AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1997
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BENCHMARK ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2211011
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3000 TECHNOLOGY DRIVE
ANGLETON, TEXAS 77515
(Address of Principal Executive Offices) (Zip Code)
BENCHMARK ELECTRONICS, INC.
401(k) EMPLOYEE SAVINGS PLAN
(Full title of plan)
DONALD E. NIGBOR
PRESIDENT
3000 TECHNOLOGY DRIVE
ANGLETON, TEXAS 77515
(Name and address of agent for service)
(409) 849-6550
(Telephone number, including area code, of agent for service)
Copies to:
JOHN R. BRANTLEY
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER PENNZOIL PLACE
711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77002-2781
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price Per Share Offering Price registration fee
- ------------------------------ ------------ ---------------- ------------------ ----------------
Common Stock,
<S> <C> <C> <C> <C>
par value $.10 per share(1) .. 500,000 $ 34.5625(2) $ 17,281,250(2) $ 5,237
============================== ============ ================ ================== ================
</TABLE>
(1) 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 employee benefit plan described herein.
(2) Calculated pursuant to Rule 457(c) and (h) based on the average of the high
and low sale prices of the Common Stock on the New York Stock Exchange on
June 6, 1997.
<PAGE>
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 introductory Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, or portions of documents, previously filed by
Benchmark Electronics, Inc. (the "Company") with the Securities and Exchange
Commission are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
2. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997; and
2. The description of the Company's Common Stock, par value $.10 per share
("Common Stock"), contained in the Company's Registration Statement on Form 8-A
dated May 6, 1997.
All documents filed by the Company or the Benchmark Electronics, Inc.
401(k) Employee Savings Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby 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 of such documents.
Any statement contained herein or in a 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
herein or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
TEXAS BUSINESS CORPORATION ACT
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.
AMENDED AND RESTATED BYLAWS
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.
INDEMNITY AGREEMENTS
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 CLAIMED
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 - Restated Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
S-1 (Registration No. 33-46316) (the "Registration Statement")).
4.2 - Amended and Restated Bylaws of the Company (incorporated herein by
reference to Exhibit 3.2 to the Registration Statement).
23 - Consent of KPMG Peat Marwick LLP.
Pursuant to paragraph (b) of Item 8 of Form S-8, in lieu of filing an Exhibit 5
to this Registration Statement, the Company hereby undertakes that it will
submit the plan to which this Registration Statement relates and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and will make
all changes required by the IRS in order to qualify the plan under Section 401
of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant 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;
(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 the 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 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
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant 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
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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.
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<PAGE>
SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the securities Act of 1933, the registrant
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 June 10, 1997.
BENCHMARK ELECTRONICS, INC.
By: /s/ DONALD E. NIGBOR
Donald E. Nigbor
President
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.
Name Position Date
---- -------- ----
_______________________ Chairman of the _______________
John C. Custer Board of Directors
/s/ DONALD E. NIGBOR Director and President June 10, 1997
Donald E. Nigbor (principal executive officer)
/s/ STEVEN A. BARTON Director and Executive June 10, 1997
Steven A. Barton Vice President
/s/ CARY T. FU Director and Executive June 10, 1997
Cary T. Fu Vice President (principal financial
and accounting officer)
_______________________ Director _______________
Peter G. Dorflinger
/s/ GERALD W. BODZY Director June 10, 1997
Gerald W. Bodzy
_______________________ Director _______________
David H. Arnold
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<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have 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 June 10,
1997.
BENCHMARK ELECTRONICS, INC. 401(k)
EMPLOYEE SAVINGS PLAN
By: /s/ GAYLA J. DELLY
Gayla J. Delly
Authorized Representative
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 - Restated Articles of Incorporation of the Company (incorporated herein by
reference to Exhibit 3.1 to the Company's Registration Statement on Form
S-1 (Registration No. 33-46316) (the "Registration Statement")).
4.2 - Amended and Restated Bylaws of the Company (incorporated herein by
reference to Exhibit 3.2 to the Registration Statement).
23 - Consent of KPMG Peat Marwick LLP.
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EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 24, 1997 included in Benchmark
Electronics, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1996.
KPMG PEAT MARWICK LLP
Houston, Texas
June 10, 1997
