General Counsel






 





 


Exhibit 10.3


 


PERFORMANCE-BASED RESTRICTED
STOCK UNIT AWARD AGREEMENT


Performance-Based
Restricted Stock Unit Award Agreement under the Benchmark Electronics, Inc.
2010 Omnibus Incentive Compensation Plan, 
dated as of ____________, between Benchmark Electronics, Inc. (the “Company”),
a Texas corporation, and [NAME].


This Performance-Based Restricted Stock Unit Award Agreement
(this “Award Agreement”) sets forth the terms and conditions of a target
award (the “Award”) of _______ restricted
stock units that are subject to the terms and conditions specified herein (“RSUs”)
and that are being granted to you on the date hereof under the Benchmark
Electronics, Inc. 2010 Omnibus Incentive Compensation Plan (the “Plan”). 
Each RSU subject to this Award constitutes an unfunded and unsecured promise of
the Company to deliver (or cause to be delivered) to you, subject to the terms
of this Award Agreement, a share of the Company’s common stock, $0.10 par value
(a “Share”), as set forth in Section 3 of this Award Agreement.


THIS AWARD IS SUBJECT
TO ALL TERMS AND CONDITIONS OF THE PLAN AND THIS AWARD AGREEMENT, INCLUDING THE
DISPUTE RESOLUTION PROVISIONS SET FORTH IN SECTION 10 OF THIS AWARD
AGREEMENT.  BY SIGNING YOUR NAME BELOW, YOU SHALL HAVE CONFIRMED YOUR
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AWARD AGREEMENT.


SECTION 1.  The Plan.  This Award is made
pursuant to the Plan, all the terms of which are hereby incorporated in this
Award Agreement.  In the event of any conflict between the terms of the Plan
and the terms of this Award Agreement, the terms of the Plan shall govern.  In
the event of any conflict between the terms of this Award Agreement and the
terms of any individual employment agreement between you and the Company or any
of its Subsidiaries (an “Employment Agreement”), the terms of your
Employment Agreement shall govern.


SECTION 2.  Definitions.   Capitalized terms
used in this Award Agreement that are not defined in this Award Agreement have
the meanings as used or defined in the Plan.  As used in this Award Agreement,
the following terms have the meanings set forth below:


(a) 
“Business Day” means a day that is not a Saturday, a Sunday or a
day on which banking institutions are legally permitted to be closed in the
City of New York.


(b) 
“Cause” means the occurrence of any one of the following:


(i)  your gross
negligence in the performance of your duties with the Company, which gross
negligence results in a material adverse effect on the 




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Company,
provided that no such gross negligence shall constitute “Cause” if it relates
to an action taken or omitted by you in the good faith, reasonable belief that
such action or omission was in or not opposed to the best interests of the
Company;


(ii)  your
habitual neglect or disregard of your duties with the Company that is
materially and demonstrably injurious to the Company, after written notice from
the Company stating the duties you have failed to perform;


(iii)  your
engaging in conduct or misconduct that materially harms the reputation or
financial position of the Company;


(iv)  your
obstruction, impedance or failure to materially cooperate with an investigation
authorized by the Board, a self-regulatory organization empowered with
self-regulatory responsibilities under Federal or state laws, or a governmental
department or agency; or


(v)  your
conviction of a felony, provided that no such conviction will constitute
“Cause” if it relates to an action taken or omitted by you in the good faith,
reasonable belief that such action or omission was in or not opposed to the
best interests of the Company.


(c) 
“Good Reason” means the occurrence of any one of the following:


(i)  a material
diminution of your duties or responsibilities;


(ii)  a greater
than 10% reduction in your base salary, annual bonus opportunity or long-term
incentive compensation opportunity; or


(iii)  a material
breach by the Company of any provision of your Employment Agreement or any
other agreement between you and the Company.


A termination of your employment by you for Good Reason shall
be effectuated by giving the Company written notice (“Notice of Termination
for Good Reason”), not later than 90 days following the date of the
occurrence of the circumstance that constitutes Good Reason, setting forth in
reasonable detail the specific conduct of the Company or any of its Subsidiaries
that constitutes Good Reason and the specific provisions of this Award
Agreement, your Employment Agreement or any other agreement between you and the
Company on which you relied.  The Company shall be entitled, during the 30-day
period following receipt of a Notice of Termination for Good Reason, to cure
the circumstances that gave rise to Good Reason, provided that the Company
shall be entitled to waive its right to cure or reduce the cure period by
delivery of written notice to that effect to you (such 30-day or shorter
period, the “Cure Period”).  If, during the Cure Period, such
circumstance is remedied, you shall not be permitted to terminate your
employment for Good Reason as a result of such circumstance.  If, at the end of
the Cure Period, the circumstance that constitutes Good Reason has not been
remedied, you shall be entitled to terminate your employment for Good Reason
during the 90-day period that follows the end of the Cure Period (the “Termination
Period”).  If you do not terminate 




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your employment
during the Termination Period, you shall not be permitted to terminate your
employment for Good Reason as a result of such circumstance.


 


(d) 
“Payment Formula” means the formula set forth in ________ that
determines the number of RSUs that shall vest pursuant to this Award Agreement
based on whether, or the extent to which, the Performance Goals are achieved.


(e) 
“Performance Goals” means the goals set forth in ________ A, the
achievement of which determine the number of RSUs that shall vest pursuant to
this Award Agreement.


(f) 
“Performance Period” means the period of time specified in
________ A, over which the achievement of the Performance Goals shall be
measured.


SECTION 3.  Vesting and Delivery.  (a)  Performance-Based Vesting.  

Except as otherwise provided in your Employment Agreement or Section 3(b) of
this Award Agreement, the vesting of your rights with respect to the RSUs shall
be contingent on the achievement of the Performance Goals as set forth in
Attachment A.  Accordingly, unless otherwise provided in your Employment
Agreement or Section 3(b) of this Award Agreement, your rights with respect to
the RSUs subject to this Award Agreement shall not become vested unless and
until the Committee, in its sole discretion, determines whether, or the extent
to which, the Performance Goals have been achieved.  As soon as reasonably
practicable following the end of the Performance Period and in no event later
than March 15 of the calendar year following the calendar year in which the
Performance Period ends, the Committee shall determine whether, or the extent
to which, the Performance Goals have been achieved (the date of such
determination, the “Determination Date”) and shall provide notice to you
of such determination as soon as reasonably practicable following such
determination in accordance with Section 11 of this Award Agreement.  Upon such
determination by the Committee and subject to the provisions of the Plan and
this Award Agreement (including Section 3(c) of this Award Agreement), you
shall vest in that percentage of the target number of RSUs that is determined
pursuant to the Payment Formula set forth in ________.  Notwithstanding the
foregoing, pursuant to Section 4 of this Award Agreement and except as
otherwise provided in your Employment Agreement or Section 3(b) of this Award
Agreement, in order for your rights with respect to any RSUs to become vested,
you must be employed by the Company or one of its Subsidiaries on the last day
of the Performance Period and by March 15th of the following calendar
year.


(b) 
Vesting following a Change of Control.  If, during the two-year
period immediately following a Change of Control, your employment is terminated
by the Company or any of its Subsidiaries without Cause or you terminate your
employment for Good Reason on or prior to the last day of the Performance
Period, then you shall vest in 100% of the target number of RSUs set forth in
________, and the date of such termination of employment shall be deemed to be
the Determination Date.


(c) 
Negative Discretion.  This Award is intended to constitute a
Performance Compensation Award that qualifies as “qualified performance-based 




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compensation” under Section 162(m) of the Code and,
therefore, is subject to all provisions of Section 6(e) of the Plan, including
the Committee’s authority to reduce or eliminate the number of RSUs awarded to
you pursuant to this Award Agreement, even if the Performance Goals have been
achieved and without regard to your Employment Agreement.


(d) 
Delivery of Shares.  As soon as reasonably practicable following
the Determination Date and in no event later than March 15 of the calendar year
following the calendar year in which (i) the Performance Period ends or (ii) in
the event Section 3(b) of this Award Agreement applies, the Determination Date occurs,
the Company shall deliver to you one Share for each RSU awarded to you pursuant
to this Award Agreement that has vested in accordance with the terms of this
Award Agreement, subject to tax withholding provisions of Section 7 (a) below.


(e) 
Equity Ownership Policy.  Because the Company believes that stock
ownership by senior management further aligns their interest with the interests
of the company’s shareholders, the Company has established an equity ownership
policy for certain of senior management.  According to that policy, the Company
expects you to retain 20% of each vesting of RSUs until you own during the term
of your employment with the Company shares of stock having a market value equal
to _______ times your annual base salary (such salary measured as of January 1st
of the year of the Vesting Date).


SECTION 4.  Forfeiture of RSUs.  Unless the
Committee determines otherwise, and except as otherwise provided in your
Employment Agreement or Section 3(b) of this Award Agreement, if your rights
with respect to any RSUs awarded to you pursuant to this Award Agreement have
not become vested prior to the date on which your employment with the Company
and its Subsidiaries terminates, your rights with respect to such RSUs shall
immediately terminate, and you shall be entitled to no further payments or
benefits with respect thereto.


SECTION 5.  Voting Rights; Dividend Equivalents. 
Prior to the date on which Shares are delivered to you in settlement of the
RSUs pursuant to this Award Agreement, you shall not be entitled to exercise any
voting rights with respect to the Shares underlying such RSUs and shall not be
entitled to receive dividends or other distributions with respect to such
Shares.


SECTION 6.  Non-Transferability of RSUs. 
Unless otherwise provided by the Committee in its discretion, RSUs may not be
sold, assigned, alienated, transferred, pledged, attached or otherwise
encumbered except as provided in Section 9(a) of the Plan.  Any purported
sale, assignment, alienation, transfer, pledge, attachment or other encumbrance
of an RSU in violation of the provisions of this Section 6 and Section
9(a) of the Plan shall be void. 


SECTION 7.  Withholding, Consents and Legends. 
(a)  Withholding.   The delivery of Shares pursuant to Section 3 of this
Agreement is conditioned on satisfaction of any applicable withholding taxes in
accordance with Section 9(d) of the Plan.  In the 




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event
that there is withholding tax liability in connection with the settlement of
RSUs, you may satisfy, in whole or in part, any withholding tax liability by
having the Company withhold from the Shares you would be entitled to receive
upon settlement of the RSUs a number of Shares having a Fair Market Value
(which shall either have the meaning set forth in the Plan or shall have such
other meaning as determined by the Company in accordance with applicable
withholding requirements) equal to such withholding tax liability; provided,
however, that if you are an officer subject to Section 16 of the Exchange Act,
such withholding tax liability shall be satisfied by the Company withholding
such number of Shares from the Shares you would be entitled to receive upon
settlement of the RSUs, without any election on your part.


(b) 
Consents; Compliance with Law.  Your rights in respect of the
RSUs are conditioned on the receipt to the full satisfaction of the Committee
of any required consents that the Committee may determine to be necessary or
advisable (including your consenting to the Company’s supplying to any
third-party record-keeper of the Plan such personal information as the
Committee deems advisable to administer the Plan) and, in accordance with
Section 9(l) of the Plan, subject to the Committee’s determination that the
issuance of Shares pursuant to this Award Agreement is compliant with
applicable law. 


(c) 
Legends.   The Company may affix to certificates for Shares issued
pursuant to this Award Agreement any legend that the Committee determines to be
necessary or advisable (including to reflect any restrictions to which you may
be subject under any applicable securities laws).  The Company may advise the
transfer agent to place a stop order against any legended Shares.


SECTION 8.  Successors and Assigns of the
Company.  The terms and conditions of this Award Agreement shall be binding
upon and shall inure to the benefit of the Company and its successors and
assigns.


SECTION 9.  Committee Discretion.  Subject
to the terms of this Award Agreement and your Employment Agreement, the
Committee shall have discretion with respect to any actions to be taken or
determinations to be made in connection with this Award Agreement, and its
determinations shall be final, binding and conclusive.


SECTION 10.  Dispute Resolution.  (a)  Jurisdiction
and Venue.  Notwithstanding any provision in your Employment Agreement, you
and the Company hereby irrevocably submit to the exclusive jurisdiction of
(i) the United States District Court for the Southern District of Texas
and (ii) the courts of the State of Texas for the purposes of any action,
suit or other proceeding arising out of this Award Agreement or the Plan.  You
and the Company agree to commence any such action, suit or other proceeding
either in the United States District Court for the Southern District of Texas
or, if such action, suit or other proceeding may not be brought in such court
for jurisdictional reasons, in the courts of the State of Texas.  You and the
Company further agree that service of any process, summons, notice or document
by U.S. registered mail to the applicable address set forth in Section 11 of
this Award Agreement shall be effective service of process for any action, suit
or other proceeding in Texas with respect to any 




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matters
to which you have submitted to jurisdiction in this Section 10(a).  You and the
Company irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or other proceeding arising out of this Award
Agreement or the Plan in (A) the United States District Court for the
Southern District of Texas or (B) the courts of the State of Texas, and
hereby and thereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such action, suit or other
proceeding brought in any such court has been brought in an inconvenient forum.


(b) 
Waiver of Jury Trial.  You and the Company hereby waive, to the
fullest extent permitted by applicable law, any right either of you may have to
a trial by jury in respect to any litigation directly or indirectly arising out
of, under or in connection with this Award Agreement or the Plan. 


(c) 
Confidentiality.   You hereby agree to keep confidential the existence
of, and any information concerning, a dispute described in this
Section 10, except that you may disclose information concerning such
dispute to the court that is considering such dispute or to your legal counsel,
accountants and other representatives (provided that such counsel, accountants
and other representatives agree not to disclose any such information other than
as necessary to the prosecution or defense of the dispute).


SECTION 11.  Notice.   All notices, requests,
demands and other communications required or permitted to be given under the
terms of this Award Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand or overnight courier or three Business
Days after they have been mailed by U.S. registered mail, return receipt
requested, postage prepaid, addressed to the other party as set forth below:


	
  If to the Company:

  	
  Benchmark Electronics, Inc.

  3000 Technology Drive

  Angleton, Texas 77515

  Attention:  General Counsel

   

  
	

  If to you:

  	
  To your address as most recently supplied to the Company and
  set forth in the Company’s records

   

  






 


The parties may change the
address to which notices under this Award Agreement shall be sent by providing
written notice to the other in the manner specified above.


SECTION 12.  Governing
Law.  This Award Agreement shall be deemed
to be made in the State of Texas, and the validity, construction and effect of
this Award Agreement in all respects shall be determined in accordance with the
laws of the State of Texas, without giving effect to the conflict of law
principles thereof.


SECTION 13.  Headings
and Construction.  Headings are given to
the Sections and subsections of this Award Agreement solely as a convenience to
facilitate 




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reference. Such headings shall not be deemed
in any way material or relevant to the construction or interpretation of this
Award Agreement or any provision thereof.  Whenever the words “include”,
“includes” or “including” are used in this Award Agreement, they shall be
deemed to be followed by the words “but not limited to”.  The term “or”
is not exclusive.


SECTION 14.  Amendment of this Award Agreement. 
The Committee may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate this Award Agreement
prospectively or retroactively; provided, however, that any such
waiver, amendment, alteration, suspension, discontinuance, cancelation or
termination that would materially and adversely impair your rights under this
Award Agreement shall not to that extent be effective without your consent (it
being understood, notwithstanding the foregoing proviso, that this Award
Agreement and the RSUs shall be subject to the provisions of Section 7(c)
of the Plan).


SECTION 15.  Section 409A.  (a)  For purposes of Section 409A of the Code (“Section 409A”), it is intended that
amounts payable pursuant to this Award Agreement qualify for the short-term
deferral exception under Treas. Reg. Section 1.409A-1(b)(4) or any successor
thereto, and all provisions of this Award Agreement shall be construed and
interpreted in a manner consistent with such exception.


(b) 
In the event that it is determined that any amounts payable pursuant to
this Award Agreement do not qualify for the short-term deferral exception under
Treas. Reg. Section 1.409A-1(b)(4) or any successor thereto, it is intended
that the provisions of this Award Agreement comply with Section 409A, and
all provisions of this Award Agreement shall be construed and interpreted in a
manner consistent with the requirements for avoiding taxes or penalties under
Section 409A and any similar state or local law.


(c)  Neither you nor any of your creditors or
beneficiaries shall have the right to subject any deferred compensation (within
the meaning of Section 409A) payable under this Award Agreement to any
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment.  Except as permitted under Section 409A, any
deferred compensation (within the meaning of Section 409A) payable to you
or for your benefit under this Award Agreement may not be reduced by, or offset
against, any amount owing by you to the Company or any of its Subsidiaries.


(d) 
To the extent required by Section 409A, any amount payable under
the Award Agreement that constitutes deferred compensation (within the meaning
of Section 409A) subject to, and not exempt from, Section 409A,
payable or provided to you upon a termination of employment shall only be paid
or provided to you upon your separation from service (within the meaning of Section
409A).  If, at the time of your separation from service, (i) you are a
specified employee (within the meaning of Section 409A and using the
identification methodology selected by the Company from time to time) and
(ii) the Company shall make a good faith determination that an amount
payable under this Award Agreement constitutes deferred compensation the
payment of which is required to be delayed pursuant to the six-month delay rule
set forth in 




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Section 409A in order to avoid taxes
or penalties under Section 409A, then the Company (or its Subsidiary, as
applicable) shall not pay such amount on the otherwise scheduled payment date
but shall instead accumulate such amount and pay it, without interest, on the
first business day after such six-month period.


(e) 
You shall be solely responsible and liable for the satisfaction of all
taxes and penalties that may be imposed on you or for your account in
connection with this Award Agreement (including any taxes and penalties under
Section 409A), and neither the Company nor any of its Subsidiaries shall
have any obligation to indemnify or otherwise hold you harmless from any or all
such taxes or penalties.


SECTION 16.  Counterparts.   This Award
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.


IN WITNESS WHEREOF, the parties have duly executed this Award Agreement as
of the date first written above.


	
  benchmark electronics, Inc.,

  
	
  by

  
	
   

  	
   

  
	
   

  	
  Name: 

  
	
   

  	
  Title:

  






 


	
    

  
	
   

  
	
   

  	
   

  
	
           

  	
  NAME /Date

  






 









 








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