted an Award.
(q) "INCENTIVE STOCK OPTION" means an option that is designated as an incentive stock option within the meaning of section 422(b) of the Code.
(r) "INCUMBENT BOARD" has the meaning ascribed to it in Paragraph II(d) hereof.
(s) "NONQUALIFIED STOCK OPTION" means an option granted under Paragraph VII of the Plan to purchase Stock which does not constitute an Incentive Stock Option.
(t) "OPTION" means an Award granted under Paragraph VII of the Plan and includes both Incentive Stock Options to purchase Stock and Nonqualified Stock Options to purchase Stock.
(u) "OPTION AGREEMENT" means a written agreement between the Company and a Holder with respect to an Option.
(v) "PERFORMANCE AWARD" means an Award granted under Paragraph X of the Plan.
(w) "PERFORMANCE AWARD AGREEMENT" means a written agreement between the Company and a Holder with respect to a Performance Award.
(x) "PERFORMANCE MEASURES" has the meaning ascribed to it in Paragraph IX(b) of the Plan.
(y) "PHANTOM STOCK AWARD" means an Award granted under Paragraph XI of the Plan.
(z) "PHANTOM STOCK AWARD AGREEMENT" means a written agreement between the Company and a Holder with respect to a Phantom Stock Award.
EX 4.8 - 3
(aa) "PLAN" means the Benchmark Electronics, Inc. 2000 Stock Awards Plan, as it may be amended from time to time.
(bb) "RESTRICTED STOCK AGREEMENT" means a written agreement between the Company and a Holder with respect to a Restricted Stock Award.
(cc) "RESTRICTED STOCK AWARD" means an Award granted under Paragraph IX of the Plan.
(dd) "RULE 16B-3" means Rule 16b-3 promulgated by the Securities and Exchange Commission under the 1934 Act as in effect on the date the Plan is adopted by the Board, as such rule may thereafter be amended from time to time, and any successor rule, regulation or statute fulfilling the same or a similar function.
(ee) "SPREAD" means, in the case of a Stock Appreciation Right, an amount equal to the excess, if any, of the Fair Market Value of a share of Stock on the date such right is exercised over the exercise price of such Stock Appreciation Right.
(ff) "STOCK" means the common stock, $.10 par value of the Company, as constituted on the date of the adoption of the Plan and any capital stock into which such common stock may thereafter be changed.
(gg) "STOCK APPRECIATION RIGHT" means an Award granted under Paragraph VIII of the Plan.
(hh) "STOCK APPRECIATION RIGHTS AGREEMENT" means a written agreement between the Company and a Holder with respect to an Award of Stock Appreciation Rights.
(ii) "VOTING SECURITIES" has the meaning ascribed to it in Paragraph II(d) hereof.
III EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective upon the date of its adoption by the Board, provided that the Plan is approved by the shareholders of the Company within twelve months thereafter. No further Awards may be granted under the Plan after the expiration of ten years from the date of its adoption by the Board. The Plan shall remain in effect until all Awards granted under the Plan have been satisfied or expired.
IV ADMINISTRATION
(a) COMMITTEE. The Plan shall be administered by the Committee.
EX 4.8 - 4
(b) POWERS. Subject to the provisions of the Plan, the Committee shall have sole authority, in its discretion, to determine which Eligible Participants shall receive an Award; the time or times when such Award shall be made; whether an Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock Award, Performance Award or Phantom Stock Award shall be granted; the number of shares of Stock which may be issued under each Option, Stock Appreciation Right or Restricted Stock Award; and the value of each Performance Award and Phantom Stock Award. In making such determinations the Committee may take into account the nature of the services rendered by the respective Eligible Participants, their present and potential contributions to the Company's success and such other factors as the Committee in its discretion shall deem relevant.
(c) ADDITIONAL POWERS. The Committee shall have such additional powers as are delegated to it by the other provisions of the Plan. Subject to the express provisions of the Plan, the Committee is authorized to construe the Plan and the respective agreements executed thereunder, to prescribe such rules and regulations relating to the Plan as it may deem advisable to carry out the Plan, and to determine the terms, restrictions and provisions of each Award, including such terms, restrictions and provisions as shall be requisite in the judgment of the Committee to cause designated Options to qualify as Incentive Stock Options, and to make all other determinations necessary or advisable for administering the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in any agreement relating to an Award in the manner and to the extent it shall deem expedient to carry it into effect. The determinations of the Committee on the matters referred to in this Paragraph IV shall be conclusive.
V GRANT OF AWARDS; SHARES SUBJECT TO THE PLAN
(a) GRANT OF AWARDS. The Committee may from time to time grant Awards to one or more Eligible Participants determined by it to be eligible for participation in the Plan in accordance with the provisions of Paragraph VI.
(b) SHARES SUBJECT TO PLAN. Subject to Paragraph XII, the aggregate number of shares of Stock that may be issued under the Plan upon the exercise or satisfaction of an Award shall not exceed 2,000,000 shares. The 2,000,000 shares of Stock subject to the Plan may be apportioned by the Committee among the various types of Awards as the Committee shall determine in its sole discretion. While an Award of one type is outstanding, the number of shares of Stock subject to such Award shall not be available for grant under another Award of the same or any other type. Shares of Stock shall be deemed to have been issued under the Plan only to the extent actually issued and delivered pursuant to an Award. To the extent that an Award lapses or the rights of its Holder terminate or the Award is paid in cash, any shares of Stock subject to such Award shall again be available for the grant of an Award. Separate stock certificates shall be issued by the Company for those shares acquired pursuant the exercise of an Incentive Stock Option and for those shares acquired pursuant to the exercise of a Nonqualified Stock Option.
(c) STOCK OFFERED. The shares of Stock to be offered pursuant to the grant of an Award may be authorized and unissued shares of Stock, or Stock previously issued which has been acquired by the Company.
EX 4.8 - 5
VI ELIGIBILITY
Awards may be granted only to persons who, at the time of grant, are Eligible Participants. An Award may be granted on more than one occasion to the same person, and, subject to the limitations set forth in the Plan, such Award may include an Incentive Stock Option or a Nonqualified Stock Option, a Stock Appreciation Right, a Restricted Stock Award, a Performance Award, a Phantom Stock Award or any combination thereof.
VII STOCK OPTIONS
(a) OPTION PERIOD. Subject to the limitations contained in Paragraph VII(c), the term of each Option shall be as specified by the Committee at the date of grant.
(b) LIMITATIONS ON EXERCISE OF OPTION. An Option shall be exercisable in whole or in such installments and at such times as may be determined by the Committee.
(c) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. No more than 2,000,000 shares of Stock may be subject to Incentive Stock Options. Incentive Stock Options may only be granted to employees of the Company and its Affiliates, and the term of an Incentive Stock Option cannot exceed ten years from the date of grant. To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Stock with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year under all incentive stock option plans of the Company and its parent and subsidiary corporations exceeds $100,000, such Incentive Stock Options shall be treated as Nonqualified Stock Options as determined by the Committee. The Committee shall determine, in accordance with applicable provisions of the Code, Treasury Regulations and other administrative pronouncements, which of an optionee's Incentive Stock Options will not constitute Incentive Stock Options because of such limitation and shall notify the optionee of such determination as soon as practicable after such determination. No Incentive Stock Option shall be granted to an individual if, at the time the Option is granted, such individual owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of its parent or subsidiary corporations, within the meaning of section 422(b)(6) of the Code, unless (i) at the time such Option is granted the option price is at least one hundred ten percent (110%) of the Fair Market Value of the Stock subject to the Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the date of grant.
(d) OPTION AGREEMENT. Each Option shall be evidenced by a written Option Agreement in such form and containing such provisions not inconsistent with the provisions of the Plan as the Committee from time to time shall approve, including, without limitation, provisions to qualify an Incentive Stock Option under section 422 of the Code. No individual may be granted in any calendar year an Option to purchase more than 2,000,000 shares of Stock. An Option Agreement may provide for the payment of the option price, in whole or in part, by the delivery of a number of shares of Stock (plus cash if necessary) having a Fair Market Value equal to such option price. Payment in full or in part may also be made by a reduction in the number of shares of Stock issuable upon the exercise of an Option, based on the Fair Market Value of the shares of Stock on the date the Option is exercised. Each Option Agreement shall specify the effect of termination of employment, or the
EX 4.8 - 6
cessation of performing services as a consultant to the Company, on the exercisability of the Option, as the case may be. Moreover, an Option Agreement may provide for a "cashless exercise" of the Option by establishing procedures whereby the Holder, by a properly executed written notice, directs (i) an immediate market sale or margin loan respecting all or a part of the shares of Stock to which he is entitled upon exercise pursuant to an extension of credit by the Company to the Holder of the option price, (ii) the delivery of the shares of Stock from the Company directly to a brokerage firm and (iii) the delivery of the option price from the sale or margin loan proceeds from the brokerage firm directly to the Company. Such Option Agreement may also include, without limitation, provisions relating to (i) vesting of Options, subject to the provisions hereof accelerating such vesting on a Change of Control, (ii) tax matters (including provisions (y) permitting the delivery of additional shares of Stock or the withholding of shares of Stock from those acquired upon exercise to satisfy federal or state income tax withholding requirements and (z) dealing with any other applicable employee wage withholding requirements), and (iii) any other matters not inconsistent with the terms and provisions of this Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Option Agreements need not be identical.
(e) OPTION PRICE AND PAYMENT. The price at which a share of Stock may be
purchased upon exercise of an Option shall be determined by the Committee, but
(i) such purchase price shall not be less than the Fair Market Value of Stock
subject to an Option on the date the Option is granted and (ii) such purchase
price shall be subject to adjustment as provided herein. The Option or portion
thereof may be exercised by delivery of an irrevocable notice of exercise to the
Company. The purchase price of the Option or portion thereof shall be paid in
full in the manner prescribed by the Committee.
(f) SHAREHOLDER RIGHTS AND PRIVILEGES. The Holder shall be entitled to all the privileges and rights of a shareholder only with respect to such shares of Stock as have been purchased under the Option and for which certificates of stock have been registered in the Holder's name.
(g) OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS GRANTED BY OTHER Entities. Options and Stock Appreciation Rights may be granted under the Plan from time to time in substitution for stock options held by individuals employed by other entities who become employees as a result of a merger or consolidation of the employing entity with the Company or any subsidiary, or the acquisition by the Company or a subsidiary of the assets of the employing entity, or the acquisition by the Company or a subsidiary of stock or other equity interests of the employing entity with the result that such employing entity becomes a subsidiary of the Company.
EX 4.8 - 7
VIII STOCK APPRECIATION RIGHTS
(a) STOCK APPRECIATION RIGHTS. A Stock Appreciation Right is the right to receive an amount equal to the Spread with respect to a share of Stock upon the exercise of such Stock Appreciation Right. Stock Appreciation Rights may be granted in connection with the grant of an Option, in which case the Option Agreement will provide that exercise of Stock Appreciation Rights will result in the surrender of the right to purchase the shares under the Option as to which the Stock Appreciation Rights were exercised. Alternatively, Stock Appreciation Rights may be granted independently of Options, in which case each Award of Stock Appreciation Rights shall be evidenced by a Stock Appreciation Rights Agreement which shall contain such terms and conditions as may be approved by the Committee. No individual may be granted in any calendar year Stock Appreciation Rights with respect to more than 2,000,000 shares of Stock. The Spread with respect to a Stock Appreciation Right may be payable either in cash, shares of Stock with a Fair Market Value equal to the Spread or in a combination of cash and shares of Stock. Each Stock Appreciation Rights Agreement shall specify the effect of termination of employment, the cessation of serving on the Board or the cessation of performing services as a consultant to the Company on the exercisability of the Stock Appreciation Rights.
(b) OTHER TERMS AND CONDITIONS. At the time of such Award, the Committee may in its sole discretion prescribe additional terms, conditions or restrictions relating to Stock Appreciation Rights, including, but not limited to rules pertaining to termination of employment or the cessation of performing services as a consultant to the Company (by retirement, disability, death or otherwise) of a Holder prior to the expiration of such Stock Appreciation Rights. Such additional terms, conditions or restrictions shall be set forth in the Stock Appreciation Rights Agreement made in conjunction with the Award. Such Stock Appreciation Rights Agreements may also include, without limitation, provisions relating to (i) vesting of Awards, subject to the provisions hereof accelerating vesting on a Change of Control, (ii) tax matters (includinG provisions covering applicable wage withholding requirements), and (iii) any other matters not inconsistent with the terms and provisions of this Plan that the Committee shall in its sole discretion determine. The terms and conditions of the respective Stock Appreciation Rights Agreements need not be identical.
(c) EXERCISE PRICE. The exercise price of each Stock Appreciation Right shall be determined by the Committee, but such exercise price (i) shall not be less than the Fair Market Value of a share of Stock on the date the Stock Appreciation Right is granted (or such greater exercise price as may be required if such Stock Appreciation Right is granted in connection with an Incentive Stock Option that must have an exercise price equal to one hundred ten percent (110%) of the Fair Market Value of the Stock on the date of grant pursuant to Paragraph VII(c)), and (ii) shall be subject to adjustment as provided in Paragraph XII.
(d) EXERCISE PERIOD. The term of each Stock Appreciation Right shall be as specified by the Committee at the date of grant.
(e) LIMITATIONS ON EXERCISE OF STOCK APPRECIATION RIGHT. A Stock Appreciation Right shall be exercisable in whole or in such installments and at such times as determined by the Committee.
EX 4.8 - 8
IX RESTRICTED STOCK AWARDS
(a) RESTRICTED STOCK AWARDS. A Restricted Stock Award shall be represented by a certificate of Stock registered in the name of the Holder of such Restricted Stock Award and the related Restricted Stock Agreement. The Holder shall have the right to receive dividends with respect to Stock subject to a Restricted Stock Award, to vote the shares of Stock subject thereto and to enjoy all other shareholder rights, except that (i) the Holder shall not be entitled to delivery of the certificate representing the shares of Stock until the Forfeiture Restrictions shall have expired, (ii) the Company shall retain custody of the certificate representing the Stock until the Forfeiture Restrictions shall have expired, (iii) the Holder may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the Stock until the Forfeiture Restrictions have expired, and (iv) a breach of the terms and conditions established by the Committee pursuant to the Restricted Stock Agreement shall cause a forfeiture of the Restricted Stock Award.
(b) FORFEITURE RESTRICTIONS TO BE ESTABLISHED BY THE COMMITTEE. Shares
of Stock that are the subject of a Restricted Stock Award shall be subject to
restrictions on disposition by the Holder and an obligation of the Holder to
forfeit and surrender the shares to the Company under certain circumstances (the
"FORFEITURE RESTRICTIONS"). The Forfeiture Restrictions shall be determined by
the Committee in its sole discretion, and the Committee may provide that the
Forfeiture Restrictions shall lapse upon (i) the attainment of targets
established by the Committee that are based on (1) the price of a share of
Stock, (2) the Company's earnings per share, (3) the revenue of the Company or
an Affiliate designated by the Committee, (4) the revenue of a business unit of
the Company or an Affiliate designated by the Committee, (5) the return on
shareholders' equity achieved by the Company or an Affiliate designated by the
Committee, or (6) the pre-tax cash flow from operations of the Company or an
Affiliate designated by the Committee (the matters listed in the preceding items
(1) through (6) shall hereinafter be referred to as "PERFORMANCE MEASURES"),
(ii) the Holder's continued service or employment with the Company or an
Affiliate for a specified period of time, or (iii) a combination of any two or
more of the factors listed in clauses (i) and (ii) of this sentence. Each
Restricted Stock Award may have different Forfeiture Restrictions, in the
discretion of the Committee. The Forfeiture Restrictions applicable to a
particular Restricted Stock Award shall not be changed except as permitted by
Paragraph XII.
(c) OTHER TERMS AND CONDITIONS. No individual may be awarded more than 2,000,000 shares of Stock that are subject to a Restricted Stock Award in any calendar year. Stock awarded pursuant to a Restricted Stock Award shall be represented by a stock certificate registered in the name of the Holder of such Restricted Stock Award. The Holder shall have the right to receive dividends with respect to Stock subject to a Restricted Stock Award, to vote Stock subject thereto and to enjoy all other shareholder rights, except that (i) the Holder shall not be entitled to delivery of the stock certificate until the Forfeiture Restrictions shall have expired, (ii) the Company shall retain custody of the Stock until the Forfeiture Restrictions shall have expired, (iii) the Holder may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the Stock until the Forfeiture Restrictions shall have expired, and (iv) a breach of the terms and conditions established by the Committee pursuant to the Restricted Stock Agreement, shall cause a forfeiture of the Restricted Stock Award. At the time of such Award, the Committee may in its sole discretion, prescribe additional terms, conditions or restrictions relating to Restricted Stock Awards, including, but not limited to, rules pertaining to the termination of employment or the cessation of performing services
EX 4.8 - 9
as a consultant to the Company (by retirement, disability, death or otherwise) of a Holder prior to expiration of the Forfeiture Restrictions. Such additional terms, conditions or restrictions shall be set forth in a Restricted Stock Agreement made in conjunction with the Award. Such Restricted Stock Agreement may also include, without limitation, provisions relating to (i) subject to the provisions hereof accelerating vesting on a Change of Control, vesting of Awards, (ii) tax matters (including provisions (y) covering any applicable employee wage withholding requirements and (z) prohibiting an election by the Holder under section 83(b) of the Code), and (iii) any other matters not inconsistent with the terms and provisions of this Plan that the Committee shall in its sole discretion determine.
(d) PAYMENT FOR RESTRICTED STOCK. The Committee shall determine the amount and form of any payment for Stock received pursuant to a Restricted Stock Award, provided that in the absence of such a determination, a Holder shall not be required to make any payment for Stock received pursuant to a Restricted Stock Award, except to the extent otherwise required by law.
(e) AGREEMENTS. At the time any Award is made under this Paragraph IX, the Company and the Holder shall enter into a Restricted Stock Agreement setting forth each of the matters as the Committee may determine to be appropriate. The terms and provisions of the respective Restricted Stock Agreements need not be identical.
X PERFORMANCE AWARDS
(a) PERFORMANCE PERIOD. The Committee shall establish, with respect to and at the time of each Performance Award, a performance period over which the performance of the Holder shall be measured.
(b) PERFORMANCE AWARDS. Each Performance Award shall have a maximum value established by the Committee at the time of such Award, provided that no individual may be granted a Performance Award in any calendar year where the value of such award exceeds the Fair Market Value of 2,000,000 shares of Stock.
(c) PERFORMANCE MEASURES. A Performance Award shall be awarded to an Eligible Participant contingent upon future performance of the Eligible Participant, the Company, any Affiliate of the Company, or any subsidiary, division, department or business unit thereof by or in which the Eligible Participant is employed or for which the Eligible Participant performs services during the performance period. The Committee shall establish the Performance Measures applicable to such performance prior to the beginning of the performance period but subject to such later revisions as the Committee shall deem appropriate to reflect significant, unforeseen events or changes.
(d) AWARDS CRITERIA. In determining the value of Performance Awards, the Committee shall take into account an Eligible Participant's responsibility level, performance, potential, other Awards and such other considerations as it deems appropriate.
(e) PAYMENT. Following the end of the performance period, the Holder of a Performance Award shall be entitled to receive payment of an amount, not exceeding the maximum value of the
EX 4.8 - 10
Performance Award, based on the achievement of the Performance Measures for such performance period, as determined by the Committee. Payment of a Performance Award may be made in cash, Stock or a combination thereof, as determined by the Committee. Payment shall be made in a lump sum or in installments as prescribed by the Committee. Any payment to be made in Stock shall be based on the Fair Market Value of the Stock on the payment date. If a payment of cash is to be made on a deferred basis, the Committee shall establish whether interest shall be credited, the rate thereof and any other terms and conditions applicable thereto.
(f) TERMINATION OR CESSATION OF EMPLOYMENT OR OTHER SERVICE . A Performance Award shall terminate if the Holder does not remain continuously in the employ or other service of the Company at all times during the applicable performance period, except as may be determined by the Committee or as may otherwise be provided in the Award at the time granted.
(g) AGREEMENTS. At the time any Award is made under this Paragraph X, the Company and the Holder shall enter into a Performance Award Agreement setting forth each of the matters contemplated hereby, and, in addition such Performance Measures as the Committee may determine to be appropriate. The terms and provisions of the respective agreements need not be identical.
XI PHANTOM STOCK AWARDS
(a) PHANTOM STOCK AWARDS. Phantom Stock Awards are rights to receive shares of Stock (or cash in an amount equal to the Fair Market Value thereof), or rights to receive an amount equal to any appreciation in the Fair Market Value of Stock (or portion thereof) over a specified period of time, which vest over a period of time or upon the occurrence of an event as established by the Committee, without payment of any amounts by the Holder thereof (except to the extent otherwise required by law) or satisfaction of any Performance Measure. Each Phantom Stock Award shall have a maximum value established by the Committee at the time of such Award, provided that no individual may be granted a Phantom Stock Award in any calendar year for more than 2,000,000 shares of Stock.
(b) AWARD PERIOD. Subject to the provisions hereof accelerating vesting on a Change of Control, the Committee shall establish, with respect to and at the time of each Phantom Stock Award, a period over which or the event upon which the Award shall vest with respect to the Holder.
(c) AWARDS CRITERIA. In determining the value of Phantom Stock Awards, the Committee shall take into account an Eligible Participant's responsibility level, performance, potential, other Awards and such other considerations as it deems appropriate.
(d) PAYMENT. Following the end of the vesting period for a Phantom Stock Award, the Holder of a Phantom Stock Award shall be entitled to receive payment of an amount, not exceeding the maximum value of the Phantom Stock Award, based on the then vested value of the Award. Payment of a Phantom Stock Award may be made in cash, Stock or a combination thereof as determine by the Committee. Payment shall be made in a lump sum or in installments as prescribed by the Committee in its sole discretion. Any payment to be made in Stock shall be based on the Fair Market Value of the Stock on the payment date. Cash dividend equivalents may be paid during or after the vesting period with respect to a Phantom Stock Award, as determined by the Committee.
EX 4.8 - 11
If a payment of cash is to be made on a deferred basis, the Committee shall establish whether interest shall be credited, the rate thereof and any other terms and conditions applicable thereto.
(e) TERMINATION OR CESSATION OF EMPLOYMENT OR OTHER SERVICE. A Phantom Stock Award shall terminate if the Holder does not remain continuously in the employ of the Company or fails to perform services for the Company at all times during the applicable vesting period, except as may be otherwise determined by the Committee or as set forth in the Award at the time of grant.
(f) AGREEMENTS. At the time any Award is made under this Paragraph XI, the Company and the Holder shall enter into a Phantom Stock Award Agreement setting forth each of the matters contemplated hereby and, in addition such Performance Measures as the Committee may determine to be appropriate. The terms and provisions of the respective agreements need not be identical.
XII RECAPITALIZATION OR REORGANIZATION
(a) SUBDIVISION OR COMBINATION OF SHARES. The shares with respect to which Awards may be granted are shares of Stock as constituted on the effective date of the Plan, but if, and whenever, prior to the expiration of an Award theretofore granted, the Company shall effect a subdivision or combination of its Stock, the number of shares of Stock with respect to which such Award may thereafter be exercised or satisfied, as applicable, (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) RECAPITALIZATION. If the Company recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of an Award theretofore granted the Holder shall be entitled to (or shall be entitled to receive, as applicable) under such Award, in lieu of the number of shares of Stock then covered by such Award, the number and class of shares of capital stock and securities to which the Holder would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Holder had been the holder of record of the number of shares of Stock then covered by such Award.
(c) CHANGE OF CONTROL. Upon the occurrence of a Change of Control, all outstanding Awards shall immediately vest and become exercisable or satisfiable, as applicable. The Committee, in its discretion, may determine that upon the occurrence of a Change of Control, each Award other than an Option outstanding hereunder shall terminate within a specified number of days after notice to the Holder, and such Holder shall receive, with respect to each share of Stock subject to such Award, cash in an amount equal to the excess, if any, of the Change of Control Value over the exercise price of the Award. Further, in the event of a Change of Control, the Committee, in its discretion shall act to effect one or more of the following alternatives with respect to outstanding Options, which may vary among individual Holders and which may vary among Options held by any individual Holder: (1) determine a limited period of time for the exercise of such Options on or before a specified date (before or after such Change of Control) after which specified date all unexercised Options and all rights of Holders thereunder shall terminate, (2) require the mandatory surrender to the Company by selected Holders of some or all of the outstanding Options held by such
EX 4.8 - 12
Holders (irrespective of whether such Options are then exercisable under the provisions of the Plan) as of a date, before or after such Change of Control, specified by the Committee, in which event the Committee shall thereupon cancel such Options and the Company shall pay to each Holder an amount of cash per share equal to the excess, if any, of the Change of Control Value of the shares subject to such Option over the exercise price(s) under such Options for such shares, (3) make such adjustments to Options then outstanding 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 Options then outstanding), or (4) provide that thereafter upon any exercise of an Option theretofore granted the Holder shall be entitled to purchase under such Option, in lieu of the number of shares of Stock then covered by such Option, the number and class of shares of stock or other securities or property (including, without limitation, cash) to which the Holder 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 Holder had been the holder of record of the number of shares of Stock then covered by such Option. The provisions contained in this paragraph shall not alter any rights or terminate any rights of the Holder to further payments pursuant to any other agreement with the Company following a Change of Control.
(d) OTHER EVENTS. In the event of changes in the outstanding Stock by reason of recapitalizations, reorganizations, mergers, consolidations, combinations, exchanges or other relevant changes in capitalization occurring after the date of the grant of any Award and not otherwise provided for by this Paragraph XII, any outstanding Awards and any agreements evidencing such Awards shall be subject to adjustment by the Committee at its discretion as to the number and price of shares of Stock or other consideration subject to such Awards. In the event of any such change in the outstanding Stock, the aggregate number of shares available under the Plan may be appropriately adjusted by the Committee, whose determination shall be conclusive.
(e) CORPORATE POWER. The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the shareholders 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 ranking prior to or affecting 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.
(f) SHAREHOLDER APPROVAL. Any adjustment provided for in Subparagraphs
(a), (b), (c) or (d) above shall be subject to any required shareholder action.
(g) ISSUANCE OF SECURITIES. 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 Stock subject to Awards theretofore granted or the purchase price per share, if applicable.
EX 4.8 - 13
XIII AMENDMENT AND TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan at any time with respect to any shares for which Awards have not theretofore been granted. The Board shall have the right to alter or amend the Plan or any part thereof from time to time; provided that no change in any Award theretofore granted may be made which would impair the rights of the Holder without the consent of the Holder (unless such change is required in order to cause the benefits under the Plan to qualify as performance-based compensation within the meaning of Section 162(m) of the Code and applicable interpretive authority thereunder), and provided further, that the Board may not, without approval of the shareholders, amend the Plan:
(a) to increase the maximum number of shares which may be issued under the Plan, or on exercise or surrender of an Award, except as provided in Paragraph XII;
(b) to change the Option price;
(c) to change the class of Eligible Participants to whom Awards may be made under the Plan, or to materially increase the benefits accruing to Eligible Participants under the Plan;
(d) to extend the maximum period during which Awards may be granted under the Plan; or
(e) to modify materially the requirements as to eligibility for participation in the Plan.
XIV MISCELLANEOUS
(a) NO RIGHT TO AN AWARD. Neither the adoption of the Plan by the Company nor any action of the Board or the Committee shall be deemed to give an Eligible Participant any right to be granted an Option, a Stock Appreciation Right, a Restricted Stock Award, a Performance Award or a Phantom Stock Award or any of the rights hereunder except as may be evidenced by an Option Agreement, Stock Appreciation Rights Agreement, Restricted Stock Agreement, Performance Award Agreement or Phantom Stock Award Agreement executed on behalf of the Company by an authorized representative thereof, and then only to the extent and on the terms and conditions expressly set forth therein. The Plan shall be unfunded. The Company shall not be required to establish any special or separate fund or to make any other segregation of funds or assets to assure the payment of any Award.
(b) NO EMPLOYMENT OR SERVICE RIGHTS CONFERRED. Nothing contained in the Plan shall (i) confer upon any employee any right with respect to continuation of employment or service with the Company or any Affiliate or (ii) interfere in any way with the right of the Company or any Affiliate to terminate his or her employment or service at any time.
(c) OTHER LAWS; WITHHOLDING. The Company shall not be obligated to issue any Stock pursuant to any Award granted under the Plan at any time when the shares covered by such Award have not been registered under the Securities Act of 1933, as amended, and such other state and federal laws, rules or regulations as the Company or the Committee deems applicable and, in the
EX 4.8 - 14
opinion of legal counsel for the Company, there is no exemption from the registration requirements of such laws, rules or regulations available for the issuance and sale of such shares. No fractional shares of Stock shall be delivered, nor shall any cash in lieu of fractional shares be paid. The Company shall have the right to deduct in connection with all Awards any taxes required by law to be withheld and to require any payments required to enable it to satisfy its withholding obligations.
(d) NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan shall be construed to prevent the Company or any Affiliate from taking any corporate action which is deemed by the Company or such Affiliate to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Award made under the Plan. No employee, beneficiary or other person shall have any claim against the Company or any subsidiary as a result of any such action.
(e) RESTRICTIONS ON TRANSFER. An Award shall not be transferable otherwise than by will or the laws of descent and distribution or pursuant to a "qualified domestic relations order" as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder, and shall be exercisable during the Holder's lifetime only by such Holder or the Holder's guardian or legal representative.
(f) SECTION 162(M). If the Company is subject to Section 162(m) of the
Code, it is intended that the Plan comply fully with and meet all the
requirements of Section 162(m) of the Code so that Options and Stock
Appreciation Rights granted hereunder and, if determined by the Committee,
Restricted Stock Awards, shall constitute "performance-based" compensation
within the meaning of such section. If any provision of the Plan would
disqualify the Plan or would not otherwise permit the Plan to comply with
Section 162(m) of the Code as so intended, such provision shall be construed or
deemed amended to conform to the requirements or provisions of Section 162(m) of
the Code; provided that no such construction or amendment shall have an adverse
effect on the economic value to a Holder of any Award previously granted
hereunder. With respect to any Award granted to a "covered employee" (as defined
in Section 162(m)(3) of the Code), if the payment of such Award is contingent on
the satisfaction of performance goals, the Committee shall certify in writing
prior to payment of such Award that such performance goals have been satisfied.
(g) GOVERNING LAW. This Plan shall be construed in accordance with the laws of the State of Texas.
EX 4.8 - 15
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.
EX 4.9 - 1
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
EX 4.9 - 2
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
EX 4.9 - 3
("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
EX 4.9 - 4
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., 3000 Technology Drive, Angleton, Texas 77515, 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
EX 4.9 - 6
remuneration then or thereafter payable to the Optionee any tax required to be withheld by reason of any such disposition.
EX 4.9 - 7
IN WITNESS WHEREOF, this Agreement has been executed as of the ____ day of ___________, 200_.
BENCHMARK ELECTRONICS, INC.
By:_________________________________
OPTIONEE
EX 4.9 - 8
EXHIBIT 5
January 23, 2001
Benchmark Electronics, Inc.
3000 Technology Drive
Angleton, Texas 77515
Ladies and Gentlemen:
We have acted as counsel to Benchmark Electronics, Inc., a Texas corporation (the "Company"), in connection with the proposed issuance by the Company of up to 2,000,000 shares (the "Shares") of Common Stock, $0.10 par value, to participants in the Benchmark Electronics, Inc. 2000 Stock Awards Plan (the "Plan"). The Company is filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), a Registration Statement on Form S-8 (the "Registration Statement") relating to the Shares.
We have examined originals or copies of (i) the Restated Articles of Incorporation of the Company, as amended, (ii) the Amended and Restated Bylaws of the Company, (iii) the Plan, (iv) certain resolutions of the Board of Directors of the Company and (v) such other documents and records as we have deemed necessary and relevant for purposes hereof. In addition, we have relied on certificates of officers of the Company as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed necessary and relevant as a basis hereof. In such examination and investigation, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and records submitted to us as originals, the conformity to original documents, certificates and records of all documents, certificates and records submitted to us as copies, and the truthfulness of all statements of fact contained therein.
Based upon the foregoing and subject to the limitations and assumptions set forth herein and having due regard for such legal considerations as we deem relevant, we are of the opinion that the Shares have been duly and validly authorized and when issued and paid for in accordance with the terms of the Plan, for a consideration at least equal to the par value thereof, will be validly issued, fully paid and nonassessable.
The foregoing opinion is based on and limited to the laws of the State of Texas and the relevant law of the United States of America, and we render no opinion with respect to the law of any other jurisdiction. We hereby consent to the filing of this opinion with the Commission as Exhibit 5 to the Registration Statement. By giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ BRACEWELL & PATTERSON, L.L.P.
Bracewell & Patterson, L.L.P.
EX 5 - 1
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Benchmark Electronics, Inc.:
We consent to the use of our reports incorporated by reference in this Registration Statement on Form S-8 of Benchmark Electronics, Inc., which reports are incorporated by reference and included in the Annual Report on Form 10-K (as amended by Form 10-K/A filed on July 13, 2000) of Benchmark Electronics, Inc. for the year ended December 31, 1999.
KPMG LLP
Houston, Texas
January 19, 2001
EX 23.2 - 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that in connection with the proposed registration on Form S-8 under the Securities Act of 1933, as amended, by Benchmark Electronics, Inc., a Texas corporation (the "Company"), of shares of the Company's Common Stock pursuant to the Company's 2000 Stock Awards Plan (the "Plan") and the related interests in the Plan, the undersigned directors of the Company hereby makes, constitutes and appoints each of Donald E. Nigbor and Cary T. Fu, with full power to act without the other, the undersigned's true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and on the undersigned's behalf and in the undersigned's name, place and stead, in any and all capacities, to sign a Registration Statement on Form S-8 relating to such securities and any amendments or post-effective amendments thereto and file the same with Securities and Exchange Commission and to sign and file all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorney full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, thereby ratifying and confirming all that the sale attorney-in-fact and agent may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of attorney this 23rd day of January, 2001.
/s/ JOHN C. CUSTER
John C. Custer
/s/ STEPHEN A. BARTON
Stephen A. Barton
/s/ PETER G. DORFLINGER
Peter G. Dorflinger
/s/ GERALD W. BODZY
Gerald W. Bodzy
/s/ DAVID H. ARNOLD
David H. Arnold
EX 24 - 1
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