Exhibit 10.1
COOPERATION AGREEMENT
This Cooperation Agreement (this "Agreement") is made and entered into as of
December 19, 2016, by and among Benchmark Electronics, Inc. (the "Company"),
Engaged Capital, LLC ("Engaged") and each of the other related Persons (as
defined below) set forth on the signature pages hereto (collectively with
Engaged, the "Engaged Group").
The Engaged Group and each of their Affiliates
(as defined below) and Associates (as defined below) are collectively referred
to as the "Investors".
The Company and the Investors are referred to herein as
the "Parties".
RECITALS
WHEREAS, the Engaged Group Beneficially Owns (as defined below) shares of common
stock, par value $0.10 per share, of the Company (the "Common Stock") totaling,
in the aggregate, 2,428,221 shares, or approximately 4.97%, of the Common Stock
issued and outstanding on the date hereof; and
WHEREAS, the Company and the Investors have determined to come to an agreement
with respect to certain matters as provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound hereby, agree as follows:
1.
BOARD MATTERS.
(A)
WITHIN FIFTEEN (15) DAYS FOLLOWING THE OCCURRENCE OF A
TRIGGERING EVENT (AS DEFINED BELOW), ENGAGED SHALL HAVE THE RIGHT TO REQUEST
THAT THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD") ELECT AN ADDITIONAL
DIRECTOR TO THE BOARD.
UPON RECEIPT OF SUCH REQUEST, THE BOARD SHALL WORK IN
GOOD FAITH AND ACT IN A MANNER CONSISTENT WITH ITS FIDUCIARY DUTIES TO IDENTIFY
A PROPOSED DIRECTOR NOMINEE THAT IS MUTUALLY ACCEPTABLE TO THE BOARD AND ENGAGED
(THE "PROPOSED NOMINEE").
ANY PERSON SELECTED AS THE PROPOSED NOMINEE SHALL BE
INDEPENDENT OF EACH OF THE COMPANY AND THE ENGAGED GROUP AND ITS AFFILIATES AND
ASSOCIATES, INCLUDING THE BOARD BEING ABLE TO DETERMINE THAT THE PROPOSED
NOMINEE QUALIFIES AS "INDEPENDENT" UNDER THE NEW YORK STOCK EXCHANGE LISTING
STANDARDS, AND SHALL SATISFY EACH OF THE OTHER CRITERIA AND REQUIREMENTS SET
FORTH IN SECTION 1(C) HEREOF.
(B)
THE COMPANY AGREES THAT IF THE PROPOSED NOMINEE (INCLUDING ANY SUBSTITUTE
PERSON RECOMMENDED PURSUANT TO THIS SECTION 1(B)) IS (I) UNABLE TO SERVE AS A
DIRECTOR, RESIGNS AS A DIRECTOR OR IS REMOVED AS A DIRECTOR WITHOUT CAUSE PRIOR
TO THE END OF THE RESTRICTED PERIOD (AS DEFINED BELOW) AND (II) AT THAT TIME THE
ENGAGED GROUP COLLECTIVELY BENEFICIALLY OWNS AT LEAST THE MINIMUM INTEREST (AS
DEFINED BELOW), THEN THE COMPANY AND ENGAGED SHALL FOLLOW THE PROCEDURES SET
FORTH IN SECTION 1(A) HEREOF TO SELECT A REPLACEMENT PROPOSED NOMINEE.
(C)
EACH OF THE PARTIES ACKNOWLEDGES THAT THE PROPOSED NOMINEE (AND EACH
SUBSTITUTE PERSON RECOMMENDED PURSUANT TO SECTION 1(B) HEREOF) SHALL BE REQUIRED
TO:
(I) COMPLY WITH THE COMPANY'S CODE OF CONDUCT AND CORPORATE GOVERNANCE
GUIDELINES, INCLUDING ALL POLICIES, PROCEDURES, PROCESSES, CODES, RULES,
STANDARDS AND GUIDELINES APPLICABLE TO MEMBERS OF THE BOARD, INCLUDING ALL
APPLICABLE CONFLICT OF INTEREST, CONFIDENTIALITY, STOCK OWNERSHIP, INSIDER
TRADING AND