I
s


 


September 15,
2016


Gayla J. Delly


____________


____________


Re:       Separation Agreement


Dear Gayla:


This letter sets forth the terms of a Separation Agreement (this “Agreement”)
between you and Benchmark Electronics, Inc. (“Benchmark”).  Any
matters referred to in the amended and restated employment agreement by and
between you and Benchmark, dated as of January 1, 2012 (the “Employment
Agreement”), that are not expressly addressed in this Agreement shall
continue to be governed by the terms of the Employment Agreement, which remains
in full force and effect except as expressly modified hereby.  Any capitalized
terms that are not otherwise defined herein shall have the meanings assigned
thereto in the Employment Agreement.


1.                 
Separation.   By mutual agreement, your employment with
Benchmark and its subsidiaries and affiliates is hereby terminated and you
hereby resign as a member of the board of directors of Benchmark, in each case,
effective as of September 16, 2016 (the “Termination Date”).
 Effective as of the Termination Date, you shall cease to have any positions,
titles, authorities or responsibilities (whether as a director, officer or
otherwise) with Benchmark or any of its subsidiaries or affiliates.  You hereby
agree to execute on or following the date hereof any and all supplemental
documentation provided to you by Benchmark in furtherance of the foregoing. 
Your termination of employment, effective as of the Termination Date, shall be
deemed a termination of employment without Cause for all purposes of the
Employment Agreement.  Except for the compensation and benefits described in
Sections 2 and 3 below, you shall cease to actively participate in any
plans, programs, policies or arrangements of Benchmark or any of its
subsidiaries or affiliates.  None of the payments or benefits described in
Section 3 shall be contributed to any employee benefit plan, nor will any
contribution (matching or otherwise) be made by Benchmark or any of its
subsidiaries or affiliates to any employee benefit plan on account of any of
the payments or benefits described in Section 3.


2.                 
Accrued Obligations.  Following the Termination Date,
Benchmark shall pay you an amount in cash equal to (a) your earned, due and
unpaid wages and salary and earned but unused vacation time through the
Termination Date, payable within 10 days following the Termination Date, and
(b) all reimbursable business expenses, payable in accordance with
Benchmark’s expense reimbursement policy.


3.                 
Severance Pay.  Subject to Section 5 and your compliance with
your obligations under Sections 8 (Confidential Information), 9
(Non-Competition, Non-Solicitation, Non-Disparagement) and 10 (Confidentiality
Agreement) of the Employment Agreement, as 




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provided in
Section 6 below, Benchmark shall pay or provide to you the following
amounts and benefits, in lieu of any other severance or separation payments or
benefits under the Employment Agreement:


(a)               
$3,805,500, representing two times the sum of your annual base
salary and target annual bonus as of the date hereof, payable in a lump-sum on
the 60th day following the Termination Date;


(b)              
$722,184.25, representing your target annual bonus as of the date
hereof multiplied by a fraction, the numerator of which is the number of days
elapsed in calendar year 2016 prior to and including the Termination Date and
the denominator of which is 365, payable on the 60th day following the
Termination Date; and


(c)               
the portion of the premium costs for your (or your dependents’)
group health insurance coverage, as in effect as of immediately prior to the
Termination Date, for a period of 18 consecutive months immediately following
the Termination Date, so long as you are eligible for and properly elect to
continue such coverage; provided  that such coverage shall cease if and
to the extent you become eligible for similar benefits by reason of new
employment or you otherwise are no longer eligible for continuation coverage
pursuant to applicable law and plans. 


4.                 
Equity-Based Incentive Compensation.  For the avoidance of
doubt, any unvested long-term awards granted to you under Benchmark’s omnibus
incentive compensation plan that are outstanding as of the date hereof shall be
forfeited and canceled for no consideration as of the date hereof.


5.                 
Release of Claims; Cooperation.  In consideration of the
foregoing, you agree that you shall:


(a)               
Execute and deliver to Benchmark a release of claims in the form
attached hereto as Exhibit A (the “Release”), which Release shall
be executed no earlier than the Termination Date and no later than the 45th day
after the Termination Date.  In the event you do not execute and deliver to
Benchmark the Release within such time period, you sign and then revoke the
Release as described therein or any proceeding, action, claim or demand is
brought in breach of the Release after its execution by you, then you shall be
deemed to have voluntarily terminated your employment for purposes of the
Employment Agreement, you shall not be entitled to any of the amounts and
benefits provided in Section 3 and you shall be required to reimburse Benchmark,
in cash within five business days after written demand is made by Benchmark
therefore, for an amount equal to the value of any payments and benefits
received by you pursuant to Section 3; and


(b)              
Cooperate reasonably with Benchmark and its subsidiaries and
affiliates in connection with any ongoing or future dispute, lawsuit,
arbitration or any internal or external investigation of any type involving
Benchmark or its subsidiaries or affiliates and about which Benchmark
reasonably believes you may possess relevant information.  Benchmark will
reimburse your reasonable expenses in connection with participating in such
matters at Benchmark’s request.


6.                 
Continuing Obligations.  You shall promptly return to
Benchmark within two business days following the date hereof any Benchmark
property and any information you have about the practices, procedures,
technology, customer information, or product marketing of Benchmark and its subsidiaries
and affiliates.   Notwithstanding anything to the contrary in this 




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Agreement or the Employment Agreement, Sections 8
(Confidential Information), 9 (Non-Competition, Non-Solicitation,
Non-Disparagement), 10 (Confidentiality Agreement) and 11 (Arbitration) of
the Employment Agreement shall continue to apply to you, and the last sentence
of Section 9 shall continue to apply to Benchmark, following the date hereof in
accordance with their terms; provided  that any dispute arising under or
in any way related to this Agreement and any legal action to enforce rights
under, or to recover damages for breach of, this Agreement shall be treated as
a dispute or claim with respect to the Employment Agreement for purposes of
Section 11 of the Employment Agreement.  Notwithstanding anything to the
contrary in this Agreement, the Employment Agreement or the Confidentiality
Agreement (as defined in the Employment Agreement), this Agreement is not intended to, and shall not be interpreted in any
manner that limits or restricts you 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.   


7.                 
General. 


(a)               
Notices.   All notices and other communications hereunder
will be in writing, and will be deemed to have been duly given if delivered
personally, or three business days after being mailed by certified mail, return
receipt requested, or upon receipt if sent by written telecommunications, to
the relevant address set forth below, or to such other address as the recipient
of such notice or communication will have specified to the other party hereto
in accordance with this section:


If to
Benchmark, to:


Benchmark Electronics, Inc.


3000 Technology Drive


Angleton, Texas 77515


Attn: Corporate Secretary


 


If to you, to:


Gayla J. Delly


____________


____________


(b)              
Withholding.   All payments required to be made by
Benchmark under this Agreement will be subject to the withholding of such
amounts, if any, relating to federal, state and local taxes as may be required
by law.  


(c)               
Equitable Remedies.  Each of the parties hereto
acknowledges and agrees that upon any breach by you of your obligations as
described in Section 6, Benchmark will have no adequate remedy at law, and
accordingly will be entitled to specific performance and other appropriate
injunctive and equitable relief.  You shall not, and you hereby waive and
release any rights or claims to, contest or challenge the reasonableness,
validity or enforceability of the obligations described in Section 6.


(d)              
Clawback.   You acknowledge that the
amounts paid to you by Benchmark, including amounts payable pursuant to this
Agreement, may be subject to recoupment or 




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clawback
pursuant to the applicable policy adopted by Benchmark prior to the date hereof
or applicable law, and you agree to repay such amounts to the extent required
thereunder.


(e)               
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.


(f)               
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.


(g)              
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.


(h)              
Captions.   The captions in this Agreement are for
convenience of reference only and will not limit or otherwise affect any of the
terms or provisions hereof.


(i)                
References to Agreement.  Use of the words “herein”,
“hereof”, and “hereto” and the like in this Agreement refer to this Agreement
only as a whole and not to any particular Section, subsection or provision of
this Agreement, unless otherwise noted. Any reference to a “Section” or
“subsection” shall refer to a Section or subsection of this Agreement, unless
otherwise noted.


(j)                
Successors and Binding Agreement.  Benchmark shall require
any successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the business or
assets of Benchmark to expressly assume and agree to perform this Agreement in
the same manner and to the same extent Benchmark would be required to perform
if no such succession had taken place.  This Agreement shall be binding upon
and inure to the benefit of Benchmark and any successor to Benchmark, including
without limitation any persons acquiring directly or indirectly all or
substantially all of the business or assets of Benchmark whether by purchase,
merger, consolidation, reorganization, or otherwise (and such successor shall
thereafter be deemed “Benchmark” for the purposes of this Agreement).


(k)              
Entire Agreement; Amendment and Waivers.  This Agreement,
the Employment Agreement and the Confidentiality Agreement (as defined in the
Employment Agreement) contain the entire understanding of you and Benchmark
relating to the subject matter hereof.  This Agreement may not be amended or
modified except by a written instrument hereafter signed by each of the parties
hereto, and may not be waived except by a written instrument hereafter signed
by the party granting such waiver.  


(l)                
Governing Law.  This Agreement and the performance hereof
shall be governed and construed in all respects, including but not limited to
as to validity, interpretation 




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and effect, by the laws
of the State of Texas, without regard to the principles or rules of conflict
thereof.


 


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If the foregoing
accurately reflects our agreement, please sign and return to us the enclosed
duplicate copy of this letter


Benchmark
Electronics, Inc.


/s/ SCOTT R. PETERSON     


Scott R. Peterson


Vice President
& General Counsel


Date:  September 15, 2016


 


Accepted and Agreed to:


/s/ GAYLA
J. DELLY                       


Gayla J. Delly


Date:  September 15, 2016













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Release


THIS RELEASE (this “Release”) is executed by Gayla J.
Delly (the “Executive”) and delivered by her to Benchmark
Electronics, Inc. (“Benchmark”). 


WHEREAS, the Executive and Benchmark entered into the amended and
restated employment agreement dated January 1, 2012 (the “Employment
Agreement”) and the separation agreement dated September 16, 2016 (the
“Separation Agreement”); and


WHEREAS, the Executive’s employment has been terminated by Benchmark
without Cause (as such term is defined in the Employment Agreement) and as such
the Executive is due certain payments and benefits as described in the
Separation Agreement subject to the Executive’s execution of this Release.


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


1.                 
Release and Waiver.  The Executive, on behalf of herself
and her agents, heirs, executors, administrators, successors and assigns,
hereby RELEASES AND FOREVER DISCHARGES Benchmark, including without limitation
Benchmark’s parents, subsidiaries, affiliates, and other related companies, as
well as any and all of their officers, directors, agents, employees, partners,
shareholders, attorneys, insurers, predecessors, successors, and assigns
(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 Effective Date (as defined below).  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 your employment relationship with Benchmark, including, without
limitation, your separation from employment.  It is the 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
release or waive any rights or claims that may arise after the Effective Date.
 


2.                 
Scope of Release.  Without limiting the foregoing in any
way, the Executive’s release and waiver includes, but is not limited to, any
rights or claims the Executive may have under: the Age Discrimination in
Employment Act of 1967 (29 U.S.C. § 621, et seq.) (“ADEA”);
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; ERISA;
WARN; the Older Workers Benefit Protection Act (“OWBPA”); the
National Labor Relations Act; claims under the California Labor, Civil, and
Government Codes, including the California Fair Employment and Housing, the
Genetic Information Nondiscrimination Act (GINA); 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 and waiver also includes any claims against
Benchmark and/or the Released Parties based on contract or tort, claims for
defamation, 




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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.  The Executive agrees that she
shall never file a lawsuit or other complaint challenging the validity or
enforceability of this Release.  The Executive waives and releases any claim
that she has or may have to reemployment after the Termination Date (as defined
in the Separation Agreement).


3.                 
Rights Not Relinquished.  The Executive does not by this
Release relinquish (a) any right to any vested benefits under any benefit
plans or arrangements maintained by Benchmark 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 Benchmark’s articles of incorporation and
bylaws, (c) any rights under  (including to enforce) the Separation Agreement
and (d) any rights in the Executive’s capacity as a securityholder of
Benchmark.


4.                 
Risk of Mistake of Fact.  The Executive understands that
any of the facts or circumstances that the Executive may currently rely on may
later be found, suspected or claimed to be different from the facts and
circumstances as the Executive now believe them to be (each, a “Mistake
of Fact”).  The Executive assumes the risk of any Mistake of Fact and
agrees that this Release shall remain effective despite any such Mistake of
Fact.  Specifically, it is a condition of this Release, and it is your
intention by signing this Release, that the release of claims by you contained
in this Release shall be effective as a bar to each and every claim, whether
now known or unknown.  


5.                 
No Lawsuits, Complaints, or Claims.  The Executive waives
her right to file any charge or complaint against Benchmark and/or any of the
Released Parties arising out of her employment or separation from employment or
any facts occurring prior to the Executive signing 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
the Executive represents that she has not filed any such claims, causes of
action or complaints. Notwithstanding the foregoing, the Executive does not
waive or release any claim which cannot be validly waived or released by
private agreement.  Specifically, nothing in this Release shall prevent the
Executive from filing a charge or complaint with, or from participating in, an
investigation or proceeding conducted by the SEC, EEOC, DFEH or any other
federal, state or local agency charged with the enforcement of any employment
laws.  However, the Executive understands that by signing this Release, the
Executive waives the right to recover any damages or to receive other relief in
any claim or suit brought by or through the EEOC, the DFEH or any other state
or local deferral agency on Employee’s 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 the 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.  The Executive acknowledges that she
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 she
has no basis for such a claim.  






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6.                 
Adequate Notice.  The Executive acknowledges that she was
given an adequate opportunity to review and consider this Release.


7.                 
Consult an Attorney.  The Executive acknowledges that
Benchmark has advised the Executive to consult an attorney, at the Executive’s
expense, concerning the Executive’s rights and the terms of this Release, and
that the Executive had sufficient time to do so and did so or voluntarily chose
not to do so.  The Executive’s waivers are knowing, conscious and with full
appreciation that at no time in the future may the Executive pursue any of the
rights that the Executive waived in this Release.


8.                 
Right to Revoke.  During the seven-day period following
the date the Executive executes this Release (such period, the “Revocation
Period”), the Executive may revoke this Release completely by
delivering a letter, personally or by USPS Certified Mail, to Benchmark’s
Corporate Secretary, containing the Executive’s revocation of this Release.  This
Release shall become effective on the day following the conclusion of the Revocation
Period (such day, the “Effective Date”).  This Release shall have
no legal effect if revoked as provided herein.


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


 


 


                                                             


Gayla J. Delly


Date:                                                    


 


 








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                                                      Employee Initials _______