AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 13, 1999
REGISTRATION NO. 333-______
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 74-2211011
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3000 TECHNOLOGY DRIVE 77515
ANGLETON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
BENCHMARK ELECTRONICS, INC.
EMPLOYEE STOCK PURCHASE 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
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate registration
to be Registered Registered Price Per Share Offering Price fee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Common Stock,
par value $.10 per
share 500,000(1) $31.47(2) $15,375,000(2) $8,749
Interests in the Plan (3) (3) (3) (3)
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 416, includes any additional shares issuable pursuant to
the antidilution provisions of the plan.
(2) Estimated, pursuant to Rule 457(h), solely for the purpose of calculating
the registration fee based on the average of the high and low sale prices
of the Common Stock on the New York Stock Exchange on April 8, 1999, which
was $31.47, for a total maximum offering price for such 500,000 shares of
$15,735,000.
(3) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of interests in the Plan to be offered or sold
pursuant to the Plan, such interests constituting separate securities
required to be registered under the Securities Act of 1933, as amended,
and not requiring a separate registration fee.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I of Form S-8 (Items 1 and 2) is included
in documents sent or given to participants in the Registrant's 1999 Employee
Stock Purchase Plan pursuant to Rule 428(b)(1) of 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
The following documents, which are filed with the Securities and Exchange
Commission (the "Commission"), are incorporated in this Registration Statement
by reference:
(1) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(2) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $0.10 par value
per share (the "Common Stock"), contained in the Registrant's registration
statement on Form 8-A dated May 5, 1990 filed with the Commission under
Section 12(g) of the Exchange Act, as amended by the Registrant's Form 8-A
filed December 11, 1998, as amended, and including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
TEXAS BUSINESS CORPORATION ACT
-2-
<PAGE>
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.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
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 Company's Annual Report on Form 10K for
fiscal the fiscal year ending December 31, 1998).
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 3.2 of the Registration Statement).
4.4 - Specimen form of certificate evidencing the Common Stock (incorporated
herein by reference to Exhibit 4.3 to the Registration Statement).
-3-
<PAGE>
4.5 - Rights Agreement dated December 11, 1998 between the Company and Harris
Trust Savings and Bank, as Rights Agent, together with the following
exhibits thereto: Exhibit A - Form of Statement of Resolution
Establishing Series A Cumulative 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 8A filed December 11, 1998).
4.6 - Summary of Rights to Purchase Preferred Stock of Benchmark Electronics,
Inc. (incorporated herein by reference to Exhibit 3 to the Company's
Form 8A/A filed December 22, 1998).
5.1 - Opinion of Counsel.
23.1 - Consent of KPMG LLP.
23.2 - Consent of Bracewell & Patterson, L.L.P. (included in the Opinion
filed as Exhibit 5.1 hereto).
99.1 - Form of Benchmark Electronics, Inc. Employee Stock Purchase Plan.
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.
(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.
-4-
<PAGE>
(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.
-5-
<PAGE>
SIGNATURES
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 April 13, 1999.
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.
<TABLE>
<CAPTION>
NAME POSITION DATE
<S> <C> <C>
/S/ JOHN C. CUSTER Chairman of the APRIL 13, 1999
John C. Custer Board of Directors
/S/ DONALD E. NIGBOR Director and President APRIL 13, 1999
Donald E. Nigbor (principal executive officer)
/S/ STEVEN A. BARTON Director and Executive APRIL 13, 1999
Steven A. Barton Vice President
/S/ CARY T. FU Director and Executive APRIL 13, 1999
Cary T. Fu Vice President (principal financial
and accounting officer)
/S/ PETER G. DORFLINGER Director APRIL 13, 1999
Peter G. Dorflinger
/S/ GERALD W. BODZY Director APRIL 13, 1999
Gerald W. Bodzy
/S/ DAVID H. ARNOLD Director
David H. Arnold APRIL 13, 1999
</TABLE>
-6-
<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 Company's Annual Report on Form 10K
for fiscal the fiscal year ending December 31, 1998).
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 3.2 of the Registration
Statement).
4.4 Specimen form of certificate evidencing the Common Stock
(incorporated herein by reference to Exhibit 4.3 to the Registration
Statement).
4.5 Rights Agreement dated December 11, 1998 between the Company and
Harris Trust Savings and Bank, as Rights Agent, together with the
following exhibits thereto: Exhibit A - Form of Statement of
Resolution Establishing Series A Cumulative 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 8A filed December 11, 1998).
4.6 Summary of Rights to Purchase Preferred Stock of Benchmark
Electronics, Inc. (incorporated herein by reference to Exhibit 3
to the Company's Form 8A/A filed December 22, 1998).
5.1 Opinion of Bracewell & Patterson, L.L.P. regarding the legality of
the shares of Common Stock covered by this Registration Statement.
23.1 Consent of KPMG LLP.
23.2 Consent of Bracewell & Patterson, L.L.P. (included in the opinion
filed as Exhibit 5 hereto).
99.1 Form of Benchmark Electronics, Inc. Employee Stock Purchase Plan.
-7-
Exhibit 5.1
April 13, 1999
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 an additional 500,000 shares (the "Shares") of Common Stock, par value $.10
per share, upon the exercise of rights granted to certain eligible employees of
the Company pursuant to the terms of the Company's Employee Stock Purchase Plan
(the "Plan"). The Company now is filing a Registration Statement on Form S-8
relating to the Shares (the "Registration Statement").
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.
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
<PAGE>
Benchmark Electronics, Inc.
April 13, 1999
Page 2
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 is limited to the law 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 5.1 to the
Registration Statement.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P.
Bracewell & Patterson, L.L.P.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 22, 1999 included in Benchmark
Electronics, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1998.
KPMG LLP
Houston, Texas
April 13, 1999
EXHIBIT 99.1
BENCHMARK ELECTRONICS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Effective May 1, 1999)
1. PURPOSE
The Benchmark Electronics, Inc. Employee Stock Purchase Plan (the "Plan")
is designed to encourage and assist all employees of Benchmark Electronics, Inc.
("Benchmark") and Subsidiaries (as defined in Section 4) (hereinafter
collectively referred to as the "Company"), where permitted by applicable laws
and regulations, to acquire an equity interest in Benchmark through the purchase
of shares of common stock, $0.10 par value, of Benchmark ("Common Stock"). It is
intended that this Plan shall constitute an "employee stock purchase plan"
within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. ADMINISTRATION OF THE PLAN
The Plan shall be administered and interpreted by the Compensation
Committee (the "Committee") appointed by the Board of Directors of Benchmark
(the "Board"), which Committee shall consist of at least two (2) "non-employee
directors" within the meaning of Rule 16b-3 ("Rule 16b-3") promulgated by the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Committee shall supervise the
administration and enforcement of the Plan according to its terms and provisions
and shall have complete discretion and all powers necessary to accomplish these
purposes and discharge its duties hereunder including, but not by way of
limitation, the power to (i) employ and compensate agents of the Committee for
the purpose of administering the accounts of participating employees; (ii)
construe or interpret the Plan; (iii) determine all questions of eligibility;
and (iv) compute the amount and determine the manner and time of payment of all
benefits according to the Plan.
The Committee may act by decision of a majority of its members at a
regular or special meeting of the Committee or by decision reduced to writing
and signed by all members of the Committee without holding a formal meeting.
3. NATURE AND NUMBER OF SHARES
The Common Stock subject to issuance under the terms of the Plan shall be
shares of Benchmark's authorized but unissued shares or previously issued shares
reacquired and held by Benchmark. The aggregate number of shares which may be
issued under the Plan shall not exceed five hundred thousand (500,000) shares of
Common Stock. All shares of Common Stock purchased under the Plan shall be
counted against the five hundred thousand (500,000) share limitation.
<PAGE>
In the event of any reorganization, stock split, reverse stock split,
stock dividend, combination of shares, merger, consolidation, offering of rights
or other similar change in the capital structure of Benchmark, the Committee may
make such adjustment, if any, as it deems appropriate in the number, kind and
purchase price of the shares of Common Stock available for purchase under the
Plan and in the maximum number of shares which may be issued under the Plan,
subject to the approval of the Board and in accordance with Section 20.
4. ELIGIBILITY REQUIREMENTS
Each "Employee" (as hereinafter defined), except as described in the next
following paragraph, shall become eligible to participate in the Plan in
accordance with Section 5 on the first "Enrollment Date" (as defined therein)
following the day he or she becomes an Employee. Participation in the Plan is
voluntary.
The following Employees are not eligible to participate in the Plan:
(i) Employees who are customarily employed by the Company twenty
(20) hours or less per week or not more than five (5) months in any
calendar year; and
(ii) Employees who have not completed at least one (1) year of
service with the Company as of an Enrollment Date.
Notwithstanding anything herein to the contrary, an Employee may not
participate in this Plan if such Employee would, immediately upon enrollment in
the Plan, own directly or indirectly, or hold options or rights to acquire, an
aggregate of five percent (5%) or more of the total combined voting power or
value of all outstanding shares of all classes of stock of Benchmark or any
Subsidiary (in determining stock ownership of an individual, the rules of Code
Section 424(d) shall be applied, and the Committee may rely on representations
of fact made to it by the employee and believed by it to be true).
"Employee" shall mean any individual employed by Benchmark or any
Subsidiary (as hereinafter defined). "Subsidiary" shall mean any corporation (a)
which is in an unbroken chain of corporations beginning with Benchmark if, on or
after the Effective Date, each of the corporations other than the last
corporation in the chain owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in the chain and (b) which has adopted the Plan with the approval
of the Board.
5. ENROLLMENT
For purposes of this Plan, the first day of each Purchase Period (as
defined in Section 6) shall be an "Enrollment Date." Each eligible Employee of
Benchmark or any Subsidiary as of May 1, 1999 (the "Effective Date") may enroll
in the Plan as of the Effective Date. Each other eligible Employee of Benchmark
or a participating Subsidiary who thereafter becomes eligible to participate may
enroll in the Plan on the first Enrollment Date following the date he or she
first meets the eligibility requirements of Section 4. Any eligible Employee not
enrolling in the Plan when first eligible may enroll in the Plan on any
subsequent Enrollment Date. In order to enroll or re-enroll, an eligible
Employee must complete, sign and submit the appropriate form to the person
designated by the Committee prior to the applicable Enrollment Date.
-2-
<PAGE>
6. METHOD OF PAYMENT
Payment for shares of Common Stock is to be made as of the applicable
"Purchase Date" (as defined in Section 9) with Employee contributions, which
shall be made through payroll deductions on an after-tax basis (with no right of
prepayment) over the Plan's designated purchase period (the "Purchase Period"),
with the first such deduction commencing with the first payroll period ending
after the Enrollment Date. The initial Purchase Period under the Plan shall be
the period beginning on May 3, 1999 and ending on June 30, 1999. Thereafter,
each Purchase Period under the Plan shall be a period of six months beginning on
each July 1 and January 1 and ending on the following December 31 and June 30,
respectively, or such other period as the Committee may prescribe. Each
participating Employee (hereinafter referred to as a "Participant") will
authorize such deductions from his or her pay for each payroll period during the
Purchase Period and such amounts will be deducted in conformity with his or her
employer's payroll deduction schedule.
Each Participant may elect to contribute to his or her account in whole
percents from two percent (2%) to seventeen percent (17%) of his or her
Compensation each payroll period (or such other dollar amounts or percentages as
the Committee may establish from time to time before an Enrollment Date for all
purchases to occur during the relevant Purchase Period). In establishing other
dollar amounts and percentages of permitted contributions, the Committee may
take into account the "Maximum Share Limitation" (as defined in Section 8). The
rate of contribution shall be designated by the Participant in the enrollment
form.
"Compensation" shall mean a Participant's base pay for services rendered
in the course of employment with the Company, which shall not include overtime
pay, double time pay, bonus pay, sales commissions, relocation allowances or
compensation relating to stock option or stock appreciation awards.
A Participant may elect to increase or decrease the rate of contribution
effective as of the first day of the next Purchase Period by giving prior
written notice to the person designated by the Committee on the appropriate
form. A Participant may not elect to increase or decrease the rate of
contribution during a Purchase Period. A Participant may suspend contributions
during the Purchase Period by giving prior written notice to the person
designated by the Committee on the appropriate form, at least ten (10) days
prior to the last day of the Purchase Period. If a Participant elects to suspend
his or her contributions, any contributions made during the Purchase Period
prior to such suspension will be used to purchase stock at the end of the
Purchase Period. Any Participant who suspends contributions during any Purchase
Period cannot resume contributions during such Purchase Period and must
re-enroll in the Plan in order to participate in a subsequent Purchase Period.
7. CREDITING OF CONTRIBUTIONS AND DIVIDENDS
-3-
<PAGE>
Contributions shall be credited to a Participant's account as soon as
administratively feasible after payroll withholding. Dividends on shares of
Common Stock held in a Participant's account will be credited to such
Participant's account and used to purchase shares of Common Stock at the market
price on the date such shares are purchased. All Participants' accounts shall be
held by a bank or financial institution designated by the Committee for this
purpose (the "Custodian").
8. GRANT OF RIGHT TO PURCHASE SHARES ON ENROLLMENT
Enrollment in the Plan by an Employee on an Enrollment Date will
constitute the grant by Benchmark to the Participant of the right to purchase
shares of Common Stock under the Plan. Re-enrollment by a Participant in the
Plan will constitute a grant by Benchmark to the Participant of a new
opportunity to purchase shares of Common Stock on the Enrollment Date on which
such re-enrollment occurs. A Participant will have shares of Common Stock
purchased for him or her on the applicable Purchase Date, and he or she will
automatically be re-enrolled in the Plan on the next Enrollment Date unless,
prior to the next such Enrollment Date, such Participant (a) terminates
employment, (b) dies, (c) suspends his or her contributions to the Plan and does
not re-enroll, or (d) notifies the person designated by the Committee on the
appropriate form that he or she elects not to re-enroll.
Each right to purchase shares of Common Stock under the Plan shall have
the following terms:
(i) the right to purchase shares of Common Stock during a particular
Purchase Period shall expire on the earlier of: (A) the completion of the
purchase of shares of Common Stock on the Purchase Date applicable to the
Purchase Period, or (B) the date on which participation of such
Participant in the Plan terminates for any reason;
(ii) payment for shares of Common Stock purchased will be made only
through Participant contributions and the crediting of dividends, if
applicable, in accordance with Section 7;
(iii) purchase of shares of Common Stock will be accomplished only
in accordance with Section 9;
(iv) the purchase price per share of Common Stock will be determined
as provided in Section 9;
(v) the right to purchase shares of Common Stock (taken together
with all other such rights then outstanding under this Plan and under all
other similar stock purchase plans of Benchmark or any Subsidiary) will in
no event give a Participant the right to purchase Common Stock at a rate
which exceeds $25,000 in fair market value of the Common Stock (determined
on the applicable Grant Date) for each calendar year in which an option to
purchase shares of Common Stock granted to such Participant is outstanding
at any time. Such limit shall be referred to herein as the "Maximum Share
Limitation"; and
(vi) the right to purchase shares of Common Stock will in all
respects be subject to the terms and conditions of the Plan, as
interpreted by the Committee from time to time.
-4-
<PAGE>
9. PURCHASE OF SHARES
The right to purchase shares of Common Stock granted by Benchmark under
the Plan is for the term of a Purchase Period. The Fair Market Value of the
Common Stock to be purchased during such Purchase Period will be determined on
the first trading day during the Purchase Period or such other trading date
designated by the Committee (the "Grant Date"). The Fair Market Value of the
Common Stock will again be determined in the same manner on the last trading day
during the Purchase Period or such other trading date designated by the
Committee (the "Purchase Date"); however, in no event shall the Committee, in
the exercise of its discretion, designate a Purchase Date beyond twenty-seven
(27) months from the related Grant Date or otherwise fail to meet the
requirements of Section 423(b)(7) of the Code. These dates constitute the date
of grant and the date of exercise for valuation purposes of Section 423 of the
Code.
"Fair Market Value" means the closing price for a share of Common Stock as
reported in The Wall Street Journal's NYSE-Composite Transactions listing for
such day (corrected for obvious typographical errors), or if shares of Common
Stock are not reported in such listing, the closing price on the largest
national securities exchange (based on the aggregate dollar value of securities
listed) on which such shares are listed or traded, or if such shares are not
listed or traded on any national securities exchange, then the average of the
reported "high" and "low" sales prices for such shares in the over-the-counter
market, as reported on the National Association of Securities Dealers Automated
Quotations System, or, if such prices shall not be reported thereon, the average
between the closing bid and asked prices so reported, or, if such prices shall
not be reported, then the average closing bid and asked prices reported by the
national Quotation Bureau Incorporated, or, in all other cases, the value
established by the Committee in good faith.
As of the Purchase Date, the Custodian shall apply the contributions to
each Participant's account during the Purchase Period to the purchase of shares
of Common Stock. The number of shares of Common Stock to be purchased for each
Participant shall be determined by dividing (i) the amount contributed to the
Participant's account during the Purchase Period by (ii) the purchase price for
the Purchase Period. The purchase price for the shares of Common Stock purchased
during a Purchase Period shall be the lesser of:
(i) eighty five percent (85%) of the Fair Market Value of Common
Stock on the Grant Date; or
(ii) eighty five percent (85%) of the Fair Market Value of Common
Stock on the Purchase Date.
-5-
<PAGE>
Certificates evidencing shares of Common Stock purchased shall be issued
to the Custodian to be held on behalf of each Participant as soon as
administratively feasible after the Purchase Date. Shares of Common Stock that
are held by the Custodian shall be held in book entry form. Any cash equal to
less than the price of a whole share of Common Stock shall be credited to a
Participant's account on the Purchase Date and carried forward in his or her
account for application during the next Purchase Period. Any Participant who
purchases stock at the end of a Purchase Period and is not re-enrolled in the
Plan for the next Purchase Period will receive a certificate for the number of
shares held in his or her account and any cash or dividends remaining in his or
her account. Any Participant who terminates employment will receive a
certificate for the number of shares held in his or her account and a cash
refund attributable to amounts equal to less than the price of a whole share,
and any accumulated contributions and dividends. If for any reason the purchase
of shares of Common Stock with a Participant's allocations to the Plan exceeds
or would exceed the Maximum Share Limitation, such excess amounts shall be
refunded to the Participant as soon as practicable after such excess has been
determined to exist.
If as of any Purchase Date the shares of Common Stock authorized for
purchase under the Plan are exceeded, contributions shall be reduced
proportionately to eliminate the excess. Any funds that cannot be applied to the
purchase of shares of Common Stock due to excess contributions shall be refunded
as soon as administratively feasible. The Committee in its discretion may also
provide that excess contributions may be carried over to the next Purchase
Period under this Plan or any successor plan according to the regulations set
forth under Section 423 of the Code.
10. WITHDRAWAL OF SHARES AND SALE OF SHARES
(a) WITHDRAWAL OF SHARES. A Participant may elect to withdraw at any
time (without withdrawing from participation in the Plan) shares of Common
Stock in his or her account by giving notice to the Custodian. Upon
receipt of such notice, the Custodian will arrange for the issuance and
delivery of certificates for such shares held in the Participant's account
as soon as administratively feasible. The Participant may be charged a
reasonable fee for each such certificate.
(b) SALE OF SHARES. A Participant may sell shares which are held in
his or her account (unless such transaction would be deemed to be
matchable for short-swing liability purposes under Section 16(b) of the
Exchange Act) by giving notice to the Custodian. Upon receipt of such
notice, the Custodian will arrange for the sale of such Participant's
shares of Common Stock. Proceeds of a sale of Common Stock held in a
Participant's account shall be paid to the Participant, less any fees
related to the sale as described in Section 16.
-6-
<PAGE>
11. TERMINATION OF PARTICIPATION
The right to participate in the Plan terminates immediately when a
Participant ceases to be an Employee for any reason whatsoever (including death,
unpaid disability or when the Participant's employer ceases to be a Subsidiary)
or the Participant otherwise becomes ineligible. In such event, any
contributions made to the Plan by the Participant during the Purchase Period in
which the termination of participation occurs shall be paid to the Participant
or the party entitled to payments under Section 13 as soon as administratively
feasible. Participation terminates immediately after the Purchase Date if a
Participant is not re-enrolled in the Plan for the next Purchase Period or if a
Participant has suspended contributions during any Purchase Period and has not
re-enrolled in the Plan for the next Purchase Period. After termination of
participation for any reason other than the reasons set forth in the first
sentence of this paragraph, any contributions made to the Plan by the
Participant during the Purchase Period in which the termination of participation
occurs shall be used to purchase shares of Common Stock on the Purchase Date.
With respect to a termination of participation for reasons other than death, the
Committee shall direct the Custodian to pay to the Participant or his or her
legal representative all cash amounts representing any fractional shares of
Common Stock credited to his or her account, and (unless participation has
resumed) cause a certificate for the number of whole shares of Common Stock held
in his or her account to be delivered to the Participant or his or her legal
representative as soon as administratively feasible. For purposes of the Plan, a
Participant is not deemed to have terminated his or her employment if he or she
transfers employment from Benchmark to a Subsidiary, or vice versa, or transfers
employment between Subsidiaries.
12. UNPAID LEAVE OF ABSENCE
Shares of Common Stock will be purchased for a Participant's account on
the Purchase Date next following commencement of an unpaid leave of absence by
such Participant. The number of shares of Common Stock to be purchased will be
determined by applying to the purchase the amount of the Participant's
contributions made during the Purchase Period up to the commencement of such
unpaid leave of absence. If the Participant's unpaid leave of absence both
commences and terminates during the same Purchase Period and he or she has
resumed eligible employment prior to the Purchase Date related to that Purchase
Period, he or she may also resume contributions immediately, and shares of
Common Stock will be purchased for him or her on such Purchase Date as otherwise
provided in Section 9.
13. DEATH
Each Participant may designate (in accordance with the procedure
established by the Custodian) one or more beneficiaries in the event of death
and may, in his or her sole discretion, change such designation at any time. Any
such designation shall be effective upon receipt by the Custodian and shall
control over any disposition by will or otherwise.
As soon as administratively feasible after the death of a Participant, the
Custodian shall pay to the Participant's designated beneficiaries or, in the
absence of such designation, to the executor, administrator or other legal
representative of the Participant's estate, cash amounts representing any
fractional shares of Common Stock credited to his account, and shall cause a
certificate for the number of whole shares of Common Stock held in the
Participant's account to be delivered to the Participant's designated
beneficiaries or, in the absence of such designation, to the executor,
administrator or other legal representative of the Participant's estate. Such
payment shall relieve Benchmark of further liability to the deceased Participant
with respect to the Plan. If more than one beneficiary is designated, each
beneficiary shall receive an equal portion of the account unless the Participant
has given express contrary instructions.
-7-
<PAGE>
14. ASSIGNMENT
Except as provided in Section 13, the rights of a Participant under the
Plan will not be assignable or otherwise transferable by the Participant, other
than by will or the laws of descent and distribution. No purported assignment or
transfer of such rights of a Participant under the Plan, whether voluntary or
involuntary, by operation of law or otherwise, shall vest in the purported
assignee or transferee any interest or right therein whatsoever, but immediately
upon such assignment or transfer, or any attempt to make the same, such rights
shall terminate and become of no further effect. If this provision is violated,
the Participant's election to purchase Common Stock shall terminate, and the
only obligation of Benchmark remaining under the Plan will be to pay to the
person entitled thereto the amount then credited to the Participant's account.
No Participant may create a lien on any funds, securities, rights or other
property held for the account of the Participant under the Plan, except to the
extent that there has been a designation of beneficiaries in accordance with the
Plan, and except to the extent permitted by will or the laws of descent and
distribution if beneficiaries have not been designated. A Participant's right to
purchase shares of Common Stock under the Plan shall be exercisable only during
the Participant's lifetime and only by him or her.
15. VOTING OF COMMON STOCK
The Custodian will vote the Common Stock held by it in accordance with
instructions received from Participants with respect to shares of Common Stock
credited to the Participants' accounts. The Custodian will transmit to
Participants all proxy material and other reports furnished by Benchmark to its
stockholders.
16. COSTS
All costs and expenses incurred in administering this Plan shall be paid
by Benchmark. Any (i) brokerage fees for the sale of shares of Common Stock
purchased under the Plan, or (ii) fees for registering shares of Common Stock
held by the Custodian in a Participant's name shall be paid by the Participant.
17. REPORTS
At the end of each calendar quarter, Benchmark shall provide or cause to
be provided to each Participant a report of his or her contributions and the
number of shares of Common Stock purchased with such contributions by that
Participant on each Purchase Date.
18. EQUAL RIGHTS AND PRIVILEGES
-8-
<PAGE>
All eligible Employees shall have equal rights and privileges with respect
to the Plan so that the Plan qualifies as an "employee stock purchase plan"
within the meaning of Code Section 423 or any successor provision of the Code
and related regulations. Any provision of the Plan which is inconsistent with
Code Section 423 or any successor provision of the Code shall without further
act or amendment by Benchmark be reformed to comply with the requirements of
Code Section 423. This Section 18 shall take precedence over all other
provisions in the Plan.
19. RIGHTS AS STOCKHOLDERS
A Participant will have no rights as a stockholder under the election to
purchase until he or she becomes a stockholder as herein provided. A Participant
will become a stockholder with respect to shares of Common Stock for which
payment has been completed as provided in Section 9.
20. AMENDMENT AND TERMINATION
The Board may amend or terminate the Plan at any time insofar as permitted
by law. No amendment shall be effective unless within one (1) year after it is
adopted by the Board it is approved by the stockholders of Benchmark:
(i) if and to the extent such amendment is required to be approved
by stockholders to continue the exemption provided for in Rule 16b-3; or
(ii) if and to the extent such amendment is required to be approved
by stockholders in order to cause the rights granted under the Plan to
purchase shares of Common Stock to meet the requirements of Section 423 of
the Code (or any successor provision).
The Plan shall terminate after all Common Stock issued under the Plan has
been purchased, unless terminated earlier by the Board or unless additional
Common Stock is issued under the Plan with the approval of the stockholders. In
the event the Plan is terminated, the Committee may elect to terminate all
outstanding rights to purchase shares of Common Stock under the Plan either
immediately or upon completion of the purchase of shares of Common Stock on the
next Purchase Date, unless the Committee has designated that the right to make
all such purchases shall expire on some other designated date occurring prior to
the next Purchase Date. If the rights to purchase shares of Common Stock under
the Plan are terminated prior to expiration, all funds contributed to the Plan
which have not been used to purchase shares of Common Stock shall be returned to
the Participants as soon as administratively feasible.
21. BOARD AND STOCKHOLDER APPROVAL; EFFECTIVE DATE
This Plan was approved by the Board on April 13, 1999. The Plan will
become effective as of May 1, 1999, upon approval by the holders of a majority
of the shares of outstanding Common Stock of Benchmark within one year after
approval by the Board.
22. GOVERNMENTAL APPROVALS OR CONSENTS
-9-
<PAGE>
This Plan and any offering or sale made to Employees under it are subject
to any governmental approvals or consents that may be or become applicable in
connection therewith. Subject to the provisions of Section 20, the Board may
make such changes in the Plan and include such terms in any offering under the
Plan as may be desirable to comply with the rules or regulations of any
governmental authority.
23. LISTING OF SHARES AND RELATED MATTERS
If at any time the Board or the Committee shall determine, based on
opinion of legal counsel, that the listing, registration or qualification of the
shares of Common Stock covered by the Plan upon any national securities exchange
or reporting system or under any state or federal law is necessary or desirable
as a condition of, or in connection with, the sale or purchase of shares of
Common Stock under the Plan, no shares of Common Stock will be sold, issued or
delivered unless and until such listing, registration or qualification shall
have been effected or obtained, or otherwise provided for, free of any
conditions not acceptable to legal counsel.
24. EMPLOYMENT RIGHTS
The Plan shall neither impose any obligation on Benchmark or on any
Subsidiary to continue the employment of any Participant, nor impose any
obligation on any Participant to remain the employ of Benchmark or of any
Subsidiary.
25. WITHHOLDING OF TAXES
The Committee may make such provisions as it may deem appropriate for the
withholding of any taxes which it determines is required in connection with the
purchase of Common Stock under the Plan.
26. RESPONSIBILITY AND INDEMNITY
Neither Benchmark, the Board, the Committee, any Subsidiary, nor any
member, officer, agent or employee of any of them, shall be liable to any
Participant under the Plan for any mistake of judgment or for any omission or
wrongful act unless resulting from gross negligence or willful misconduct.
Benchmark will indemnify and hold harmless the Board, the Committee, any
Subsidiary, and any member, officer, agent or employee of any of them against
any claim, loss, liability or expense arising out of the Plan, except such as
may result from the gross negligence or willful misconduct of such entity or
person.
27. GOVERNING LAW
The Plan and rights to purchase shares of Common Stock that may be granted
hereunder shall be governed by and construed and enforced in accordance with the
laws of the state of Texas.
-10-
<PAGE>
28. USE OF GENDER
The gender of words used in the Plan shall be construed to include
whichever may be appropriate under any particular circumstances of the
masculine, feminine or neuter genders.
29. OTHER PROVISIONS
The agreements to purchase shares of Common Stock under the Plan shall
contain such other provisions as the Committee and the Board shall deem
advisable, provided that no such provision shall in any way be in conflict with
the terms of the Plan.
ADOPTED effective May 1, 1999.
BENCHMARK ELECTRONICS, INC.
By: /S/ CARY T. FU
Name: CARY T. FU
Title: EXECUTIVE VICE PRESIDENT
-11-
