Unassociated Document


    EXHIBIT
4.1

     

    AMENDMENT
NO. 1 TO RIGHTS AGREEMENT

     

    AMENDMENT
NO. 1 (this “Amendment”) dated as
of December 10, 2008, to the Rights Agreement dated as of December 11, 1998 (the
“Rights
Agreement”), between BENCHMARK ELECTRONICS, INC., a Texas corporation
(the “Company”), and
COMPUTERSHARE TRUST COMPANY, N.A., a national banking association, as rights
agent (as successor rights agent to Harris Trust and Savings Bank) (the “Rights
Agent”).

     

    WHEREAS,
the Board of Directors of the Company has determined to amend the Rights
Agreement in order to extend the Final Expiration Date (as defined in the Rights
Agreement) and to make certain other changes, all as set forth below;
and

     

    WHEREAS,
the Company has directed the Rights Agent to enter into this Amendment pursuant
to Section 27 of the Rights Agreement;

     

    NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:

     

    Section
1.  Amendments to Section
1.

     

    (a)  The
definition of “Acquiring Person” set forth in Section 1 of the Rights
Agreement is hereby amended by inserting the following parenthetical immediately
after the words “a sufficient number of shares of Common Stock”:

     

    “(or, in
the case solely of Derivative Common Shares, such Person shall have failed
(x) to terminate the subject derivative transaction or transactions or
otherwise dispose of the subject derivative security or securities and
(y) to establish to the satisfaction of the Board of Directors of the
Company that such Derivative Common Shares are no longer beneficially owned with
any intention of obtaining, changing or influencing the control of the
Company)”

     

    (b)  The
definition of “Beneficial Owner” and “beneficially own” set forth in
Section 1 of the Rights Agreement is hereby amended by (i) deleting
the word “or” immediately after the semicolon at the end of clause (ii)
thereof and (ii) inserting the following words immediately after the
semicolon at the end of clause (iii) thereof:

     

    “or

     

    “(iv)
that are the subject of, or the reference securities for, or that underlie, any
Derivative Interest of such Person or any of such Person’s Affiliates or
Associates, with the number of shares of Common Stock deemed beneficially owned
being the notional or other number of shares of Common Stock specified in the
documentation evidencing the Derivative Interest as being subject to be acquired
upon the exercise or settlement of the Derivative Interest or as the basis upon
which the value or settlement amount of such Derivative Interest is to be
calculated in whole or in part or, if no such number of shares of Common Stock
is specified in such documentation, as determined by the Board of Directors of
the Company in its sole discretion to be the number of shares of Common Stock to
which the Derivative Interest relates;”

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (c)  The
definition of “Business Day” set forth in Section 1 of the Rights Agreement is
hereby amended by deleting the words “the State of New York or the State of
Illinois” and substituting therefor the words “the Commonwealth of
Massachusetts”.

     

    (d)  Section 1
of the Rights Agreement is hereby amended by inserting the following definitions
in appropriate alphabetical order:

     

    “‘Derivative
Common Shares’, when used with reference to an Acquiring Person, shall mean
shares of Common Stock that are deemed beneficially owned by an Acquiring Person
solely as a result of the application of clause (iv) of the definition of
“Beneficial Owner” and “beneficial ownership” set forth herein.”

     

    and

     

    “‘Derivative
Interest’ shall mean (i) any derivative securities (as defined under Rule
16a-1 under the Exchange Act) and any other derivatives or similar agreements or
arrangements with an exercise or conversion privilege or a periodic or
settlement payment or payments or mechanism at a price or in an amount or
amounts related to any security of the Company or with a value derived or
calculated in whole or in part from the value of any security of the Company and
(ii) any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of any security of the
Company, in each case, regardless of whether (x) such interest conveys any
voting rights in such security, (y) such interest is required to be, or is
capable of being, settled through delivery of such security or (z) any
other transactions hedge the economic effect of such interest.”

     

    (e)  The
definition of “Final Expiration Date” set forth in Section 1 of the Rights
Agreement is hereby amended by deleting the date “December 11, 2008” and
substituting therefor the date “December 11, 2018”.

     

    (f)  The
definition of “Purchase Price” set forth in Section 1 of the Rights Agreement is
hereby amended by deleting the reference to “Section 4(a)” and substituting
therefor “Section 4”.

     

    Section
2.  Amendments to Section
2.  Section 2 of the Rights Agreement is hereby amended as
follows:

     

    (a)  The
words “and the holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the Common Stock)”
are deleted in their entirety.

     

    
      
         

      

      
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    (b)  The
last sentence thereof is deleted and replaced with the following
sentences:

     

    “The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable, upon 10 days’ notice in writing to the Rights
Agent.  The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such co-Rights
Agent.”

     

    Section
3.  Amendment to Section
18.  Section 18(a) of the Rights Agreement is hereby amended by
inserting the word “gross” immediately before the word “negligence” and after
the word “without” in the second sentence thereof.

     

    Section
4.  Amendment to Section
20.  Section 20(c) of the Rights Agreement is hereby amended by
inserting the word “gross” immediately before the word “negligence” and after
the word “own”.

     

    Section
5.  Amendments to Section
21.  Section 21 of the Rights Agreement is hereby amended by
inserting the following sentence immediately after the second sentence
thereof:

     

    “In the
event the transfer agency relationship in effect between the Company and the
Rights Agent terminates, the Rights Agent will be deemed to have resigned
automatically and be discharged from its duties under this Agreement as of the
effective date of such termination, and the Company shall be responsible for
sending any required notice.”

     

    Section
6.  Amendments to Section
26.

     

    (a)  The
notice information for the Company set forth in Section 26 of the Rights
Agreement is hereby amended and restated in its entirety to read as
follows:

     

    Benchmark
Electronics, Inc.

    3000
Technology Drive

    Angleton,
Texas  77515

    Attention:  Corporate
Secretary

    Telephone
No.:  (979) 849-6550

    Facsimile
No.:  (979) 848-5269

     

    (b)  The
notice information for the Rights Agent set forth in Section 26 of the Rights
Agreement is hereby amended and restated in its entirety to read as
follows:

     

    Computershare
Trust Company, N.A.

    350
Indiana Street, Suite 800

    Golden,
Colorado  80401

    Attention:  Client
Services

     

    
      
         

      

      
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    Section
7.  Amendments to Section
32.  Section 32 of the Rights Agreement is hereby amended by
inserting the following sentence immediately after the period at the end
thereof:

     

    “Notwithstanding
the foregoing, the Company and the Rights Agent may mutually agree to a
jurisdiction other than Texas for any suit, action or other proceeding directly
between and solely involving the Company and the Rights Agent arising out of
this Agreement.”

     

    Section
8.  Amendment to Rights
Agreement. The Rights Agreement is hereby amended by inserting the
following new Section 35:

     

    “Section
35.  FORCE MAJEURE.  Notwithstanding anything to the
contrary contained herein, the Rights Agent shall not be liable for any delays
or failures in performance resulting from acts beyond its reasonable control,
including, without limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer facilities,
loss of data due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war or civil
unrest.”

     

    Section
9.  Amendments to Exhibit
A.  Exhibit A to the Rights Agreement is hereby amended by
inserting at the end thereof the Form of Statement of Resolution Increasing
Number of Shares set forth as Annex I
hereto.

     

    Section
10.  Amendments to Exhibit
B.  Exhibit B to the Rights Agreement is hereby amended by (a)
deleting each reference to the date “December 11, 2008” set forth therein and
substituting therefor the date “December 11, 2018” and (b) deleting each
reference to “19__” set forth therein and substituting therefor
“20__”.

     

    Section
11.  Amendments to Exhibit
C.  Exhibit C to the Rights Agreement is hereby amended by (a)
inserting immediately prior to the parenthetical “(the ‘Rights Agreement’)” in
the first paragraph thereof the words “as it may from time to time be
supplemented or amended” and (b) deleting the date “December 11, 2008” set forth
in the third paragraph thereof and substituting therefor the date “December 11,
2018”.

     

    Section
12.  Certification.  The
officer of the Company executing this Amendment on behalf of the Company hereby
certifies on behalf of the Company that this Amendment complies with the terms
of Section 27 of the Rights Agreement.

     

    Section
13.  Governing
Law.  This Amendment shall be deemed to be a contract made
under the laws of the State of Texas and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to contracts
made and to be performed entirely within such State.

     

    Section
14.  Execution in
Counterparts.  This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.

     

    Section
15.  Rights Agreement as
Amended.  Upon the effectiveness of this Amendment, the term
“Agreement” as used in the Rights Agreement shall refer to the Rights Agreement
as amended hereby.

     

    Section
16.  Ratification of Rights
Agreement.  Except as otherwise expressly set forth herein, the
Rights Agreement is hereby ratified and confirmed and remains in full force and
effect as originally entered into as of December 11, 1998.

     

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    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.

     

    


     

    
      
        	
                BENCHMARK
      ELECTRONICS, INC.

              
	
                by

              
	 
      	
                /s/
      CARY T. FU

              
	 
      	
                Name:  Cary
      T. Fu

                Title:  Chief
      Executive Officer

              


      

    

    


    
      
        	
                Attest:

              
	
                by

              
	 
      	
                /s/
      KENNETH S. BARROW

              
	 
      	
                Name:  Kenneth
      S. Barrow

                Title:  Secretary

              


      

    

    


    
      
        	
                COMPUTERSHARE
      TRUST COMPANY, N.A., as Rights
      Agent

              
	
                by

              
	 
      	
                /s/
      KELLY GWINN

              
	 
      	
                Name:  Kelly
      Gwinn

                Title:  Vice
      President

              


      

    

    


    
      
        	
                Attest:

              
	
                by

              
	 
      	
                /s/
      IAN YEWER

              
	 
      	
                Name:  Ian
      Yewer

                Title:  Branch
      President

              


      

    

     

    
      
         

      

      
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    ANNEX
I

     

    [Form of
Statement of Resolution Increasing Number of Shares]

    


    BENCHMARK
ELECTRONICS, INC.

    


    STATEMENT
OF RESOLUTION

    INCREASING
NUMBER OF SHARES

    


    Pursuant
to Article 2.13 of the

    Texas
Business Corporation Act

    


    Series A
Cumulative Junior Participating Preferred Stock,

    par value
$0.10 per share

    


    Benchmark Electronics, Inc., a Texas
corporation (the “Corporation”), pursuant to the provisions of Article 2.13 of
the Texas Business Corporation Act and authority expressly vested in the Board
of Directors of the Corporation by its Restated Articles of Incorporation, as
amended, hereby submits the following statement for the purpose of amending the
Statement of Resolution, filed with the Secretary of State of the State of Texas
on December 14, 1998, establishing and designating the Series A Cumulative
Junior Participating Preferred Stock, par value $0.10 per share, of the
Corporation (the “Series A Preferred Stock”), to increase the number of
authorized shares of the Series A Preferred Stock.

    


    ARTICLE
I

    


    The name of the Corporation is
Benchmark Electronics, Inc.

    


    ARTICLE
II

    


    The following recitals and resolutions
were duly adopted by the Board of Directors of the Corporation on December 10,
2008:

    


    WHEREAS, the Board of
Directors of the Corporation deems it desirable and in the best interests of the
Corporation and its shareholders to amend the Statement of Resolution, filed
with the Secretary of State of the State of Texas on December 14, 1998 (the
“Original Statement of Resolution”), establishing and designating the Series A
Cumulative Junior Participating Preferred Stock, par value $0.10 per share, of
the Corporation (the “Series A Preferred Stock”), to increase the authorized
number of shares of Series A Preferred Stock from 30,000 to
145,000;

     

    
      
         

      

      
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    NOW, THEREFORE, BE IT
RESOLVED, that the Board of Directors of the Corporation does hereby fix
and determine the new number of authorized shares of Series A Preferred Stock to
be 145,000 and does hereby amend Section 1 of the Original Statement of
Resolution to read in its entirety as follows:

    


    “1.
ESTABLISHMENT AND DESIGNATION OF SERIES.  There is hereby established,
out of the authorized but unissued shares of Preferred Stock of the Corporation,
a series of Preferred Stock to be designated ‘Series A Cumulative Junior
Participating Preferred Stock’ (the ‘Series A Preferred Stock’), to consist of
an aggregate of 145,000 shares and to have the preferences, limitations and
relative rights set forth herein.”

    


    ; and
further

    


    RESOLVED, that the officers of
the Corporation be, and each of them hereby is, authorized and directed to make,
execute and file with the Secretary of State of the State of Texas, in
accordance with the provisions of Article 2.13 of the Texas Business Corporation
Act, a copy of these resolutions, and to take, or cause to be taken, such
further action and to prepare or cause to be prepared and to execute and
deliver, or to cause to be executed and delivered, in the name and on behalf of
the Corporation all such further instruments and documents as any officer may
deem to be necessary or advisable to effect the purpose and intent of the these
resolutions and to be in the best interests of the Corporation (as conclusively
evidenced by the taking of such action or the execution and delivery of such
instruments, as the case may be, by or under the direction of any authorized
officer).

    


    ARTICLE
III

    


    The foregoing recitals and resolutions
have been duly adopted by all necessary corporate action on the part of the
Corporation.

    


    ARTICLE
IV

    


    Except as provided herein, the Original
Statement of Resolution shall otherwise remain in full force and effect, as
amended hereby.

    


    IN WITNESS WHEREOF, the Corporation has
caused its corporate seal to be affixed and this certificate to be signed by its
Chief Executive Officer, and attested to by its Secretary, the 10th
day of December, 2008.

     

    
      
        
          
            	 	BENCHMARK
      ELECTRONICS, INC.	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	 	 
	 	 	
                    Name:  Cary
      T. Fu

                    Title:  Chief
      Executive Officer

                  	 


          

        

      

    

     

    
      
        
          
            
              
                	
                         

                      	
                        By:
      

                      	 	 
	 	 	
                        Name:  Kenneth
      S. Barrow

                        Title:  Secretary

                      	 


              

            

          

        

      

    

     

    
      
         

      

      
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