Unassociated Document
As
filed with the Securities and Exchange Commission on December 16,
2008
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
Benchmark
Electronics, Inc.
(Exact
name of registrant as specified in its charter)
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Texas
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74-2211011
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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3000
Technology Drive
Angleton,
Texas
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77515
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(Address
of Principal Executive Offices)
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(Zip
Code)
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BENCHMARK
ELECTRONICS, INC.
DEFERRED
COMPENSATION PLAN
(Full
title of plan)
Cary
T. Fu
Chief
Executive Officer
3000
Technology Drive
Angleton,
Texas 77515
(Name and
address of agent for service)
(979)
849-6550
(Telephone
number, including area code, of agent for service)
Copies
to:
___________
William
J. Whelan, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, New York 10019
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer,” and “smaller
reporting company” in Rule 12b–2 of the Exchange Act.
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Large
accelerated filer þ
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Accelerated
filer o
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Non-accelerated
filer o (Do not
check if a smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be
registered
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Proposed
maximum
offering
price
per share
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee
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Deferred
Compensation Obligations(1)
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$20,000,000
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100%
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$20,000,000
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$786
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(1)
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The
Deferred Compensation Obligations are unsecured obligations of the
Registrant to pay deferred compensation in the future in accordance with
the Benchmark Electronics, Inc. Deferred Compensation
Plan.
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PART
I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM
1. PLAN
INFORMATION.
All
information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”), and the Note to
Part I of Form S-8.
ITEM
2. REGISTRANT
INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
All
information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the Note to Part I of Form S-8.
PART
II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents previously filed with the Securities and Exchange Commission
(the “Commission”) by Benchmark Electronics, Inc. (the “Registrant”) pursuant to
the Securities Act and the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) are incorporated by reference herein and shall be deemed a part
hereof:
(1) the
Registrant’s Annual Report on Form 10-K for the year ended December 31, 2007
filed with the Commission on February 28, 2008;
(2) the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2008
filed with the Commission on May 9, 2008;
(3) the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2008
filed with the Commission on August 8, 2008;
(4) the
Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2008 filed with the Commission on November 7, 2008; and
(5) the
Registrant’s Current
Reports on Form 8-K filed with the Commission on March 17, 2008, July 24, 2008, September 11, 2008, October
15, 2008 and November 4, 2008.
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of the filing of such documents (excluding any Current Reports on Form 8-K
to the extent disclosure is furnished and not filed).
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
herein or in any subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM
4. DESCRIPTION OF SECURITIES.
The
Benchmark Electronics, Inc. Deferred Compensation Plan (the “Plan”) allows
certain designated employees to defer up to 75% of their base salary and up to
100% of other types of “compensation” (as defined in the Plan) on a tax-deferred
basis. Participants may receive matching contributions from the Registrant on
certain of their deferrals. Some participants may also receive discretionary
contributions made by the Registrant. The Registrant intends that the Plan will
at all times be maintained on an unfunded basis for federal income tax purposes
under the Internal Revenue Code and administered as a nonqualified “top-hat”
plan exempt from the substantive requirements of the Employee Retirement Income
Security Act.
Participants’
accounts under the Plan are credited in accordance with the deemed investment
options elected by the participant. The rate of return, positive or negative,
credited under each deemed investment option is based on the actual investment
performance of the applicable investment funds, net of asset-based charges.
Participants are immediately vested in all contributions to the Plan, except for
the discretionary contributions made for certain participants, the vesting of
which will be determined under a vesting schedule and service crediting rules
specified in advance by the Plan Administrator, but will become fully vested
upon the occurrence of the earliest of (i) the participant’s death while
actively employed or (ii) a “Change in Control” (as defined in the Plan). At the
time of the election to defer compensation, each participant may elect either a
specific date or stated events upon which distributions of his or her account
balance will occur and whether such distributions will be in the form of a lump
sum payment or annual installments over a period of two to fifteen years (five
years in the case of in-service distribution). Lump sum distributions will be
made in the case of death, unforeseeable emergency or a Change in Control. In no
event may in-service distributions be made until at least two years after the
year in which such amount was deferred. If an “unforeseeable emergency” (as
defined in the Plan) occurs, the participant may apply to the Registrant to
receive an immediate lump sum distribution of all or a portion of the balance in
his or her account subject to the restrictions set forth in the
Plan.
The
obligations of the Registrant under the Plan are general unsecured obligations
of the Registrant to pay the deferred compensation in the future in accordance
with the terms of the Plan. Benefits are payable out of the general assets of
the Registrant, and no segregation of assets for benefits may be made. The
Registrant has established a grantor (Rabbi) trust as a vehicle for accumulating
assets to pay the Registrant’s obligations under the Plan. Assets held in the
Rabbi trust are considered assets of the Registrant and participants do not have
rights to any specific assets of the Registrant, except as general creditors of
the Registrant.
The
deferred compensation obligations are not subject to redemption, in whole or in
part, prior to the individual payment dates specified by each participant,
except in the event of death or, at the participant’s request, an unforeseeable
emergency, as described in the Plan. The obligations are not convertible into
another security of the Registrant. The obligations will not have the benefit of
a negative pledge or any other affirmative or negative covenant on the part of
the Registrant. Except as expressly provided in the Plan, no participant may
transfer (other than by will or the laws of descent and distribution), alienate
or otherwise encumber the participant’s interest in the Plan. The Registrant’s
obligations under the Plan are not assignable or transferable except to any
corporation or partnership that acquires all or substantially all of the
Registrant’s assets or any corporation or partnership into which the Registrant
may be merged or consolidated. There is no trading market for the deferred
compensation obligations.
The
Registrant reserves the right to amend or terminate the Plan at any time, except
that no such amendment or termination may adversely affect the rights of the
participants to the balance of their deferred compensation accounts as of the
date of such amendment or termination. If the Plan is terminated, participants
will be entitled to a distribution of their benefits if the termination is on
account of certain permitted distribution events under Section 409A of the
Internal Revenue Code and the regulations thereunder and the requirements of
such regulations are met with respect to the termination of the Plan and the
distribution of benefits.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Kenneth
S. Barrow, Vice President and General Counsel and Corporate Secretary of the
Registrant, is providing an opinion on the legality of the Deferred Compensation
Obligations being registered hereby. Mr. Barrow beneficially owns 4,000 Common
Shares of the Registrant, all of which are unvested. Mr. Barrow participates in
employee benefit plans of the Registrant on the same basis as other eligible
employees, pursuant to which he owns or has options or other rights to acquire
an aggregate of less than 1% of the Registrant’s outstanding Common Shares.
Mr. Barrow is eligible to participate in the Plan, although the amount of
the Deferred Compensation Obligations issuable to him thereunder is not
presently determinable.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
TEXAS
BUSINESS CORPORATION ACT
Article
2.02-1.B of the Texas Business Corporation Act, as amended (the “TBCA”), grants
to a corporation the power to indemnify a person who was, is or is threatened to
be made a named defendant or respondent in a proceeding because the person is or
was a director of the corporation against judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses actually incurred
in connection therewith, only if it is determined that the person (1) conducted
himself in good faith; (2) reasonably believed that (a) in the case of conduct
in his official capacity as a director of the corporation, his conduct was in
the corporation's best interests, and (b) in all other cases, his conduct was at
least not opposed to the corporation's best interests; and (3) in the case of
any criminal proceeding, he had no reasonable cause to believe that his conduct
was unlawful. Article 2.02-1.C limits the allowable indemnification by providing
that, except to the extent permitted by Article 2.02-1.E, a director may not be
indemnified in respect of a proceeding in which the person is found liable (1)
on the basis that he improperly received a personal benefit, whether or not the
benefit resulted from an action taken in his official capacity, or (2) to the
corporation. Article 2.02-1.E provides that if a director is found liable to the
corporation or is found liable on the basis that he received a personal benefit,
the permissible indemnification (1) is limited to reasonable expenses actually
incurred by the person in connection with the proceeding, and (2) shall not be
made in respect of any proceeding in which the person shall have been found
liable for willful or intentional misconduct in the performance of his duty to
the corporation. Finally, Article 2.02-1.H provides that a corporation shall
indemnify a director against reasonable expenses incurred by him in connection
with a proceeding in which he is a named defendant or respondent because he is
or was a director if he has been wholly successful, on the merits or otherwise,
in defense of the proceeding.
With
respect to the officers of a corporation, Article 2.02-1.O of the TBCA provides
that a corporation may indemnify and advance expenses to an officer of the
corporation to the same extent that it may indemnify and advance expenses to
directors under Article 2.02-1. Further, Article 2.02-1.O provides that an
officer of a corporation shall be indemnified as, and to the same extent,
provided by Article 2.02-1.H for a director.
AMENDED
AND RESTATED BYLAWS
The
Amended and Restated Bylaws of the Registrant make mandatory the indemnification
of and advancement of reasonable expenses to its directors who become involved
in indemnifiable legal proceedings, subject to their compliance with certain
requirements imposed by Texas law.
INDEMNITY
AGREEMENTS
The
Registrant has entered into Indemnity Agreements with its directors and officers
pursuant to which the Registrant generally is obligated to indemnify its
directors and officers to the full extent permitted by Texas law.
INSURANCE
The
Registrant has obtained officers’ and directors’ liability insurance which
insures against liabilities that officers and directors of the Registrant may
incur in such capacities.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
The
following exhibits are filed as part of this Registration
Statement:
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4.1
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Restated
Articles of Incorporation of the Registrant (incorporated herein by
reference to Exhibit 3.1 to the Registrant’s Registration Statement on
Form S-1 (Registration No. 33-46316) (the “Registration
Statement”)).
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4.2
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Amended
and Restated Bylaws of the Registrant (incorporated herein by reference to
Exhibit 99.2 to the Registrant’s Current Report on Form 8-K dated May 18,
2006 and filed on May 19, 2006 (Commission file number
1-10560)).
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4.3
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Amendment
to the Restated Articles of Incorporation of the Registrant adopted by the
shareholders of the Registrant on May 20, 1997 (incorporated by reference
to Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K for the year
ended December 31, 1998 (Commission file number
1-10560)).
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4.4
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Specimen
form of certificate evidencing the Common Stock (incorporated herein by
reference to Exhibit 4.3 to the Registration
Statement).
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4.5
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Rights
Agreement dated December 11, 1998 between the Registrant and Harris Trust
and Savings Bank, as Rights Agent, together with the following exhibits
thereto: Exhibit A - Form of Statement of Resolution Establishing Series A
Cumulative Participating Preferred Stock of Benchmark Electronics, Inc.;
Exhibit B - Form of Right Certificate; and Exhibit C - Summary of Rights
to Purchase Preferred Stock of Benchmark Electronics, Inc. (incorporated
by reference to Exhibit 1 to the Registrant’s Form 8-A12B filed December
11, 1998 (Commission file number
1-10560)).
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4.6
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Summary
of Rights to Purchase Preferred Stock of Benchmark Electronics, Inc.
(incorporated herein by reference to Exhibit 3 to the Registrant’s Form
8-A12B/A filed December 22, 1998 (Commission file number
1-10560)).
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4.7
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Amendment
to the Restated Articles of Incorporation of the Registrant approved by
the shareholders of the Registrant on August 13, 2002 (incorporated by
reference to Exhibit 4.7 to the Registrant’s Form S-8 (Registration Number
333-103183)).
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4.8
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Amendment
to the Restated Articles of Incorporation of the Registrant approved by
the shareholders of the Registrant on May 10, 2006 (incorporated by
reference to Exhibit 99.1 to the Registrant’s Form 8-K dated October 16,
2006 and filed on October 16, 2006 (Commission file number
1-10560)).
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5.1
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Opinion
of Counsel.
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23.1
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Consent
of KPMG LLP.
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23.2
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Consent
of Kenneth S. Barrow (included in Exhibit
5.1).
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99.1
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Benchmark
Electronics, Inc. Deferred Compensation
Plan.
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ITEM
9. UNDERTAKINGS.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933.
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement.
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement.
PROVIDED,
HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Angleton, State of Texas, on December 10, 2008.
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BENCHMARK
ELECTRONICS, INC.
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By:
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/s/ Cary T.
Fu
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Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the date
indicated.
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Name
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Position
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Date
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Director
and
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/s/
Cary T. Fu
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Chief
Executive Officer
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December
10, 2008
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Cary
T. Fu
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(principal
executive officer)
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/s/
Donald F. Adam
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Chief
Financial Officer
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December
10, 2008
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Donald
F. Adam
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(principal
financial
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and
accounting officer)
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/s/
Donald E. Nigbor
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Chairman
of the Board
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December
10, 2008
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Donald
E. Nigbor
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of
Directors
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/s/
Steven A. Barton
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Director
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December
10, 2008
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Steven
A. Barton
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/s/
Michael R. Dawson
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Director
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December
10, 2008
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Michael
R. Dawson
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/s/
Peter G. Dorflinger
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Director
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December
10, 2008
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Peter
G. Dorflinger
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/s/
Douglas G. Duncan
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Director
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December
10, 2008
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Douglas
G. Duncan
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/s/
Laura W. Lang
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Director
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December
10, 2008
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Laura
W. Lang
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/s/
Bernee D.L. Strom
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Director
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December
10, 2008
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Bernee
D.L. Strom
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/s/
Clay C. Williams
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Director
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December
10, 2008
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Clay
C. Williams
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Pursuant
to the requirements of the Securities Act of 1933, the trustee (or other persons
who administer the employee benefit plan) has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Angleton, State of Texas, on December 10,
2008.
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BENCHMARK
ELECTRONICS, INC.
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By:
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/s/ Timothy B. Timbrook
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Timothy
B. Timbrook
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Vice
President Human
Resources
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EXHIBIT
INDEX
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Exhibit
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Number
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Description
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5.1
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Opinion
of Counsel.
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23.1
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Consent
of KPMG LLP.
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23.2
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Consent
of Kenneth Barrow (included in the opinion filed as Exhibit 5.1
hereto).
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99.1
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Benchmark
Electronics, Inc. Deferred Compensation
Plan.
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