<PAGE> 1
As filed with the Securities and Exchange Commission on June 20, 1996.
Registration No. ________________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
BERG ELECTRONICS CORP.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
DELAWARE 75-2451903
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
JAMES N. MILLS
101 SOUTH HANLEY ROAD
101 SOUTH HANLEY ROAD ST. LOUIS, MISSOURI 63105
ST. LOUIS, MISSOURI 63105 (314) 726-1323
(Address, Including Zip Code, of Registrant's (Name, Address, Including Zip Code, and
Principal Executive Offices) Telephone Number, Including Area Code, of
Agent for Service)
</TABLE>
BERG ELECTRONICS HOLDINGS CORP. 1993 STOCK OPTION PLAN
(Full Title of the Plan)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered (1) Registered (1) Per Share (2) Offering Price (2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 Par Value 504,370 Shares $24.875 $12,546,204 $4,327
==================================================================================================================================
</TABLE>
(1) Shares of common stock, $.01 par value per share ("Common Stock"), of
Berg Electronics Corp. (the "Company") being registered hereby relate
to the Company's 1993 Stock Option Plan. Pursuant to Rule 416(a)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), there is also being registered an indeterminate
amount of additional shares of Common Stock as may become issuable as
a result of stock splits, stock dividends or similar transactions.
(2) In accordance with section (h)(1) of Rule 457 promulgated under the
Securities Act, calculated on the basis of the average of the high and
low prices of the Common Stock as reported on the New York Stock
Exchange on June 18, 1996.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Annual Report
on Form 10-K referred to in (a) above; and
(c) The description of the Company's Common Stock, which is
contained in the Company's Registration Statement on Form 8-A (File No.
1-14080) filed under Section 12(b) of the Exchange Act on November 9, 1995,
including any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
of the shares of Common Stock offered have been sold or which deregisters all
of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement 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
contained herein or in any other subsequently filed document 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.
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware corporation has
the power, under specified circumstances and subject to certain limitations, to
indemnify its directors, officers, employees and agents in connection with
actions, suits or proceedings brought against them by a third party or in the
right of the corporation, by reason of the fact that they were or are such
directors, officers, employees or agents, against liabilities and expenses
incurred in any such action, suit, or proceeding. Article Tenth of the
Certificate of Incorporation of the Company provides for mandatory
indemnification of directors and officers to the fullest extent permitted by
the General Corporation Law of the State of Delaware.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company
of expenses incurred or paid by a director, officer or controlling person
thereof 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 pursuant to this Registration Statement, the
Company will, unless in the opinion of 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of Berg Electronics Corp. (f/k/a Berg
Electronics Group, Inc.; f/k/a Berg Electronics Holdings Corp.; f/k/a
Berg CS Holdings, Inc.), together with amendments thereto. (Filed
previously as an exhibit to the Company's Registration Statement on
Form S-1 (File No. 33-98240), and incorporated by reference herein).
II-2
<PAGE> 4
4.2 Certificate of Amendment to Certificate of Incorporation, dated
February 29, 1996, of Berg Electronics Corp. (Filed previously as an
exhibit to the Berg Electronics Corp. Form 10-K for the year ended
December 31, 1995, and incorporated by reference herein).
4.3 Amended and Restated Bylaws of Berg Electronics Corp. (Filed
previously as an exhibit to the Company's Registration Statement on
Form S-1 (File No. 33-98240), and incorporated by reference herein).
4.4 1993 Stock Option Plan.*
5. Opinion of Weil, Gotshal & Manges LLP.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24. Power of Attorney (see pages II-5 and II-6 of this Registration
Statement).
_______________________________
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement to include any material
information with respect to the plan of distribution
not previously disclosed in this Registration
Statement or any material change to such information
in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
II-3
<PAGE> 5
(b) The undersigned hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this 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) See Item 6.
[The remainder of this page is intentionally left blank.]
II-4
<PAGE> 6
SIGNATURES
The Registrant. 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 Clayton, State of Missouri, on this
20th day of June, 1996.
BERG ELECTRONICS CORP.
By: /s/ DAVID M. SINDELAR
------------------------------------------------
David M. Sindelar
Senior Vice President and Chief Financial Officer
Each person whose signature to this Registration Statement appears
below hereby appoints David M. Sindelar as his attorney-in-fact to sign on his
behalf individually and in the capacity stated below and to file all
post-effective amendments to this Registration Statement, which amendments may
make such changes in and additions to this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ JAMES N. MILLS Chairman of the Board of Directors and June 20, 1996
---------------------------------------------- Chief Executive Officer (Principal
James N. Mills Executive Officer)
/s/ DAVID M. SINDELAR Senior Vice President and Chief June 20, 1996
---------------------------------------------- Financial Officer (Principal Financial
David M. Sindelar Officer)
/s/ JOSEPH S. CATANZARO Chief Accounting Officer June 20, 1996
---------------------------------------------- (Principal Accounting Officer)
Joseph S. Catanzaro
/s/ THOMAS O. HICKS Director June 20, 1996
----------------------------------------------
Thomas O. Hicks
/s/ ROBERT N. MILLS Director, President and Chief Operating June 20, 1996
---------------------------------------------- Officer
Robert N. Mills
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ CHARLES W. TATE Director June 20, 1996
----------------------------------------------
Charles W. Tate
/s/ RICHARD W. VIESER Director June 20, 1996
----------------------------------------------
Richard W. Vieser
/s/ KENNETH F. YONTZ Director June 20, 1996
----------------------------------------------
Kenneth F. Yontz
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
4.1 Certificate of Incorporation of Berg Electronics Corp. (f/k/a Berg
Electronics Group, Inc.; f/k/a Berg Electronics Holdings Corp.; f/k/a
Berg CS Holdings, Inc.), together with amendments thereto. (Filed
previously as an exhibit to the Company's Registration Statement on Form
S-1 (File No. 33-98240), and incorporated by reference herein).
4.2 Certificate of Amendment to Certificate of Incorporation, dated February
29, 1996, of Berg Electronics Corp. (Filed previously as an exhibit to
the Berg Electronics Corp. Form 10-K for the year ended December 31,
1995, and incorporated by reference herein).
4.3 Amended and Restated Bylaws of Berg Electronics Corp. (Filed previously
as an exhibit to the Company's Registration Statement on Form S-1 (File
No. 33-98240), and incorporated by reference herein).
4.4 1993 Stock Option Plan.
5. Opinion of Weil, Gotshal & Manges LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
24. Power of Attorney (see pages II-5 and II-6 of this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.4
BERG ELECTRONICS HOLDINGS CORP.
1993 STOCK OPTION PLAN
1. Purpose.
Berg Electronics Holdings Corp., a Delaware corporation (the
"Company"), by means of this 1993 Stock Option Plan (the "Plan"), desires to
afford certain individuals and/or entities and key employees of the Company and
any parent corporation or subsidiary corporation thereof now existing or
hereafter formed or acquired (such parent and subsidiary corporations sometimes
referred to herein as "Related Entities") who are responsible for the continued
growth of the Company an opportunity to acquire a proprietary interest in the
Company, and thus to create in such persons an increased interest in and a
greater concern for the welfare of the Company and any Related Entities. As
used in the Plan, the terms "parent corporation" and "subsidiary corporation"
shall mean, respectively, a corporation within the definition of such terms
contained in Sections 424(e) and 424(f), respectively, of the Internal Revenue
Code of 1986, as amended (the "Code").
The stock options described in Sections 6 and 7 (the
"Options"), and the shares of Common Stock (as hereinafter defined) acquired
pursuant to the exercise of such Options are a matter of separate inducement
and are not in lieu of any salary or other compensation for services.
2. Administration.
The Plan shall be administered by the Option Committee, or any
successor thereto, of the Board of Directors of the Company (the "Board of
Directors"), or by any
<PAGE> 2
other committee appointed by the Board of Directors to administer this Plan
(the "Committee"). The number of individuals that shall constitute the
Committee shall be determined from time to time by a majority of all the
members of the Board of Directors, and, unless that majority of the Board of
Directors determines otherwise, shall be no less than two individuals. A
majority of the Committee shall constitute a quorum (or if the Committee
consists of only two members, then both members shall constitute a quorum), and
subject to the provisions of Section 5, the acts of a majority of the members
present at any meeting at which a quorum is present, or acts approved in
writing by a majority of the Committee, shall be the acts of the Committee.
Whenever the Company shall have a class of equity securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), each member of the Committee shall be required to be a
"disinterested person" to administer the Plan within the meaning of Rule 16b-3,
as amended, or other applicable rules under Section 16(b) of the Exchange Act,
and the Committee shall administer the Plan so as to comply at all times with
the Exchange Act.
Each member of the Committee shall serve at the pleasure of
the Board of Directors, which shall have the power, at any time and from time
to time, to remove any member from or add members to the Committee. Removal
from the Committee may be with or without cause. Any individual serving as a
member of the Committee shall have the right to resign from membership in the
Committee by written notice to the Board of Directors.
2
<PAGE> 3
The Board of Directors, and not the remaining members of the Committee, shall
have the power and authority to fill vacancies on the Committee, however
caused. The Board of Directors shall promptly fill any vacancy that causes the
number of members of the Committee to be below two or any other number that
Rule 16b-3 may require from time to time.
3. Shares Available.
Subject to the adjustments provided in Section 9, the maximum
aggregate number of shares of Common Stock, par value $0.01 per share, of the
Company ("Common Stock") which may be granted for all purposes under the Plan
shall be 511,669 shares. If, for any reason, any shares as to which Options
have been granted cease to be subject to purchase thereunder, including,
without limitation, the expiration of such Option, the termination of such
Option prior to exercise or the forfeiture of such Option, such shares shall
thereafter be available for grants to such individual or other individuals
under the Plan. Options granted under the Plan may be fulfilled in accordance
with the terms of the Plan with (i) authorized and unissued shares of the
Common Stock, (ii) issued shares of such Common Stock held in the Company's
treasury or (iii) issued shares of Common Stock reacquired by the Company in
each situation as the Board of Directors or the Committee may determine from
time to time at its sole option.
3
<PAGE> 4
4. Eligibility and Basis of Participation.
Grants of Incentive Options (as hereinafter defined) and
Non-Qualified Options (as hereinafter defined) may be made under the Plan,
subject to and in accordance with Section 6, to Key Employees. As used herein,
the term "Key Employee" shall mean any employee of the Company or any Related
Entity, including officers and directors of the Company or any Related Entity
who are also employees of the Company or any Related Entity, who are regularly
employed on a salaried basis and who are so employed on the date of such grant,
whom the Committee identifies as having a direct and significant effect on the
performance of the Company or any Related Entity.
The adoption of this Plan shall not be deemed to give any
Person a right to be granted any Options.
5. Authority of Committee.
Subject to and not inconsistent with the express provisions of
the Plan, the Code and Rule 16b-3, the Committee shall have plenary authority,
in its sole discretion, to:
a. determine the Key Employees and Eligible Non
Employees to whom Options shall be granted, the time when such Options
shall be granted, the number of Options, the purchase price or
exercise price of each Option, the period(s) during which such Option
shall be exercisable (whether in whole or in part), the restrictions
to be applicable to Options and the other terms and provisions thereof
(which need not be identical);
4
<PAGE> 5
b. require, as a condition to the granting of any
Option, that the person receiving such Option agree not to sell or
otherwise dispose of such Option, any Common Stock acquired pursuant
to such Option or any other "derivative security" (as defined by Rule
16a-1(c) under the Exchange Act) for a period of six (6) months
following the later of (i) the date of the grant of such Option or
(ii) the date when the exercise price of such Option is fixed if such
exercise price is not fixed at the date of grant of such Option;
c. provide an arrangement through registered
broker-dealers whereby temporary financing may be made available to an
optionee by the broker-dealer, under the rules and regulations of the
Board of Governors of the Federal Reserve, for the purpose of
assisting the optionee in the exercise of an Option, such authority to
include the payment by the Company of the commissions of the
broker-dealer;
d. provide the establishment of procedures for an
optionee (1) to have withheld from the total number of shares of
Common Stock to be acquired upon the exercise of an Option (other than
an Incentive Option) that number of shares having a Fair Market Value
(as defined in Section 11) which, together with such cash as shall be
paid in respect of fractional shares, shall equal the Option exercise
price, and (2) to exercise a portion of an Option by delivering that
number of shares of Common Stock already owned by such optionee having
a Fair Market Value which shall equal the partial Option exercise
price and to deliver the shares thus acquired by such
5
<PAGE> 6
optionee in payment of shares to be received pursuant to the exercise
of additional portions of such Option, the effect of which shall be
that such optionee can in sequence utilize such newly acquired shares
in payment of the exercise price of the entire Option, together with
such cash as shall be paid in respect of fractional shares; provided,
however, that in the case of an Incentive Option, no stock shall be
used to pay the exercise price unless such shares were not acquired
through the exercise of an Incentive Option or, if so acquired, have
been held for more than two years since the grant of such Option and
for more than one year since the exercise of such Option;
e. provide the establishment of a procedure whereby a
number of shares of Common Stock or other securities may be withheld
from the total number of shares of Common Stock or other securities to
be issued upon exercise of an Option (other than an Incentive Option)
to meet the obligation of withholding for income, social security and
other taxes incurred by an optionee upon such exercise or required to
be withheld by the Company in connection with such exercise;
f. prescribe, amend, modify and rescind rules and
regulations relating to the Plan;
g. make all determinations, perform all other
acts, exercise all other powers and establish any other procedures
determined by the Committee to be necessary, appropriate or advisable
in administering the Plan or for the conduct of the Committee's
business.
6
<PAGE> 7
The Committee may delegate to one or more of its members, or to one or more
agents, such administrative duties as it may deem advisable, and the Committee
or any person to whom it has delegated duties as aforesaid may employ one or
more persons to render advice with respect to any responsibility the Committee
or such person may have under the Plan; provided, however, that whenever the
Company has a class of equity securities registered under Section 12 of the
Exchange Act, the Committee may not delegate any duties to a member of the
Board of Directors who, if elected to serve on the Committee, would not qualify
as a "disinterested person" to administer the Plan as contemplated by Rule
16b-3, as amended, or other applicable rules under the Exchange Act. The
Committee may employ attorneys, consultants, accountants, or other persons and
the Committee, the Company, and its officers and directors shall be entitled to
rely upon the advice, opinions or valuations of any such persons. All actions
taken and all interpretations and determinations made by the Committee in good
faith shall be final and binding upon all persons who have received grants
under the Plan, the Company and all other interested persons. No member or
agent of the Committee shall be personally liable for any action, determination
or interpretation made in good faith with respect to the Plan and all members
and agents of the Committee shall be fully protected by the Company in respect
of any such action, determination or interpretation.
6. Stock Options for Key Employees.
Subject to the express provisions of this Plan, the Committee
shall have the authority, in its sole discretion, to grant incentive stock
options pursuant to Section 422 of
7
<PAGE> 8
the Code ("Incentive Options"), to grant non-qualified stock options (options
which do not qualify under Section 422 of the Code) ("Non-Qualified Options")
or to grant both types of Options to Key Employees. No Incentive Option shall
be granted pursuant to this Plan more than ten (10) years after the earlier of
ten years from the date of adoption of the Plan or ten (10) years from the date
of approval of the Plan by the shareholders of the Company. Notwithstanding
anything in this Plan to the contrary, Incentive Options may be granted only to
Key Employees. The terms and conditions of the Options granted under this
Section 6 shall be determined from time to time by the Committee; provided,
however, that the Options granted under this Section 6 shall be subject to the
following:
a. Option Price. The Committee shall establish the
option price at the time any Option is granted at such amount as the
Committee in its sole discretion shall determine, subject to the
following limitations in the case of Incentive Options. The option
price for each share purchasable under any Incentive Option granted
hereunder shall be such amount as the Committee shall, in its best
judgment, determine to be not less than the greater of (i) the par
value per share of such stock and (ii) one hundred percent (100%) of
the Fair Market Value per share at the date the Option is granted;
provided, however, that in the case of an Incentive Option granted to
a person who, at the time such Incentive Option is granted, owns
shares of the Company or any Related Entity which possess more than
ten percent (10%) of the total combined voting power of all classes of
shares of the Company or of any
8
<PAGE> 9
Related Entity, the purchase price for each share shall be such amount
as the Committee, in its best judgment, shall determine to be not less
than the greater of (i) the par value per share of such stock and (ii)
one hundred ten percent (110%) of the Fair Market Value per share at
the date the Option is granted. The option price will be subject to
adjustment in accordance with the provisions of Section 9 of the Plan.
b. Payment. The price per share of Common Stock with
respect to each Option shall be payable at the time the Option is
exercised. Such price shall be payable (i) in cash or by an
equivalent means acceptable to the Committee, (ii) on the Committee's
prior consent, by delivery to the Company of shares of Common Stock
owned by the optionee or by the delivery or withholding of shares
pursuant to a procedure created pursuant to Section 5.d. of the Plan
and subject to certain limitations with respect to Incentive Options
described in such section 5.d. or (iii) by any combination of clauses
(i) and (ii). Shares delivered to or withheld by the Company in
payment of the option price shall be valued at the Fair Market Value
of the Common Stock on the day preceding the date of the exercise of
the Option.
c. Continuation of Employment. Each Non-Qualified
Option granted to a Key Employee by its terms shall require the
optionee to remain in the continuous employ of the Company, or any
Related Entity, for a period of six (6) months, or such other such
period, if any, as the Committee in its sole discretion may determine,
from the date of grant of the Option before the right to exercise any
part of the
9
<PAGE> 10
Option will accrue. Each Incentive Option by its terms shall require
the optionee to remain in the continuous employ of the Company or any
Related Entity, from the date of grant of the Incentive Option until
no more than three months prior to the date of exercise of the
Incentive Option.
d. Exercisability of Stock Option. Subject to Section
8, each Option shall be exercisable in one or more installments as the
Committee in its sole discretion may determine at the time of the
grant. The right to purchase shares shall be cumulative so that when
the right to purchase any shares has accrued such shares or any part
thereof may be purchased at any time thereafter until the expiration
or termination of the Option. No Option by its terms shall be
exercisable after the expiration of ten (10) years from the date of
grant of the Option, or such other period (in the case of
Non-Qualified Options) or such shorter period (in the case of
Incentive Options) as the Committee in its sole discretion may
determine; provided, however, in the case of an Incentive Option
granted to a person who, at the time such Option is granted, owns
stock of the Company, or any Related Entity, possessing more than ten
percent (10%) of the total combined voting power of all classes of
stock of the Company, or any Related Entity, such Option shall not be
exercisable after the expiration of five (5) years from the date such
Option is granted.
e. Death. In the event of the death of any optionee,
the estate of such optionee, or a person who acquired the right to
exercise such Option by bequest or
10
<PAGE> 11
inheritance or by reason of the death of the optionee, shall have the
right, at any time and from time to time within six (6) months after
the date of death, or such other period, if any, as the Committee in
its sole discretion may determine (but not after the expiration date
of the Option), to exercise such optionee's Option with respect to all
or any part of the shares of stock which such optionee was entitled to
purchase immediately prior to the time of his death. In the case of
an Incentive Option, the estate of an optionee, or a person who
acquired the right to exercise such Option by bequest or inheritance
or by reason of the death of the optionee, is not required to exercise
the Incentive Option within three months of the end of the optionee's
continuous employment by the Company or a Related Entity, as is
otherwise required by Section 6.c.
f. Disability. If the employment of any optionee is
terminated because of Disability (as defined in Section 11), such
optionee shall have the right, at any time and from time to time
within six (6) months after the date of termination, or such other
period, if any, as the Committee in its sole discretion may determine
(or within a maximum of one (1) year after the date of such
termination in the case of an Incentive Option) (but not after the
expiration date of the Option), to exercise his Option with respect to
all or any part of the shares of stock which such optionee was
entitled to purchase immediately prior to the time of such
termination.
11
<PAGE> 12
g. Other Termination or For Cause. If the employment of
an optionee is terminated for any reason other than those specified in
subsections 6(e) and (f) above, such optionee shall have the right,
within thirty (30) days after the date of such termination, or such
other period, if any, as the Committee in its sole discretion may
determine (or a maximum of three (3) months in the case of an
Incentive Option) (but not after the expiration date of the Option),
to exercise his Option with respect to all or any part of the shares
of stock which such optionee was entitled to purchase immediately
prior to the time of such termination, except that, unless the
Committee in its sole discretion provides otherwise, if such
optionee's employment was terminated by the Company or any Related
Entity for good cause (as defined below), or if the optionee
voluntarily terminates employment without the consent of the Company
or any Related Entity (of which fact the Committee shall be the sole
judge), such optionee shall immediately forfeit all rights under his
Option except as to the shares of stock already purchased.
Termination for "good cause" shall mean (unless another definition is
agreed to in writing by the Company and the optionee) termination by
action of the Board of Directors because of: (A) the optionee's
conviction of, or plea of nolo contendere to, a felony or a crime
involving moral turpitude; (B) the optionee's personal dishonesty,
incompetence, willful misconduct, willful violation of any law, rule,
or regulation (other than minor traffic violations or similar
offenses) or breach of fiduciary duty which involves personal profit;
(C) the
12
<PAGE> 13
optionee's commission of material mismanagement in the conduct of his
duties as assigned to him by the Board of Directors or the President
of the Company; (D) the optionee's willful failure to execute or
comply with the policies of the Company or his stated duties as
established by the Board of Directors or the President of the Company,
or intentional failure to perform his stated duties; or (E) the
illegal use of drugs on the part of the optionee. The determination
that there exists "good cause" for termination shall be made by the
Option Committee (unless otherwise agreed to in writing by the Company
and the optionee) and such determination shall be conclusive.
h. Maximum Exercise. The aggregate Fair Market Value of
stock (determined at the time of the grant of the Option) with respect
to which Incentive Options are exercisable for the first time by an
optionee during any calendar year under all plans of the Company and
any Related Entity shall not exceed $100,000.
7. Change of Control.
Any option agreement pursuant to which an Option is granted
under the Plan (an "Option Agreement") may provide that upon the occurrence of
an event constituting a Change in Control (as defined in Section 11), the
optionee shall become immediately fully vested in all unexercised Options
granted pursuant to the Plan; provided, however, that with respect to any
Incentive Stock Option, such Option shall become exercisable under this Section
7 only to the extent that such accelerated exercisability does not result in
such Option's failing to comply with Section 6.h., unless the optionee consents
to such result.
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8. Adjustment of Shares.
In the event there is any change in the Common Stock by reason
of any consolidation, combination, liquidation, reorganization,
recapitalization, stock dividend, stock split, split-up, split-off, spin-off,
combination of shares, exchange of shares or other like change in capital
structure of the Company, the number or kind of shares or interests subject to
an Option and the per share price or value thereof shall be appropriately
adjusted by the Committee at the time of such event, provided that each
optionee's position with respect to the Option and the per share price or value
thereof shall not, as a result of such adjustment, be worse than it had been
immediately prior to such event. Any fractional shares or interests resulting
from such adjustment shall be eliminated. Notwithstanding the foregoing, (i)
each such adjustment with respect to an Incentive Option shall comply with the
rules of Section 424(a) of the Code, and (ii) in no event shall any adjustment
be made which would render any Incentive Option granted hereunder other than an
"incentive stock option" for purposes of Section 422 of the Code.
In the event of a Change of Control or a merger between the
Company and another corporation in which the Company is not the surviving
entity and where any optionee holds Options issued pursuant to this Plan which
have not been exercised, the Company shall cause such Options to be cancelled
and replacement Options to be issued by the surviving entity or a Related
Entity.
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9. Miscellaneous Provisions.
a. Assignment or Transfer. No grant of any "derivative
security" (as defined by Rule 16a-1(c) under the Exchange Act) made under the
Plan or any rights or interests therein shall be assignable or transferable by
an optionee except by will or the laws of descent and distribution. During the
lifetime of an optionee, Options granted hereunder shall be exercisable only by
the optionee.
b. Investment Representation. If a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Common Stock issuable upon exercise of an Option, is not in
effect at the time such Option is exercised, the Company may require, for the
sole purpose of complying with the Securities Act, that prior to delivering
such Common Stock to the exercising optionee, such optionee must deliver to the
Secretary of the Company a written statement (i) representing and warranting
that such Common Stock is being acquired for investment only and not with a
view to the resale or distribution thereof, (i) acknowledging and confirming
that such Common Stock may not be sold unless registered for sale under the
Securities Act or pursuant to an exemption from such registration and (iii)
agreeing that the certificates representing such Common Stock shall bear a
legend to the effect of the foregoing. Notwithstanding anything in this Plan
to the contrary, the Company shall not be required to deliver Common Stock
pursuant to any exercise of an Option if such action would, in the opinion of
counsel to the Company, result in a violation of any state or federal
securities law, and the Company may require that the exercising optionee
deliver any such written representations, written covenants and other
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<PAGE> 16
documents as the Company or its counsel deems reasonably necessary, if any,
including, without limitation, an opinion of counsel reasonably satisfactory to
the Company to the effect that such delivery of stock would not result in a
violation of any state or federal securities law. If, subsequent to the
delivery by an optionee of the written statement described in the preceding
paragraph, the Common Stock issuable upon exercise of an Option is registered
under the Securities Act, the Company may release such optionee from such
written statement.
c. Securities Act Legend. Certificates for shares of
Common Stock, when issued, may have substantially the following legend, or
statements of other applicable restrictions, endorsed thereon, and may not be
immediately transferable:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED
FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF
UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE
ISSUER (WHICH, IN THE DISCRETION OF THE ISSUER, MAY INCLUDE AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER) THAT SUCH
OFFER, SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION WILL NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
This legend shall not be required for shares of Common Stock issued pursuant to
an effective registration statement under the Securities Act.
d. Legend for Restrictions on Transfer. Each
certificate representing shares issued to an optionee pursuant to an Option
granted under the Plan shall, if such
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<PAGE> 17
shares are subject to any transfer restriction, including a right of first
refusal, provided for under this Plan or an Option Agreement, bear a legend
that complies with applicable law with respect to the restrictions on
transferability contained in this Section 10.d., such as:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY IMPOSED BY THAT
CERTAIN INSTRUMENT ENTITLED "BERG ELECTRONICS HOLDINGS CORP.
1933 STOCK OPTION PLAN" AS ADOPTED BY BERG ELECTRONICS
HOLDINGS CORP. (THE "CORPORATION") ON ___________ ___, 1993,
AND AN AGREEMENT THEREUNDER BETWEEN THE CORPORATION AND
[HOLDER] DATED ___________ ____, 1993, AND MAY NOT BE
TRANSFERRED, SOLD, OR OTHERWISE DISPOSED OF EXCEPT AS THEREIN
PROVIDED. THE CORPORATION WILL FURNISH A COPY OF SUCH
INSTRUMENT AND AGREEMENT TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE ON REQUEST TO THE CORPORATION AT
ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE.
e. Withholding Taxes. In the case of distributions of
Common Stock or other securities hereunder, the Company, as a condition of such
distribution, may require the payment (through withholding from the optionee's
salary, payment of cash by the optionee, reduction of the number of shares of
Common Stock or other securities to be issued (except in the case of an
Incentive Option), or otherwise) of any federal, state, local or foreign taxes
required by law to be withheld with respect to such distribution.
f. Costs and Expenses. The costs and expenses of
administering the Plan shall be borne by the Company and shall not be charged
against any Option nor to any employee receiving an Option.
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g. Funding of Plan. The Plan shall be unfunded. The
Company shall not be required to make any segregation of assets to assure the
payment of any Option under the Plan.
h. Other Incentive Plans. The adoption of the Plan does
not preclude the adoption by appropriate means of any other incentive plan for
employees.
i. Vesting. Except as otherwise provided herein, an
Option granted pursuant to the Plan shall vest and, hence, become exercisable
as determined by the Board of Directors or the Committee.
j. Effect on Employment. Nothing contained in the Plan
or any agreement related hereto or referred to herein shall affect, or be
construed as affecting, the terms of employment of any Key Employee except to
the extent specifically provided herein or therein. Nothing contained in the
Plan or any agreement related hereto or referred to herein shall impose, or be
construed as imposing, an obligation on (i) the Company or any Related Entity
to continue the employment of any Key Employee, and (ii) any Key Employee to
remain in the employ of the Company or any Related Entity.
10. Definitions.
a. "Fair Market Value" shall, as it relates to the
Common Stock, mean the average of the high and low prices of such Common Stock
as reported on the principal national securities exchange on which the shares
of Common Stock are then listed on the date specified herein, or if there were
no sales on such date, on the next preceding day on which
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<PAGE> 19
there were sales, or if such Common Stock is not listed on a national
securities exchange, the last reported bid price in the over-the-counter
market, or if such shares are not traded in the over-the-counter market, the
value of such Common Stock on such date as determined by the Committee in good
faith.
b. "Disability" shall be construed under the appropriate
provisions of the long-term disability plan maintained for the benefit of
employees of the Company or any Related Entity who are regularly employed on a
salaried basis unless another meaning shall be agreed to in writing by the
Committee and the optionee; provided, however, that in the case of an Incentive
Option "disability" shall have the meaning specified in Section 22(e)(3) of the
Code.
c. A "Change of Control" shall be deemed to have
occurred if, subsequent to the Effective Date of this Plan, (A) any "person"
(as such term is defined in Section 13(d) of the Exchange Act), other than
Hicks, Muse & Co. Incorporated, Mills & Partners, Inc. and/or their respective
affiliate or successors, is or becomes the beneficial owner, directly or
indirectly, of either (x) a majority of the Company's outstanding Common Stock
or (y) securities of the Company representing a majority of the combined voting
power of the Company's then outstanding voting securities, or (B) during any
period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors cease, at any time after the beginning
of such period, for any reason to constitute a majority of the Board of
Directors unless the election of each new director was nominated or ratified
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<PAGE> 20
by at least two-thirds of the directors still in office who were directors at
the beginning of such two-year period; provided, however, that in the case of
an Eligible Non-Employee serving as a director of the Company or any Related
Entity, the failure of such an Eligible Non-Employee nominated for re-election
by management to be re-elected in a contested proxy contest also shall
constitute a Change of Control as to such Eligible Non-Employee.
11. Amendment of Plan.
Subject to Section 7(i), the Board of Directors shall have the
right to amend, modify, suspend or terminate the Plan at any time, provided
that no amendment shall be made which shall increase the total number of shares
of the Common Stock which may be issued and sold pursuant to Options granted
under the Plan or decrease the minimum Option Price in the case of an Incentive
Option, or modify the provisions of the Plan relating to eligibility with
respect to Incentive Options unless such amendment is made by or with the
approval of the stockholders. The Board of Directors shall be authorized to
amend the Plan and the Options granted thereunder (i) to qualify as "incentive
stock options" within the meaning of Section 422 of the Code or (ii) to comply
with Rule 16b-3 (or any successor rule) under the Exchange Act. No amendment,
modification, suspension or termination of the Plan shall alter or impair any
Options previously granted under the Plan, without the consent of the holder
thereof.
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12. Effective Date.
The Plan shall become effective August 4, 1993, the date as of
which the Plan was adopted by the Board of Directors (the "Effective Date");
provided, however, that if the Plan is not approved by a vote of the
stockholders of the Company at an annual meeting or by written consent within
twelve (12) months before or after the Effective Date, the Plan and any Options
granted thereunder shall terminate.
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EXHIBIT 5
Weil, Gotshal & Manges LLP
100 Crescent Court
Suite 1300
Dallas, Texas 75201-6950
(214) 746-7700
Fax: (214) 746-7777
June 20, 1996
Berg Electronics Corp.
101 South Hanley Road, Suite 400
St. Louis, Missouri 63105
Ladies and Gentlemen:
We have acted as counsel to Berg Electronics Corp., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission (the "Commission") of a
Registration Statement on Form S-8 to be filed with the Commission on or about
June 20, 1996 (the "Registration Statement"), under the Securities Act of 1933,
as amended, with respect to the offer and sale by the Company of up to 504,370
shares (the "Registered Shares") of the common stock, par value $.01 per share,
of the Company issuable upon exercise of options granted pursuant to the
Company's 1993 Stock Option Plan (the "Plan").
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Plan, the form of option agreement under the Plan, and such corporate records,
agreements, documents, and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
the Company, and have made such inquiries of such officers and representatives,
as we have deemed relevant and necessary as a basis for the opinion hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates of officers and representatives of the Company.
<PAGE> 2
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that when (a) the purchase price of the
Registered Shares issuable pursuant to the exercise of an option granted under
the Plan has been appropriately determined in accordance with the terms of the
Plan and the provisions of the Delaware General Corporation Law (the "DGCL")
(including the provisions requiring the payment of consideration having a value
not less than the par value of such shares); (b) each such option has been duly
authorized in accordance with the terms of the Plan and the applicable
provisions of the DGCL and the option agreement has been duly executed and
delivered by the Company and the optionee; and (c) such Registered Shares are
issued and delivered against receipt of payment therefor in accordance with the
terms of the Plan and the option agreement, such Registered Shares will be
validly issued, fully paid and nonassessable.
The opinion expressed herein is limited to the corporate laws of the
State of Delaware and we express no opinion as to the effect on the matters
covered by this letter of the laws of any other jurisdiction.
The opinion expressed herein is rendered solely for your benefit in
connection with the transactions described herein. This opinion may not be used
or relied upon by any other person, nor may this letter or any copies thereof
be furnished to a third party, filed with a governmental agency, quoted, cited
or otherwise referred to without our prior written consent, except that we
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
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EXHIBIT 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 7, 1996
included in Berg Electronics Corp.'s Form 10-K for the year ended December 31,
1995 and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
St. Louis, Missouri
June 17, 1996
