IN WRITING AND WILL BE DEEMED TO HAVE BEEN DELIVERED:
(I)
UPON RECEIPT, WHEN DELIVERED PERSONALLY; (II) UPON RECEIPT, WHEN SENT BY EMAIL,
WHEN SUCH EMAIL IS SENT TO THE EMAIL ADDRESS SET FORTH BELOW AND THE APPROPRIATE
CONFIRMATION IS RECEIVED; OR (III) ONE (1) BUSINESS DAY AFTER DEPOSIT WITH A
NATIONALLY RECOGNIZED OVERNIGHT DELIVERY SERVICE, IN EACH CASE PROPERLY
ADDRESSED TO THE PARTY TO RECEIVE THE SAME.
THE ADDRESSES FOR SUCH
COMMUNICATIONS SHALL BE:
If to the Company:
Benchmark Electronics, Inc.
3000 Technology Drive
Angleton, Texas 77515
Attention:
Scott R. Peterson
Email:
With copies (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
Attention:
Andrew Thompson
Email:
If to the Engaged Group:
Engaged Capital, LLC
610 Newport Center Drive, Suite 250
Newport Beach, California 92660
Attention:
Glenn Welling
Email:
With copies (which shall not constitute notice) to:
Olshan Frome Wolosky LLP
65 East 55th Street
New York, NY 10022
Attention:
Steve Wolosky
Aneliya Crawford
Email:
-6-
11.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REFERENCE TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION.
EACH OF THE PARTIES HERETO IRREVOCABLY AGREES
THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS ARISING HEREUNDER, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT OF THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS ARISING
HEREUNDER BROUGHT BY THE OTHER PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS,
SHALL BE BROUGHT AND DETERMINED EXCLUSIVELY IN STATE OR FEDERAL COURTS LOCATED
IN THE STATE OF TEXAS AND ANY APPELLATE COURT THEREFROM.
EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY SUBMITS WITH REGARD TO ANY SUCH ACTION OR PROCEEDING
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, TO THE
PERSONAL JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT IT WILL NOT BRING
ANY ACTION RELATING TO THIS AGREEMENT IN ANY COURT OTHER THAN THE AFORESAID
COURTS.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO
ASSERT IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, (I) ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS
FOR ANY REASON; (II) ANY CLAIM THAT IT OR ITS PROPERTY IS EXEMPT OR IMMUNE FROM
THE JURISDICTION OF ANY SUCH COURT OR FROM ANY LEGAL PROCESS COMMENCED IN SUCH
COURTS (WHETHER THROUGH SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE);
AND (III) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY
CLAIM THAT (A) THE SUIT, ACTION OR PROCEEDING IN SUCH COURT IS BROUGHT IN AN
INCONVENIENT FORUM, (B) THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER
OR (C) THIS AGREEMENT, OR THE SUBJECT MATTER HEREOF, MAY NOT BE ENFORCED IN OR
BY SUCH COURTS.
12.
AFFILIATES AND ASSOCIATES; CONSTRUCTION.
EACH