Benchmark
  Electronics, Inc.

  3000
  Technology Drive

  Angleton,
  TX 77515

  979-849-6550

  fax:
  979-848-5224

  






May 15, 2017


Mr. Jon J. King


 


 


 


Dear Jon:


The purpose of
this agreement (the “Agreement”) is to (i) acknowledge your transition
out of your current role as Executive Vice President-Global Operations and the
corresponding termination of the Employment Agreement, dated as of December 1,
2005, between you and Benchmark Electronics, Inc. (“Company”) as the
same may have been amended to date (the “Prior Agreement”), and (ii) set
forth the terms and conditions by which you will continue providing services to
Company, in each case effective as of the hiring of your successor as Executive
Vice President-Global Operations (the “Effective Date”).    


1. Termination
of Prior Agreement; Position; Term.  (a) As of the Effective Date, the
Prior Agreement will terminate and be of no force and effect; provided 
that your covenants contained in Sections 8 and 9 of the Prior Agreement
will survive the termination of the Prior Agreement in accordance with their
terms, in each case with the last day of the Term (as defined below) being
deemed to be the last day of your term of employment under the Prior
Agreement.  You acknowledge and agree that you will
not be entitled to any severance or other payment under the Prior Agreement or
any other plan, program, or agreement of Company in connection with the
termination of the Prior Agreement and your transition to part-time employment
as described herein.


(b)  Subject
to Section 5, effective as of the Effective Date, you will become a
part-time employee of Company and your title will become Vice
President-Operational Excellence, reporting to the Executive Vice
President-Global Operations, or such other title and officer as may be designated
by the Chief Executive Officer of Company.  The anticipated hours for this
position will average out to 80 hours monthly.  While you render services to
Company, you will be free to engage in other employment, consulting, or other
business activity so long as such actions do not create a conflict of interest
with, or interfere with your duties and obligations to, Company.  By signing
this Agreement, you confirm to Company that you have no contractual commitments
or other legal obligations that would prohibit you from performing your duties
for Company.  You will continue to be bound by the Benchmark Code of Conduct
and the Confidential Information, Proprietary Rights and Arbitration
Agreement.  Your transition out of your current role as Executive Vice
President-Global Operations and the corresponding termination of the Prior
Agreement is not intended to constitute a “separation from service” for
purposes of Section 409A of the Internal Revenue Code of 1986, and the
regulations promulgated thereunder (“Section 409A”) and you and
Company agree and anticipate that the level of services that you will perform
following the Effective Date will exceed the maximum level that is presumed to
result in a “separation from service” in accordance with Treasury Regulation
Section 1.409A-1(h)(1)(ii).


(c)  You will
perform such duties as are assigned to you from time to time over the course of
your ongoing employment, and, while subject to change at the discretion of
Company, your initial duties will be as follows:


·        
Lead
Company’s overall equipment efficiency and operational excellence initiative.


·        
Serve
as special projects liaison for the Executive Vice President-Global Operations.






 












 





·        
Perform
such other duties as assigned from time to time by the Executive Vice
President-Global Operations or Chief Executive Officer.


(c) 
This Agreement will become effective on the Effective Date and will continue
until the earlier of October 1, 2020 or such date that this Agreement is
terminated (i) by you for any reason (including under the circumstances
described in Section 5), (ii) in the event of your death, or (iii) by
Company in the event of your Disability or termination for Cause (each as
defined below) (the “Term”). 


2.
Compensation.  You will retain your current base salary through December
31, 2017; effective January 1, 2018, your annual base salary will be $144,000,
payable in accordance with Company’s standard payroll schedule throughout the
Term. You will remain eligible for your bonus for 2017 subject to the terms of
the governing plan, including, but not limited to, the Company’s discretion to
determine the amount, if any, of payout and the requirement that you be
employed as of the date payments are made to participants; effective January 1,
2018, you will no longer be eligible for any Company bonus plan (except for the
payout of any bonus earned for 2017).


For purposes
of this Agreement:


(a)
“Cause” shall mean the Employee's (i) gross negligence in the
performance of his duties with the Company, which gross negligence results in a
material adverse effect on the Company, provided that no such gross negligence
will constitute "Cause" if it relates to an action taken or omitted
by the Employee in the good faith, reasonable belief that such action or
omission was in or not opposed to the best interests of the Company; (ii)
habitual neglect or disregard of his duties with the Company that is materially
and demonstrably injurious to the Company, after written notice from the
Company stating the duties the Employee has failed to perform; (iii) engaging
in conduct or misconduct that materially harms the reputation or financial
position of the Company; (iv) obstruction, impedance, or failure to materially
cooperate with an investigation authorized by the Board, a self-regulatory
organization empowered with self-regulatory responsibilities under federal or
state laws, or a governmental department or agency; or (v) conviction of a
felony, provided that no such conviction will constitute "Cause" if
it relates to an action taken or omitted by the Employee in the good faith,
reasonable belief that such action or omission was in or not opposed to the
best interest of the Company.  The Employee's employment may not and shall not
be terminated for Cause unless the (1) Board of Directors provides the Employee
with written notice stating the conduct alleged to give rise to such Cause, (2)
the Employee has been given an opportunity to be heard by the Board, (3) in the
case of clause (i) or (ii) of the definition of Cause, the Employee has been
given a reasonable time to cure, and the Employee has not cured such negligence
or failure to the reasonable satisfaction of the Board, and (4) the Board has
approved such termination by majority vote of the members of the Board of
Directors, excluding the Employee.


(b)  “Disability” 
shall mean, as determined in the sole discretion of Company, your inability to
perform the essential functions of your job, with or without reasonable
accommodation, for a period of greater than 12 weeks in any calendar year
during the term of this Agreement as a result of mental or physical illness or
injury.  


For the avoidance of doubt, if
you are terminated for Cause, voluntarily terminate your employment for any
reason, or your employment terminates by reason of death or Disability, you
will receive only your base salary earned through the date of termination and
will not be entitled to any further payment or benefits under this Agreement.  


3. Employee
Benefits.  You will be entitled to any and all benefits, with the
exception of paid vacation, afforded to Benchmark employees so long as employee
contributions are maintained via payroll deduction.  Reasonable expenses
related to conducting Company business will be reimbursed to you and processed
in accordance with Company’s Global Travel and Expense Report Policy. 


4. Company
equity awards.  Notwithstanding any provision to the contrary therein, your
transition out of your current role as Executive Vice President-Global
Operations and the corresponding termination of the Prior Agreement will not
constitute a termination of employment or the occurrence of an event
constituting “Good Reason” within the meaning of your outstanding Company
equity awards, and such awards will no longer include any terms regarding the
occurrence of an event constituting “Good Reason” following the Effective
Date.  As a result, your outstanding Company equity awards will remain
outstanding through the Effective Date and vesting 




 












 





thereof
will continue pursuant to their terms as long as you continue to provide services
to Company hereunder; however, any then-unvested awards will be forfeited in
the event you terminate your employment hereunder for any reason following the
Effective Date.  You will not be eligible to receive any additional long-term
incentive compensation awards following the Effective Date.


5. Release. 
As a condition to your transition to part-time employment and your receipt of
the compensation and benefits described herein, (a) you shall execute and
deliver to the Company a release of claims substantially in the form and
substance as set forth in Exhibit A  attached hereto (the “General
Release”) (as such form may be amended following the date hereof as
required by applicable law) and (b) the General Release shall become
effective and the revocation period provided therein shall have expired without
you having revoked such General Release within the 28-day period following the
Effective Date.  In the event you do not execute and deliver the General
Release to the Company, the General Release does not become effective and
irrevocable within such period or you revoke the General Release, (i) you
shall be deemed to have voluntarily terminated your employment for purposes of
this Agreement and any other compensation and benefit plans of the Company,
(ii) you shall not be entitled to the payments or benefits described
herein and (iii) you shall be required to reimburse the Company, in cash
within five business days after written demand is made by the Company
therefore, for an amount equal to the value of any compensation or benefits you
received following the Effective Date pursuant to this Agreement.


6. Entire
Agreement.  Except as set forth below, this Agreement constitutes the full
and complete agreement between you and Company regarding your service to Company
and the subject matter addressed herein.  Any prior agreement, arrangement or
understanding relating to the matters contemplated herein, written or oral, is
superseded by this Agreement; provided that, as noted above and for purposes of
clarity, nothing herein shall supersede your agreement to abide by the
Confidential Information, Proprietary Rights and Arbitration Agreement and your
covenants contained in Sections 8 and 9 of the Prior Agreement.


7. Tax Matters. 


(a) Withholding. 
All forms of compensation referred to in this Agreement are subject to
reduction to reflect applicable withholding and payroll taxes and other
deductions required by law.


(b) Tax
Advice.  You are encouraged to obtain your own tax advice regarding
your compensation from Company.  You agree that Company does not have a duty to
design its compensation policies in a manner that minimizes your tax
liabilities, and you will not make any claim against Company or its Board of
Directors related to tax liabilities arising from your compensation.


8. Interpretation,
Amendment and Enforcement.  This Agreement may not be amended or modified,
except by an express written agreement signed by both you and a duly authorized
officer of Company (other than you).  The terms of this Agreement and the
resolution of any disputes as to the meaning, effect, performance or validity
of this Agreement or arising out of, related to, or in any way connected with,
this Agreement, your employment with Company or any other relationship between
you and Company (“Disputes”) will be governed by Texas law, excluding
laws relating to conflicts or choice of law.  You and Company submit to
the exclusive personal jurisdiction of the federal and state courts located in
Texas in connection with any Dispute or any claim related to any Dispute.


9. 409A. 
This Agreement is intended to satisfy, or be exempt from, the requirements of
Section 409A, and should be interpreted accordingly.  Notwithstanding anything
to the contrary in this Agreement, if any amount payable pursuant to this
Agreement constitutes a deferral of compensation subject to Section 409A, and
if such amount is payable as a result of your “separation from service” at such
time as you are a “specified employee” (within the meaning of those terms as
defined in Section 409A), then no payment shall be made, except as permitted
under Section 409A, prior to the first business day after the date that is six
months after your separation from service.


10. Severability. 
If any provision of this Agreement is held to be illegal, invalid or
unenforceable, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof, and the remaining provisions hereof
will remain in full force and effect and will not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom.  




 












 





Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as part of this
Agreement a provision as similar in its terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid and enforceable.


11.  Waivers. 
No delay or omission by either party hereto in exercising any right, power or
privilege hereunder will impair such right, power or privilege, nor will any
single or partial exercise of any such right, power or privilege preclude any
further exercise of any other right, power or privilege.


12.  Counterparts. 
This Agreement may be executed in multiple counterparts (including by facsimile
or by PDF), each of which will be deemed an original, and all of which together
will constitute one and the same instrument.


Sincerely,


 


Benchmark
Electronics, Inc.


 


 


 


By: /s/ Scott R. Peterson    


Scott
R. Peterson


Vice
President


 


 


I have read, understand, and
agree to the terms set forth above:


 


 


/s/ Jon J. King                                       


­­­­­Jon J. King, May 15, 2017













 












 





Release


THIS RELEASE
(this “Release”) is executed by Jon J. King (“Executive”) and
delivered by him to Benchmark Electronics, Inc. (“Company”). 


WHEREAS,
Executive and Company entered into a letter agreement dated as of May 15, 2017
(the “Letter Agreement”); and


WHEREAS, it is
a condition to certain obligations under the Letter Agreement that Executive
execute and deliver this Release.


NOW,
THEREFORE, in consideration of the payments and benefits set forth in the
Letter Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Executive agrees as follows:


1.  Release
and Waiver.  Executive, on behalf of himself and his agents, heirs,
executors, administrators, successors and assigns, hereby RELEASE AND FOREVER
DISCHARGES Company, as well as any and all officers, directors, agents,
employees, partners, shareholders, attorneys, insurers, predecessors,
successors, and assigns of any of the entities comprising Company (collectively
the “Released Parties”) from any and all claims, damages, complaints,
grievances, causes of action, suits, liabilities, demands and expenses
(including attorneys’ fees) of any nature whatsoever, both at law and in equity
(except those expressly reserved herein), whether known or unknown, now
existing or which may result from the existing state of things, which Executive
now has or ever had against the Released Parties from the beginning of time to
the date of execution of this Release (set forth under Executive’s signature
hereto).  In particular, without limitation of the foregoing, the Released
Parties are specifically released from and held harmless from any and all
claims arising out of or related to Executive’s employment relationship with
Company, including, without limitation, Executive’s separation from full-time
employment and the termination of the Prior Agreement (as defined in the Letter
Agreement).  It is Executive’s intention that this Release constitute a full
and final general release of all such claims and that this release be as broad
as possible.   This Release does not apply to claims and rights that arise
after the date of the execution of this Release (set forth under the
Executive’s signature hereto).


2.  Scope
of Release.  Without limiting the foregoing in any way and to the fullest
extent allowed by law, this Release includes, but is not limited to, any rights
or claims Executive may have under: the Age Discrimination in Employment Act of
1967 (29 U.S.C. § 621, et seq.); Title VII of the Civil Rights Acts
of 1964; 42 U.S.C. § 1981; the Family and Medical Leave Act; the
Fair Labor Standards Act; the Equal Pay Act; the Rehabilitation Act of 1973 and
the Americans with Disabilities Act; the Employee Retirement Income Security
Act; the Worker Adjustment and Retraining Notification Act; the Older Workers
Benefit Protection Act; the National Labor Relations Act; the Unfair Business
Practices Act; and any other federal, state or local laws or regulations
concerning employment or prohibiting employment discrimination, harassment or
retaliation.  This Release also includes any claims against Company and/or the
Released Parties based on contract or tort, claims for defamation, libel,
invasion of privacy, intentional or negligent infliction of emotional distress,
wrongful termination, constructive discharge, breach of contract, breach of the
covenant of good faith and fair dealing, breach of fiduciary duty, and fraud. 
Executive agrees that he shall never file a lawsuit or other complaint
challenging the validity or enforceability of this Release.  Executive does not
by this Release relinquish (a) any right to any vested benefits under any
benefit plans or arrangements maintained by the Company or its subsidiaries or
affiliates, (b) any right to indemnification under any applicable directors and
officers liability insurance policy, indemnity agreement, applicable state and
federal law and Company’s articles of incorporation and bylaws and
(c) Executive’s right to receive the compensation and benefits set forth
in the Letter Agreement.


3.  No
Lawsuits, Complaints or Claims.  To the fullest extent allowed by law,
Executive waives his right to file any charge or complaint against Company
and/or any of the Released Parties arising out of his employment, separation
from full-time employment, the termination of the Prior Agreement or any facts
occurring prior to his execution of this Release before any federal, state or
local court or any federal, state or local administrative agency, except where
such waivers are prohibited by law.  By signing this Release, Executive
represents that he has not filed any such claims, causes of action or
complaints.  Notwithstanding the foregoing, Executive does not waive or 




Release Agreement                                                                      1                                                                                                 












 





release any claim that cannot be validly waived or
released by private agreement.  Specifically, nothing in this Release shall
prevent Executive from filing a charge or complaint with, or from participating
in, an investigation or proceeding conducted by the SEC, EEOC or any other
federal, state or local agency charged with the enforcement of any employment
laws.  However, Executive understands that by signing this Release, Executive
waives the right to recover any damages or to receive other relief in any claim
or suit brought by or through the EEOC or any other state or local deferral
agency on his behalf to the fullest extent permitted by law, but expressly
excluding any award or other relief available from the SEC.  This Release is not intended to, and shall not be interpreted in any
manner that limits or restricts Executive from, exercising any legally
protected whistleblower rights (including pursuant to Rule 21F under the U.S.
Securities and Exchange Act of 1934) or receiving an award for information
provided to any government agency under any legally protected whistleblower
rights.  Executive acknowledges and agree
that he has been paid all wages owed to him, including, but not limited to, all
salary, bonuses, commissions, and pay for earned but unused vacation, and that
he have not been denied any legally-protected leave.  Executive acknowledges
and agree that he is not entitled to any severance or other payment under the
Prior Agreement or any other plan, program, or agreement.  Executive
further acknowledges that he has no pending workers’ compensation claims and
that this Release is not related in any way to any claim for workers’
compensation benefits, and that he has no basis for such a claim.


4.  Adequate
Notice.  Executive acknowledges that he was given an adequate opportunity
to review and consider this Release.


5.  Consult
an Attorney.  Executive acknowledges that Company has advised him to
consult an attorney, at his expense, concerning his rights and the terms of
this Release, and that Executive had sufficient time to do so and did so or
voluntarily chose not to do so.  Executive’s waivers are knowing, conscious and
with full appreciation that at no time in the future may he pursue any of the
rights that he waived in this Release.


6.  Right
to Revoke.  During the seven-day period following the date the Executive
executes this Release (such period, the “Revocation Period”), Executive
may revoke this Release completely by delivering a letter, personally or by
USPS Certified Mail, to Company’s Corporate Secretary, containing Executive’s revocation
of this Release.  This Release shall become effective on the day following the
conclusion of the Revocation Period.  This Release shall have no legal effect
if revoked as provided herein.


IN WITNESS
WHEREOF, Executive has executed and delivered this Release on the date set
forth below.


 


                                                                                 


Jon J. King


Date:                                                                       


 








Release Agreement                                                                      2