-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, V9/o9rKoNyoHJaYLYSfVH+gzk5zIHT3eGRvi+Y7r8+mU366aiBMxD79xY9yZ61LJ 7J8Dg5uze5Hgfxo5Nx4ZDg== 0000906234-98-000035.txt : 19980629 0000906234-98-000035.hdr.sgml : 19980629 ACCESSION NUMBER: 0000906234-98-000035 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980626 EFFECTIVENESS DATE: 19980626 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERG ELECTRONICS CORP /DE/ CENTRAL INDEX KEY: 0000904900 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC CONNECTORS [3678] IRS NUMBER: 752451903 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57903 FILM NUMBER: 98655489 BUSINESS ADDRESS: STREET 1: 101 S HANLEY RD CITY: ST LOUIS STATE: MO ZIP: 63105 BUSINESS PHONE: 3147261323 MAIL ADDRESS: STREET 1: 101 S HANLEY RD STREET 2: STE 400 CITY: ST LOUIS STATE: MO ZIP: 63105 FORMER COMPANY: FORMER CONFORMED NAME: BERG ELECTRONICS CORP /DE/ DATE OF NAME CHANGE: 19951120 S-8 1 COMMON STOCK As filed with the Securities and Exchange Commission on June 26, 1998. 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) 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 (Name, Address, Including Zip Code, Registrant's Principal and Telephone Number, Including Executive Offices) Area Code, of Agent for Service) Berg Electronics Corp. 1998 Incentive Compensation Plan (Full Title of the Plan) CALCULATION OF REGISTRATION FEE
=================================================================================================== 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 - --------------------------------------------------------------------------------------------------- Common Stock, $.01 Par Value 977,713 Shares $20.50 $20,043,116.50 $5,912.72 =================================================================================================== (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 1998 Incentive Compensation 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 sections (c) and (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 24, 1998.
1 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, 1997; (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 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. 3.1 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 3.2 Certificate of Amendment to Certificate of Incorporation, dated February 29, 1996, of Berg Electronics Corp. (Filed previously as an exhibit to the Company's Form 10-K for the year ended December 31, 1995, and incorporated by reference herein.) 3.3 Certificate of Amendment to Amended Certificate of Incorporation, dated May 28, 1998, of Berg Electronics Corp.* 3.4 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.) 4.1 Certificate of Designations, Preferences and Rights of Series A Junior Preferred Stock of Berg Electronics Corp. (Filed previously as an exhibit to the Company's Form 10-K for the year ended December 31, 1997, and incorporated by reference herein.) 4.2 1998 Incentive Compensation 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 II-3 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 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 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 26th day of June, 1998. 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.
Signature Title Date --------- ----- ---- /s/ James N. Mills Chairman of the Board of Directors June 26, 1998 - --------------------------- and Chief Executive Officer James N. Mills (Principal Executive Officer) /s/ David M. Sindelar Senior Vice President and Chief June 26, 1998 - --------------------------- Financial Officer (Principal David M. Sindelar Financial Officer) /s/ Joseph S. Catanzaro Chief Accounting Officer (Principal June 26, 1998 - --------------------------- Accounting Officer) Joseph S. Catanzaro /s/ Timothy L. Conlon Director, President and Chief June 26, 1998 - --------------------------- Operating Officer Timothy L. Conlon II-5 /s/ Thomas O. Hicks Director June 26, 1998 - -------------------------- Thomas O. Hicks /s/ Charles W. Tate Director June 26, 1998 - -------------------------- Charles W. Tate /s/ Richard W. Vieser Director June 26, 1998 - -------------------------- Richard W. Vieser /s/ Kenneth F. Yontz Director June 26, 1998 - -------------------------- Kenneth F. Yontz
II-6 Exhibit Index Exhibit No. Description ------- ----------- 3.1 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.) 3.2 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.) 3.3 Certificate of Amendment to Amended Certificate of Incorporation, dated May 28, 1998, of Berg Electronics Corp. 3.4 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.) 4.1 Certificate of Designations, Preferences and Rights of Series A Junior Preferred Stock of Berg Electronics Corp. (Filed previously as an exhibit to the Company's Form 10-K for the year ended December 31, 1997, and incorporated by reference herein.) 4.2 1998 Incentive Compensation 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). EX-3.3 2 CERTIFICATE OF AMENDMENT EXHIBIT 3.3 CERTIFICATE OF AMENDMENT TO THE AMENDED CERTIFICATE OF INCORPORATION OF BERG ELECTRONICS CORP. The undersigned, being the Secretary of Berg Electronics Corp., a Delaware corporation (the "Corporation") does hereby certify: FIRST: The name of the Corporation is Berg Electronics Corp. SECOND: The Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 4, 1992. THIRD: The First Paragraph of Article FOURTH of the Amended Certificate of Incorporation is hereby amended to read in its entirety as follows: "FOURTH: The total number of shares of all classes of Capital Stock which the Corporation shall have authority to issue is 155,500,000 shares consisting of (a) 28,500,000 shares of a class designated as Preferred Stock, par value $.01 per share ("Preferred Stock"); (b) 120,000,000 shares of a class designated as Common Stock, par value $.01 per share ("Common Stock"); and (c) 7,000,000 shares of a class designated as Class A Common Stock, par value $.01 per share ("Class A Common Stock")." All of the designations and the powers, preferences, rights, qualifications, limitations, and restrictions of the Preferred Stock, the Common Stock and the Class A Common Stock set forth in the Amended Certificate of Incorporation of the Corporation currently existing shall remain unaltered or modified by this Amendment. FOURTH: The aforesaid Amendment to the Amended Certificate of Incorporation was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware by the Board of Directors. Thereafter, the Stockholders have approved the Amendment at the Annual Meeting in accordance with the Proxy Statement sent to all Shareholders prior to such meeting. IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed pursuant to Section 103(a)(2) of the General Corporate Law of the State of Delaware by the undersigned duly authorized officer of the Corporation as of the 28th day of May, 1998. BERG ELECTRONICS CORP. By: ---------------------------------- W. Thomas McGhee, Secretary 1 EX-4.2 3 1998 INCENTIVE COMPENSATION PLAN EXHIBIT 4.2 BERG ELECTRONICS CORP. 1998 INCENTIVE COMPENSATION PLAN 1.0 DEFINITIONS The following terms shall have the following meanings unless the context indicates otherwise: 1.1 "Affiliated Person" shall mean an employee of an entity other than the Company whose activities may benefit the Company and who has been designated by the Committee to be eligible to participate in the Plan. 1.2 "Award" shall mean either a Stock Option, a SAR, a Stock Award, a Stock Unit, a Performance Share, a Performance Unit, or a Cash Award. 1.3 "Award Agreement" shall mean a written agreement between the Company and the Participant that establishes the terms, conditions, restrictions and/or limitations applicable to an Award in addition to those established by the Plan and by the Committee's exercise of its administrative powers. 1.4 "Board" shall mean the Board of Directors of the Company. 1.5 "Cash Award" shall mean the grant by the Committee to a Participant of an Award of cash as described in Section 11 below. 1.6 "Change in Control" shall mean (a) the principals, officers, directors and employees of HMTF and Mills & Partners and management of the Company together with their affiliates (the "Control Group") shall cease to own of record and beneficially an amount of Common Stock equal to at least 25% of the amount of Common Stock owned by the Control Group of record and beneficially as of the date on which the Plan is approved by the stockholders of the Company, (b) any Person or related group (as defined in Rule 13(d) under the Exchange Act), excluding the Control Group, shall be or become the "beneficial owner" (as defined in Rules 12(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of a greater percentage of the outstanding Common Stock than is owned beneficially by the Control Group, or (c) the Board shall not consist of a majority of Continuing Directors. 1 1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. 1.8 "Committee" shall mean the Compensation Committee of the Board; provided that for purposes of determining the performance goals applicable to Employees who constitute "covered employees" within the meaning of Code Section 162(m), "Committee" shall mean the members of the Compensation Committee of the Board who qualify as (x) a "Non-Employee Director" within the meaning of Rule 16b-3(b)(3) (or any successor rule) under the Exchange Act and (y) an "outside director" within the meaning of Code Section 162(m), and such performance goals shall be subject to ratification by unanimous approval of the members of the Compensation Committee of the Board. In the event the Board fails to establish or maintain a Compensation Committee of the Board, "Committee" shall mean the Board or any other committee or subcommittee of the Board appointed by the Board from among its members. 1.9 "Common Stock" shall mean the common stock, $.01 par value per share, of the Company. 1.10 "Company" shall mean Berg Electronics Corp., a Delaware corporation. 1.11 "Continuing Directors" shall mean the directors of the Company on the date on which the Plan is approved by the stockholders of the Company and each other director, if in each case, such other director's nomination for election to the Board is recommended by a majority of the then Continuing Directors or such other director receives the vote of HMTF. 1.12 "Dividend Equivalent Right" shall mean the right to receive an amount equal to the amount of any dividend paid with respect to a share of Common Stock multiplied by the number of hypothetical shares of Common Stock underlying a Stock Unit or a Performance Unit, and which shall be payable in cash, in Common Stock, in the form of additional Stock Units or Performance Units (as the case may be) or a combination of all of the foregoing. 1.13 "Effective Date" shall mean the date on which the Plan is approved by the Company's stockholders. 1.14 "Employee" shall mean an employee or officer of the Company or any Subsidiary as described in Treasury Regulation Section 1.421-7(h). 1.15 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time, including applicable regulations thereunder. 1.16 "Fair Market Value of the Common Stock" shall mean: 2 (a) if the Common Stock is readily tradeable on a national securities exchange or other market system, the closing price of the Common Stock on the date of calculation (or on the last preceding trading date if Common Stock was not traded on such date), or (b) if the Common Stock is not readily tradeable on a national securities exchange or other market system: (i) the book value of a share of Common Stock as of the last day of the last completed fiscal quarter preceding the date of calculation; or (ii) any other value as otherwise determined in good faith by the Board. 1.17 "HMTF" shall mean Hicks, Muse, Tate & Furst Incorporated, a Delaware corporation. 1.18 "Independent Contractor" shall mean a person or an entity that renders services to the Company, but, if a person, is not an Employee or a Nonemployee Director. 1.19 "ISO" shall mean an "incentive stock option" as such term is used in Code Section 422. 1.20 "Mills & Partners" shall mean Mills & Partners, Inc., a Delaware corporation. 1.21 "Nonemployee Director" shall mean a member of the Board who is not an Employee. 1.22 "Nonqualified Stock Option" shall mean a Stock Option that does not qualify as an ISO. 1.23 "Participant" shall mean any Employee, Nonemployee Director, Affiliated Person or Independent Contractor to whom an Award has been granted by the Committee under the Plan. 1.24 "Performance-Based Award" shall mean an Award subject to the achievement of certain performance goal or goals as described in Section 12 below. 1.25 "Performance Share" shall mean the grant by the Committee to a Participant of an Award as described in Section 10.1 below. 1.26 "Performance Unit" shall mean the grant by the Committee to a Participant of an Award as described in Section 10.2 below. 3 1.27 "Person" shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. 1.28 "Plan" shall mean the Berg Electronics Corp. 1998 Incentive Compensation Plan. 1.29 "SAR" shall mean the grant by the Committee to a Participant of a stock appreciation right as described in Section 8 below. 1.30 "Stock Award" shall mean the grant by the Committee to a Participant of an Award of Common Stock under Section 9.1 below. 1.31 "Stock Option" shall mean the grant by the Committee to a Participant of an option to purchase Common Stock under Section 7 below. 1.32 "Stock Unit" shall mean the grant by the Committee to a Participant of an Award as described in Section 9.2 below. 1.33 "Subsidiary" shall mean a corporation of which the Company directly or indirectly owns more than 50 percent of the common stock entitled to vote generally in the election of directors of such corporation or any other business entity in which the Company directly or indirectly has an ownership interest of more than 50 percent. 1.34 "Treasury Regulations" shall mean the regulations promulgated under the Code by the United States Department of the Treasury, as amended from time to time. 1.35 "Vest" shall mean: (a) with respect to Stock Options and SARs, when the Stock Option or SAR (or a portion of such Stock Option or SAR) first becomes exercisable and remains exercisable subject to the terms and conditions of such Stock Option or SAR; or (b) with respect to Awards other than Stock Options and SARs, when the Participant has an unrestricted right, title and interest to receive the compensation (whether payable in cash, Common Stock, or a combination of both) attributable to an Award (or a portion of such Award) or to otherwise enjoy the benefits underlying such Award, subject to restrictions and/or limitations no greater than the restrictions and/or limitations imposed by Sections 14, 17.2, 17.3, 17.4 and 17.7 below. 1.36 "Vesting Date" shall mean the date or dates on which an Award Vests. 4 2.0 PURPOSE AND TERM OF PLAN 2.1 Purpose. The purpose of the Plan is to motivate certain Employees, Nonemployee Directors, Affiliated Persons and Independent Contractors to put forth maximum efforts toward the growth, profitability, and success of the Company and Subsidiaries by providing incentives to such persons through cash payments and/or through the ownership and performance of the Common Stock. In addition, the Plan is intended to provide incentives which will attract and retain highly qualified individuals as Employees and Nonemployee Directors and to assist in aligning the interests of such Employees and Nonemployee Directors with those of the stockholders of the Company. 2.2 Term. The Plan shall be effective as of the Effective Date. The Plan shall terminate on the 10th anniversary of the Effective Date (unless sooner terminated by the Board). 3.0 ELIGIBILITY AND PARTICIPATION 3.1 Eligibility and Participation. All Employees, Nonemployee Directors, Affiliated Persons and Independent Contractors shall be eligible to participate in the Plan and to receive Awards. Participants shall consist of such Employees, Nonemployee Directors, Affiliated Persons and Independent Contractors as the Committee in its sole discretion designates to receive Awards under the Plan. Designation of a Participant in any year shall not require the Committee to designate such person or entity to receive an Award in any other year or, once designated, to receive the same type or amount of Award as granted to the Participant in any other year. The Committee shall consider such factors as it deems pertinent in selecting Participants and in determining the type and amount of their respective Awards. 4.0 ADMINISTRATION 4.1 Responsibility. The Committee shall have the responsibility, in its sole discretion, to control, operate, manage and administer the Plan in accordance with its terms. 4.2 Award Agreement. Each Award granted under the Plan shall be evidenced by an Award Agreement which shall be signed by the Committee and the Participant; provided, however, that in the event of any conflict between a provision of the Plan and any provision of an Award Agreement, the provision of the Plan shall prevail. 4.3 Authority of the Committee. The Committee shall have all the discretionary authority that may be necessary or helpful to enable it to discharge its responsibilities with respect to the Plan, including but not limited to the following: (a) to determine eligibility for participation in the Plan; 5 (b) to determine eligibility for and the type and size of an Award granted under the Plan; (c) to supply any omission, correct any defect, or reconcile any inconsistency in the Plan in such manner and to such extent as it shall deem appropriate in its sole discretion to carry the same into effect; (d) to issue administrative guidelines as an aid to administer the Plan and make changes in such guidelines as it from time to time deems proper; (e) to make rules for carrying out and administering the Plan and make changes in such rules as it from time to time deems proper; (f) to the extent permitted under the Plan, grant waivers of Plan terms, conditions, restrictions and limitations; (g) to accelerate the Vesting of any Award when such action or actions would be in the best interest of the Company; (h) to grant Awards in replacement of Awards previously granted under the Plan or any other executive compensation plan of the Company; and (i) to take any and all other actions it deems necessary or advisable for the proper operation or administration of the Plan. 4.4 Action by the Committee. The Committee may act only by a majority of its members. Any determination of the Committee may be made, without a meeting, by a writing or writings signed by all of the members of the Committee. In addition, the Committee may authorize any one or more of its members to execute and deliver documents on behalf of the Committee. 4.5 Delegation of Authority. 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; provided, however, that any such delegation shall be in writing. In addition, the Committee, or any person to whom it has delegated duties under this Section 4.5, may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan. The Committee may employ such legal or other counsel, consultants and agents as it may deem desirable for the administration of the Plan and may rely upon any opinion or computation received from any such counsel, consultant or agent. Expenses incurred by the Committee in the engagement of such counsel, consultant or agent shall be paid by the Company, or the Subsidiary whose employees have benefitted from the Plan, as determined by the Committee. 6 4.6 Determinations and Interpretations by the Committee. All determinations and interpretations made by the Committee shall be binding and conclusive on all Participants and their heirs, successors and legal representatives. 4.7 Liability. No member of the Board, no member of the Committee and no employee of the Company shall be liable for any act or failure to act hereunder, except in circumstances involving his or her bad faith, gross negligence or willful misconduct, or for any act or failure to act hereunder by any other member or employee or by any agent to whom duties in connection with the administration of the Plan have been delegated. 4.8 Indemnification. The Company shall indemnify members of the Committee and any agent of the Committee who is an employee of the Company against any and all liabilities or expenses to which they may be subjected by reason of any act or failure to act with respect to their duties on behalf of the Plan, except in circumstances involving such person's bad faith, gross negligence or willful misconduct. 5.0 SHARES SUBJECT TO PLAN 5.1 Available Shares. The aggregate number of shares of Common Stock which shall be available for grants of Awards under the Plan during its term shall be 977,713, which number represents the number of shares of Common Stock available for grants as of the Effective Date under the Company's 1993 Stock Option Plan (the "1993 Plan"), plus not more than 1,424,377 shares of Common Stock underlying Awards which have been granted under the 1993 Plan and which terminate after the Effective Date by expiration, forfeiture, cancellation or otherwise without the issuance of such shares under the 1993 Plan. On or about the Effective Date, the Board shall amend the 1993 Plan so that, except for grants of stock options approved by the Committee on December 18, 1997 (the "December Grants"), no further grants shall be made under the 1993 Plan and all available shares under the 1993 Plan as of the Effective Date (after taking into consideration the December Grants) shall be transferred to the Plan. Shares of Common Stock available for issuance under the Plan may be either authorized but unissued shares, shares of issued stock held in the Company's treasury, or both, at the discretion of the Company, and subject to any adjustments made in accordance with Section 5.2 below. Any shares of Common Stock underlying Awards which terminate by expiration, forfeiture, cancellation or otherwise without the issuance of such shares shall again be available for grants of Awards under the Plan. 5.2 Adjustment to Shares. If there is any change in the Common Stock of the Company, through merger, consolidation, reorganization, recapitalization, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, dividend in kind or other like change in capital structure or distribution (other than normal cash dividends) to stockholders of the Company, an adjustment shall be made 7 to each outstanding Award so that each such Award shall thereafter be with respect to or exercisable for such securities, cash and/or other property as would have been received in respect of the Common Stock subject to such Award had such Award been paid, distributed or exercised in full immediately prior to such change or distribution. Such adjustment shall be made successively each time any such change shall occur. In addition, in the event of any such change or distribution, in order to prevent dilution or enlargement of Participants' rights under the Plan, the Committee shall have the authority to adjust, in an equitable manner, the number and kind of shares that may be issued under the Plan, the number and kind of shares subject to outstanding Awards, the exercise price applicable to outstanding Stock Options and SARs, and the Fair Market Value of the Common Stock and other value determinations applicable to outstanding Awards. Appropriate adjustments may also be made by the Committee in the terms of any Awards granted under the Plan to reflect such changes or distributions and to modify any other terms of outstanding Awards on an equitable basis, including modifications of performance goals and changes in the length of performance periods; provided, however, that with respect to Performance-Based Awards, such modifications and/or changes do not disqualify compensation attributable to such Awards as "performance-based compensation" under Code Section 162(m). In addition, the Committee is authorized to make adjustments to the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events affecting the Company or the financial statements of the Company, or in response to changes in applicable laws, regulations, or accounting principles; provided, however, that with respect to Performance-Based Awards, such modifications and/or changes do not disqualify compensation attributable to such Awards as "performance-based compensation" under Code Section 162(m). Notwithstanding anything contained in the Plan, any adjustment with respect to an ISO due to a change or distribution described in this Section 5.2 shall comply with the rules of Code Section 424(a), and in no event shall any adjustment be made which would render any ISO granted hereunder other than an incentive stock option for purposes of Code Section 422. 6.0 MAXIMUM INDIVIDUAL AWARDS 6.1 Maximum Aggregate Number of Shares Underlying Stock-Based Awards Granted Under the Plan to Any Single Participant. The maximum aggregate number of shares of Common Stock underlying all Awards measured in shares of Common Stock (whether payable in cash, Common Stock, or a combination of both) that may be granted to any single Participant during the life of the Plan shall be 250,000 shares (without regard to any options granted under the 1993 Plan), subject to adjustment as provided in Section 5.2 above. For purposes of the preceding sentence, such Awards that are cancelled or repriced shall continue to be counted in determining such maximum aggregate number of shares of Common Stock that may be granted to any single Participant during the life of the Plan. 8 6.2 Maximum Performance-Based Cash Awards to any Participant. The maximum aggregate amount of Cash Awards intended to qualify as Performance-Based Awards (but not measured in shares of Common Stock) and granted to any single Participant with respect to any fiscal year of the Company ending during the term of the Plan shall be 200% of such Participant's salary for such fiscal year and 200% of such Participant's salary for all fiscal years ending during the term of the Plan, regardless of the date of payment of such Cash Awards, but in no event more than $25 million during the term of the Plan in the aggregate for any single Participant. 7.0 STOCK OPTIONS 7.1 In General. The Committee may, in its sole discretion, grant Stock Options to Employees, Nonemployee Directors, Affiliated Persons and/or Independent Contractors. The Committee shall, in its sole discretion, determine the Employees, the Nonemployee Directors, Affiliated Persons and Independent Contractors who will receive Stock Options and the number of shares of Common Stock underlying each Stock Option. With respect to Employees who become Participants, the Committee may grant such Participants ISOs or Nonqualified Stock Options or a combination of both. With respect to Nonemployee Directors, Affiliated Persons and Independent Contractors who become Participants, the Committee may grant such Participants only Nonqualified Stock Options. Each Stock Option shall be subject to such terms and conditions consistent with the Plan as the Committee may impose from time to time. In addition, each Stock Option shall be subject to the terms and conditions set forth in Sections 7.2 through 7.8 below. 7.2 Exercise Price. The Committee shall specify the exercise price of each Stock Option in the Award Agreement; provided, however, that (i) the exercise price of any ISO shall not be less than 100 percent of the Fair Market Value of the Common Stock on the date of grant and (ii) the exercise price of any Nonqualified Stock Option shall not be less than 100 percent of the Fair Market Value of the Common Stock on the date of grant unless the Committee, in its sole discretion and due to special circumstances, determines otherwise on the date of grant. 7.3 Term of Stock Option. The Committee shall specify the term of each Stock Option in the Award Agreement; provided, however, that: (a) no ISO shall be exercised after the 10th anniversary of the date of grant of such ISO; and (b) no Nonqualified Stock Option shall be exercised after the 10th anniversary of the date of grant of such Nonqualified Stock Option, unless the Committee, in its sole discretion, provides otherwise. 9 Each Stock Option shall terminate at such earlier times and upon such conditions or circumstances as the Committee shall, in its sole discretion, set forth in the Award Agreement on the date of grant. 7.4 Vesting Date. The Committee shall specify the Vesting Date with respect to each Stock Option in the Award Agreement. The Committee may grant Stock Options that are Vested, either in whole or in part, on the date of grant. If the Committee fails to specify in the Award Agreement the percent of a Stock Option that Vests and the applicable date(s) of such Vesting, such Stock Option shall become exercisable in accordance with the following schedule: ============================================================= Anniversary of Date of Grant Percent That Vests ------------------------------------------------------------- On or after 1st 20% ------------------------------------------------------------- On or after 2nd 40% ------------------------------------------------------------- On or after 3rd 60% ------------------------------------------------------------- On or after 4th 80% ------------------------------------------------------------- On or after 5th 100% ============================================================= Notwithstanding any provision in the Plan or an Award Agreement to the contrary, a Stock Option shall not become exercisable with respect to a fractional share of Common Stock, and the portion of such Stock Option that otherwise would have become Vested may Vest, if at all, at a later Vesting Date or shall be subject to the provisions of Section 17.10. The Vesting of a Stock Option may also be subject to such other terms and conditions as shall be determined by the Committee, including, without limitation, accelerating the Vesting (i) based on individual performance or (ii) if certain performance goals are achieved. 7.5 Exercise of Stock Options. The Stock Option exercise price may be paid in cash or, in the sole discretion of the Committee, by the delivery of shares of Common Stock then owned by the Participant, by the withholding of shares of Common Stock for which a Stock Option is exercisable or by a combination of these methods. In the sole discretion of the Committee, payment may also be made by delivering a properly executed exercise notice to the Company together with a copy of irrevocable instructions to a broker to deliver promptly to the Company the amount of sale or loan proceeds to pay the exercise price. To facilitate the foregoing, the Company may enter into agreements for coordinated procedures with one or more brokerage firms. The Committee may prescribe any other method of paying the exercise price that it determines to be consistent with applicable law and the purposes of the Plan, including, without limitation, in lieu of the 10 exercise of a Stock Option by delivery of shares of Common Stock then owned by a Participant, providing the Company with a notarized statement attesting to the number of shares owned by the Participant, where upon verification by the Company, the Company would issue to the Participant only the number of incremental shares to which the Participant is entitled upon exercise of the Stock Option. In determining which methods a Participant may utilize to pay the exercise price, the Committee may consider such factors as it determines are appropriate; provided, however, that with respect to ISOs, all such discretionary determinations by the Committee shall be made at the time of grant and specified in the Award Agreement. 7.6 Restrictions Relating to ISOs. In addition to being subject to the terms and conditions of this Section 7, ISOs shall comply with all other requirements under Code Section 422. Accordingly, ISOs may be granted only to Participants who are employees (as described in Treasury Regulation Section 1.421-7(h)) of the Company or of any "Parent Corporation" (as defined in Code Section 424(e)) or of any "Subsidiary Corporation" (as defined in Code Section 424(f)) on the date of grant. The aggregate market value (determined as of the time the ISO is granted) of the Common Stock with respect to which ISOs (under all option plans of the Company and of any Parent Corporation and of any Subsidiary Corporation) are exercisable for the first time by a Participant during any calendar year shall not exceed $100,000. For purposes of the preceding sentence, (i) ISOs shall be taken into account in the order in which they are granted and (ii) ISOs granted before 1987 shall not be taken into account. ISOs shall not be transferable by the Participant otherwise than by will or the laws of descent and distribution and shall be exercisable, during the Participant's lifetime, only by such Participant. The Committee shall not grant ISOs to any Employee who, at the time the ISO is granted, owns stock possessing (after the application of the attribution rules of Code Section 424(d)) more than 10 percent of the total combined voting power of all classes of stock of the Company or of any Parent Corporation or of any Subsidiary Corporation unless the exercise price of the ISO is fixed at not less than 110 percent of the Fair Market Value of the Common Stock on the date of grant and the exercise of such ISO is prohibited by its terms after the 5th anniversary of the ISO's date of grant. In addition, no ISO shall be issued to a Participant in tandem with a Nonqualified Stock Option issued to such Participant in accordance with Treasury Regulation Section 14a.422A-1, Q/A-39. 7.7 Additional Terms and Conditions. The Committee may, by way of the Award Agreements or otherwise, establish such other terms, conditions, restrictions and/or limitations, if any, of any Stock Option, provided they are not inconsistent with the Plan, including, without limitation, the requirement that the Participant not engage in competition with the Company. 11 7.8 Conversion Stock Options. The Committee may, in its sole discretion, grant a Stock Option to any holder of an option (an "Original Option") to purchase shares of the stock of any corporation: (i) the stock or assets of which were acquired, directly or indirectly, by the Company or any Subsidiary; or (ii) which was merged with and into the Company or a Subsidiary; so that the Original Option is "converted" into a Stock Option (a "Conversion Stock Option"); provided, however, that such Conversion Stock Option as of the date of its grant (the "Conversion Stock Option Grant Date") shall have the same economic value as the Original Option as of the Conversion Stock Option Grant Date. In addition, unless the Committee in its sole discretion determines otherwise, a Conversion Stock Option which is converting an Original Option intended to qualify as an ISO shall have the same terms and conditions as applicable to the Original Option in accordance with Code Section 424 and the Treasury Regulations thereunder so that the conversion (x) is treated as the issuance or assumption of a stock option under Code Section 424(a) and (y) is not treated as a modification, extension or renewal of a stock option under Code Section 424(h). 8.0 SARS 8.1 In General. The Committee may, in its sole discretion, grant SARs to Employees, Nonemployee Directors, Affiliated Persons and/or Independent Contractors. An SAR is a right to receive a payment in cash, Common Stock or a combination of both, in an amount equal to the excess of: (x) the Fair Market Value of the Common Stock, or other specified valuation, of a specified number of shares of Common Stock on the date the SAR is exercised; over (y) the Fair Market Value of the Common Stock, or other specified valuation (which shall be no less than the Fair Market Value of the Common Stock), of such shares of Common Stock on the date the SAR is granted, all as determined by the Committee; provided, however, that if a SAR is granted retroactively in tandem with or in substitution for a Stock Option, the designated Fair Market Value of the Common Stock in the Award Agreement may be the Fair Market Value of the Common Stock on the date such Stock Option was granted. Each SAR shall be subject to such terms and conditions, including, but not limited to, a provision that automatically converts a SAR into a Stock Option on a 12 conversion date specified at the time of grant, as the Committee shall impose from time to time in its sole discretion and subject to the terms of the Plan. 9.0 STOCK AWARDS AND STOCK UNITS 9.1 Stock Awards. The Committee may, in its sole discretion, grant Stock Awards to Employees, Nonemployee Directors, Affiliated Persons, and/or Independent Contractors as additional compensation or in lieu of other compensation for services to the Company. A Stock Award shall consist of shares of Common Stock which shall be subject to such terms and conditions as the Committee, in its sole discretion, determines appropriate, including, without limitation, restrictions on the sale or other disposition of such shares, the Vesting Date with respect to such shares and the right of the Company to reacquire such shares for no consideration upon termination of the Participant's employment within specified periods. The Committee may require the Participant to deliver a duly signed stock power, endorsed in blank, relating to the Common Stock covered by such Stock Award and/or that the stock certificates evidencing such shares be held in custody or bear restrictive legends until the restrictions thereon shall have lapsed. With respect to the shares of Common Stock subject to a Stock Award granted to a Participant, such Participant shall have all of the rights of a holder of shares of Common Stock, including the right to receive dividends and to vote the shares, unless the Committee determines otherwise on the date of grant. 9.2 Stock Units. The Committee may, in its sole discretion, grant Stock Units to Employees, Nonemployee Directors, Affiliated Persons and/or Independent Contractors as additional compensation or in lieu of other compensation for services to the Company. A Stock Unit is a hypothetical share of Common Stock represented by a notional account established and maintained (or caused to be established or maintained) by the Company for such Participant who receives a grant of Stock Units. Stock Units shall be subject to such terms and conditions as the Committee, in its sole discretion, determines appropriate, including, without limitation, determinations of the Vesting Date with respect to such Stock Units and the criteria for the Vesting of such Stock Units. A Stock Unit granted by the Committee shall provide for payment in shares of Common Stock at such time or times as the Award Agreement shall specify. The Committee shall determine whether a Participant who has been granted a Stock Unit shall also be entitled to a Dividend Equivalent Right. 9.3 Payout of Stock Units. Subject to a Participant's election to defer in accordance with Section 17.3 below, upon the Vesting of a Stock Unit, the shares of Common Stock representing the Stock Unit shall be distributed to the Participant, unless the Committee, in its sole discretion, provides for the payment of the Stock Unit in cash (or partially in cash and partially in shares of Common Stock) equal to the value of the shares of Common Stock which would otherwise be distributed to the Participant. 13 10.0 PERFORMANCE SHARES AND PERFORMANCE UNITS 10.1 Performance Shares. The Committee may, in its sole discretion, grant Performance Shares to Employees, Nonemployee Directors, Affiliated Persons, and/or Independent Contractors as additional compensation or in lieu of other compensation for services to the Company. A Performance Share shall consist of a share or shares of Common Stock which shall be subject to such terms and conditions as the Committee, in its sole discretion, determines appropriate, including, without limitation, determining the performance goal or goals which, depending on the extent to which such goals are met, will determine the number and/or value of the Performance Shares that will be paid out or distributed to the Participant who has been granted Performance Shares. Performance goals may be based on, without limitation, Company-wide, divisional and/or individual performance, as the Committee, in its sole discretion, may determine, and may be based on the performance measures listed in Section 12.3 below. 10.2 Performance Units. The Committee may, in its sole discretion, grant Performance Units to Employees, Nonemployee Directors, Affiliated Persons, and/or Independent Contractors as additional compensation or in lieu of other compensation for services to the Company. A Performance Unit is a hypothetical share or shares of Common Stock represented by a notional account which shall be established and maintained (or caused to be established or maintained) by the Company for such Participant who receives a grant of Performance Units. Performance Units shall be subject to such terms and conditions as the Committee, in its sole discretion, determines appropriate, including, without limitation, determining the performance goal or goals which, depending on the extent to which such goals are met, will determine the number and/or value of the Performance Units that will be accrued with respect to the Participant who has been granted Performance Units. Performance goals may be based on, without limitation, Company-wide, divisional and/or individual performance, as the Committee, in its sole discretion, may determine, and may be based on the performance measures listed in Section 12.3 below. 10.3 Adjustment of Performance Goals. With respect to those Performance Shares or Performance Units that are not intended to qualify as Performance-Based Awards (as described in Section 12 below), the Committee shall have the authority at any time to make adjustments to performance goals for any outstanding Performance Shares or Performance Units which the Committee deems necessary or desirable unless at the time of establishment of the performance goals the Committee shall have precluded its authority to make such adjustments. 10.4 Payout of Performance Shares or Performance Units. Subject to a Participant's election to defer in accordance with Section 17.3 below, upon the Vesting of a Performance Share or a Performance Unit, the Performance Share or the Performance 14 Unit shall be distributed to the Participant in shares of Common Stock, unless the Committee, in its sole discretion, provides for the payment of the Performance Share or a Performance Unit in cash (or partially in cash and partially in shares of Common Stock) equal to the value of the shares of Common Stock which would otherwise be distributed to the Participant. 11.0 CASH AWARDS 11.1 In General. The Committee may, in its sole discretion, grant Cash Awards to Employees, Nonemployee Directors, Affiliated Persons, and/or Independent Contractors as additional compensation or in lieu of other compensation for services to the Company. A Cash Award shall be subject to such terms and conditions as the Committee, in its sole discretion, determines appropriate, including, without limitation, determining the Vesting Date with respect to such Cash Award, the criteria for the Vesting of such Cash Award, and the right of the Company to require the Participant to repay the Cash Award (with or without interest) upon termination of the Participant's employment within specified periods. 12.0 PERFORMANCE-BASED AWARDS 12.1 In General. The Committee, in its sole discretion, may designate and design Awards granted under the Plan as Performance-Based Awards if it determines that compensation attributable to such Awards might not otherwise be tax deductible by the Company due to the deduction limitation imposed by Code Section 162(m). Accordingly, an Award granted under the Plan may be granted in such a manner that the compensation attributable to such Award is intended by the Committee to qualify as "performance-based compensation" (as such term is used in Code Section 162(m) and the Treasury Regulations thereunder) and thus be exempt from the deduction limitation imposed by Code Section 162(m) ("Performance-Based Awards"). 12.2 Qualification of Performance-Based Awards. Awards shall qualify as Performance-Based Awards under the Plan only if: (a) at the time of grant at least two members of the Committee, acting as a separate committee, qualify as "outside directors" (as such term is used in Code Section 162(m) and the Treasury Regulation thereunder); (b) with respect to either the granting or Vesting of an Award (other than (i) a Nonqualified Stock Option or (ii) a SAR, either of which is granted with an exercise price at or above the Fair Market Value of the Common Stock on the date of grant), such Award is subject to the achievement of a performance goal or 15 goals based on one or more of the performance measures specified in Section 12.3 below; (c) the Committee establishes in writing (i) the objective performance-based goals applicable to a given performance period and (ii) the individual employees or class of employees to which such performance-based goals apply no later than 90 days after the commencement of such performance period (but in no event after 25 percent of such performance period has elapsed); (d) no compensation attributable to a Performance-Based Award will be paid to or otherwise received by a Participant until the Committee certifies in writing that the performance goal or goals (and any other material terms) applicable to such performance period have been satisfied; and (e) after the establishment of a performance goal, the Committee shall not revise such performance goal (unless such revision will not disqualify compensation attributable to the Award as "performance-based compensation" under Code Section 162(m)) or increase the amount of compensation payable with respect to such Award upon the attainment of such performance goal. 12.3 Performance Measures. The Committee may use the following performance measures (either individually or in any combination) to set performance goals with respect to Awards intended to qualify as Performance-Based Awards: net sales; pre-tax income before allocation of corporate overhead and bonus; budget; cash flow; earnings per share; net income; division, group or corporate financial goals; return on stockholders' equity; return on assets; attainment of strategic and operational initiatives; appreciation in and/or maintenance of the price of the Common Stock or any other publicly-traded securities of the Company; market share; gross profits; earnings before interest and taxes; earnings before interest, taxes, depreciation and amortization; economic value-added models; comparisons with various stock market indices; increase in number of customers; and/or reductions in costs. 12.4 Shareholder Reapproval. As required by Treasury Regulation Section 1.162-27(e)(vi), the material terms of performance goals as described in this Section 12 shall be disclosed to and reapproved by the Company's stockholders no later than the first stockholder meeting that occurs in the 5th year following the year in which the Company's stockholders previously approved such performance goals. 13.0 CHANGE IN CONTROL 13.1 Accelerated Vesting or Payout. Notwithstanding any other provision of this Plan to the contrary, if there is a Change in Control of the Company, the Committee may accelerate 16 the Vesting Date and/or payout of such Awards; provided, however, that such action shall not conflict with any provision contained in an Award Agreement unless such provision is amended in accordance with Section 16.3 below. 14.0 TERMINATION OF EMPLOYMENT IF PARTICIPANT IS AN EMPLOYEE 14.1 Termination of Employment Due to Death or Disability. Subject to Section 14.4 and any written agreement between the Company and a Participant, if a Participant's employment is terminated due to death or disability: (a) all non-Vested portions of Awards held by the Participant on the date of the Participant's death or the date of the termination of his or her employment, as the case may be, shall immediately be forfeited by such Participant as of such date; and (b) all Vested portions of Stock Options and SARs held by the Participant on the date of the Participant's death or the date of the termination of his or her employment, as the case may be, shall remain exercisable until the earlier of: (i) the end of the 12-month period following the date of the Participant's death or the date of the termination of his or her employment, as the case may be; or (ii) the date the Stock Option or SAR would otherwise expire. 14.2 Termination of Employment for Cause. Subject to any written agreement between the Company and a Participant, if such Participant's employment is terminated by the Company for cause or voluntarily by such Participant, all Awards held by a Participant on the date of any such termination of his or her employment, whether Vested or non-Vested, shall immediately be forfeited by such Participant as of such date. 14.3 Other Terminations of Employment. Subject to any written agreement between the Company and a Participant, if such Participant's employment is terminated for any reason other than for cause or such Participant's death, disability or voluntary resignation: (a) all non-Vested portions of Awards held by the Participant on the date of the termination of his or her employment shall immediately be forfeited by such Participant as of such date; and (b) all Vested portions of Stock Options and/or SARs held by the Participant on the date of the termination of his or her employment shall remain exercisable until the earlier of: 17 (i) the end of the 90-day period following the date of the termination of the Participant's employment; or (ii) the date the Stock Option or SAR would otherwise expire. 14.4 Committee Discretion. Notwithstanding anything contained in the Plan to the contrary, except in the event (i) a Participant is terminated by the Company for cause or (ii) a Participant voluntarily resigns his or her employment with the Company, the Committee may, in its sole discretion and at anytime, provide that: (a) any or all non-Vested portions of Stock Options and/or SARs held by the Participant on the date of the Participant's death and/or the date of the termination of his or her employment shall immediately become exercisable as of such date and, except with respect to ISOs, shall remain exercisable until a date that occurs on or prior to the date the Stock Option or SAR is scheduled to expire; (b) any or all Vested portions of Nonqualified Stock Options and/or SARs held by the Participant on the date of the Participant's death and/or the date of the termination of his or her employment shall remain exercisable until a date that occurs on or prior to the date the Stock Option or SAR is scheduled to expire; and/or (c) any or all non-Vested portions of Stock Awards, Stock Units, Performance Shares, Performance Units and/or Cash Awards held by the Participant on the date of the Participant's death and/or the date of the termination of his or her employment shall immediately Vest or shall become Vested on a date that occurs on or prior to the date the Award is scheduled to vest. 14.5 ISOs. Notwithstanding anything contained in the Plan to the contrary, (i) the provisions contained in this Section 14 shall be applied to an ISO only if the application of such provision maintains the treatment of such ISO as an ISO and (ii) the exercise period of an ISO in the event of a termination of the Participant's employment due to disability provided in Section 14.1 above shall be applied only if the Participant is "permanently and totally disabled" (as such term is defined in Code Section 22(e)(3)). 15.0 TAXES 15.1 Withholding Taxes. With respect to Employees, the Company, or the applicable Subsidiary, may require a Participant who has become Vested in his or her Stock Award, Stock Unit, Performance Share or Performance Unit granted hereunder, or who exercises a Stock Option or SAR granted hereunder to reimburse the corporation which employs such Participant for any taxes required by any governmental regulatory authority to be withheld or otherwise deducted and paid by such corporation or entity in respect of the 18 issuance or disposition of such shares or the payment of any amounts. In lieu thereof, the corporation or entity which employs such Participant shall have the right to withhold the amount of such taxes from any other sums due or to become due from such corporation or entity to the Participant upon such terms and conditions as the Committee shall prescribe. The corporation or entity that employs such Participant may, in its discretion, hold the stock certificate to which such Participant is entitled upon the Vesting of a Stock Award, Stock Unit, Performance Share or Performance Unit or the exercise of a Stock Option or SAR as security for the payment of such withholding tax liability, until cash sufficient to pay that liability has been accumulated. 15.2 Use of Common Stock to Satisfy Withholding Obligation. With respect to Employees, at any time that the Company, Subsidiary or other entity that employs such Participant becomes subject to a withholding obligation under applicable law with respect to the Vesting of a Stock Award, Stock Unit, Performance Share or Performance Unit or the exercise of a Nonqualified Stock Option (the "Tax Date"), except as set forth below, a holder of such Award may, with the prior written consent of the Committee, elect to satisfy, in whole or in part, the holder's related personal tax liabilities (an "Election") by (i) directing the Company, Subsidiary or other entity that employs such Participant to withhold from shares issuable in the related Vesting or exercise either a specified number of shares or shares of Common Stock having a specified value (in each case not in excess of the related personal tax liabilities), (ii) tendering shares of Common Stock previously issued pursuant to the exercise of a Stock Option or other shares of the Common Stock owned by the holder, or (iii) combining any or all of the foregoing Elections in any fashion. An Election shall be irrevocable. The withheld shares and other shares of Common Stock tendered in payment shall be valued at their Fair Market Value of the Common Stock on the Tax Date. The Committee may suspend or terminate the right to make Elections or provide that the right to make Elections shall not apply to particular shares or exercises. The Committee may impose any additional conditions or restrictions on the right to make an Election as it shall deem appropriate, including conditions or restrictions with respect to Section 16 of the Exchange Act. 15.3 Compliance with Code Section 162(m). Unless otherwise determined by the Committee in its discretion, any performance goals applicable to any Employee who is a "covered employee" within the meaning of Code Section 162(m) shall be determined by the Committee by its members who qualify as "non-employee directors" within the meaning of Rule 16b-3(b)(3) of the Exchange Act and as "outside directors" within the meaning of such Code Section, and such members of the Committee shall also certify in accordance with the provisions of such Code Section and applicable Treasury Regulations whether such performance goals have been attained for purposes of an Award. The Committee may delegate any other matters relating to Employees qualifying as "covered employees" to its members who qualify as non-employee, outside directors. The performance goals determined by the members of the Committee who qualify as non-employee, outside 19 directors and such other matters as may be delegated by the Committee to such members shall be subject to separate ratification by the unanimous approval of all members of the Committee, unless the Committee determines otherwise. 15.4 No Guarantee of Tax Consequences. No person connected with the Plan in any capacity, including, but not limited to, the Company and any Subsidiary and their directors, officers, agents and employees makes any representation, commitment or guarantee that any tax treatment, including, but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to amounts deferred under the Plan, or paid to or for the benefit of a Participant under the Plan, or that such tax treatment will apply to or be available to a Participant on account of participation in the Plan. 16.0 AMENDMENT AND TERMINATION 16.1 Termination of Plan. The Board may suspend or terminate the Plan at any time with or without prior notice; provided, however, that no action authorized by this Section 16.1 shall reduce the amount of any outstanding Award or change the terms and conditions thereof without the Participant's consent. 16.2 Amendment of Plan. The Board may amend the Plan at any time with or without prior notice; provided, however, that no action authorized by this Section 16.2 shall reduce the amount of any outstanding Award or change the terms and conditions thereof without the Participant's consent. No amendment of the Plan shall, without the approval of the stockholders of the Company: (a) increase the total number of shares which may be issued under the Plan; (b) increase the maximum number of shares with respect to all Awards measured in Common Stock that may be granted to any individual under the Plan; (c) increase the maximum dollar amount with respect to all Awards measured in cash that may be paid to any individual under the Plan; or (d) modify the requirements as to eligibility for Awards under the Plan. In addition, the Plan shall not be amended without the approval of such amendment by the Company's stockholders if such amendment (i) is required under the rules and regulations of the stock exchange or national market system on which the Common Stock is listed or (ii) will disqualify any ISO granted hereunder. 20 16.3 Amendment or Cancellation of Award Agreements. The Committee may amend or modify any Award Agreement at any time by mutual agreement between the Committee and the Participant or such other persons as may then have an interest therein. In addition, by mutual agreement between the Committee and a Participant or such other persons as may then have an interest therein, Awards may be granted to an Employee, Nonemployee Director, Affiliated Person or Independent Contractor in substitution and exchange for, and in cancellation of, any Awards previously granted to such Employee, Nonemployee Director, Affiliated Person or Independent Contractor under the Plan, or any award previously granted to such Employee, Nonemployee Director, Affiliated Person or Independent Contractor under any other present or future plan of the Company or any present or future plan of an entity which (i) is purchased by the Company, (ii) purchases the Company, or (iii) merges into or with the Company. 17.0 MISCELLANEOUS 17.1 Other Provisions. Awards granted under the Plan may also be subject to such other provisions (whether or not applicable to the Award granted to any other Participant) as the Committee determines on the date of grant to be appropriate, including, without limitation, for the installment purchase of Common Stock under Stock Options, to assist the Participant in financing the acquisition of Common Stock, for the forfeiture of, or restrictions on resale or other disposition of, Common Stock acquired under any Stock Option, for the acceleration of Vesting of Awards in the event of a Change in Control of the Company, for the payment of the value of Awards to Participants in the event of a Change in Control of the Company, or to comply with federal and state securities laws, or understandings or conditions as to the Participant's employment in addition to those specifically provided for under the Plan. 17.2 Transferability. Each Award granted under the Plan to a Participant and any interest therein shall not be transferable otherwise than by will or the laws of descent and distribution, and Stock Options and SARs shall be exercisable, during the Participant's lifetime, only by the Participant. In the event of the death of a Participant, each Stock Option or SAR theretofore granted to him or her shall be exercisable during such period after his or her death as the Committee shall, in its sole discretion, set forth in the Award Agreement on the date of grant and then only by the executor or administrator of the estate of the deceased Participant or the person or persons to whom the deceased Participant's rights under the Stock Option or SAR shall pass by will or the laws of descent and distribution. Any purported transfer of an Award or any interest therein to a creditor of a Participant shall be void, and the Award may be forfeited at the discretion of the Committee. Notwithstanding the foregoing, the Committee, in its sole discretion and on a case-by-case basis, may permit the transferability of a Nonqualified Stock Option by a Participant, including to, but not limited to, members of the Participant's immediate family or trusts or family partnerships or other similar entities for the benefit of such 21 persons, and all such transfers shall be subject to such terms, conditions, restrictions and/or limitations, if any, as the Committee may establish and include in the Award Agreement or any amendment thereto. 17.3 Election to Defer Compensation Attributable to Award. The Committee may, in its sole discretion, allow a Participant to elect to defer the receipt of any compensation attributable to an Award under guidelines and procedures to be established by the Committee after taking into account the advice of the Company's tax counsel. 17.4 Listing of Shares and Related Matters. If at any time the Committee shall determine that the listing, registration or qualification of the shares of Common Stock subject to any Award on any securities exchange or under any applicable law, or the consent or approval of any governmental regulatory authority, is necessary or desirable as a condition of, or in connection with, the granting of an Award or the issuance of shares of Common Stock thereunder, such Award may not be exercised, distributed or paid out, as the case may be, in whole or in part, unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee. 17.5 No Right, Title, or Interest in Company Assets. Participants shall have no right, title, or interest whatsoever in or to any investments which the Company may make to aid it in meeting its obligations under the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative or other person. To the extent that any person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Company. All payments to be made hereunder shall be paid from the general funds of the Company and no special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts except as expressly set forth in the Plan. The Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974, as amended. 17.6 No Right to Continued Employment or Service or to Grants. The Participant's rights, if any, to continue to serve the Company as a director, officer, employee, independent contractor or otherwise, shall not be enlarged or otherwise affected by his or her designation as a Participant under the Plan, and the Company or the applicable Subsidiary reserves the right to terminate the employment of any Employee or the services of any Independent Contractor or director at any time. The adoption of the Plan shall not be deemed to give any Employee, Nonemployee Director, Affiliated Person or Independent Contractor or any other individual any right to be selected as a Participant or to be granted an Award. 22 17.7 Awards Subject to Foreign Laws. The Committee may grant Awards to individual Participants who are subject to the tax laws of nations other than the United States, and such Awards may have terms and conditions as determined by the Committee as necessary to comply with applicable foreign laws. The Committee may take any action which it deems advisable to obtain approval of such Awards by the appropriate foreign governmental entity; provided, however, that no such Awards may be granted pursuant to this Section 17.7 and no action may be taken which would result in a violation of the Exchange Act or any other applicable law. 17.8 Governing Law. The Plan, all Awards granted hereunder, and all actions taken in connection herewith shall be governed by and construed in accordance with the laws of the State of Delaware without reference to principles of conflict of laws, except as superseded by applicable federal law. 17.9 Other Benefits. No Award granted under the Plan shall be considered compensation for purposes of computing benefits under any retirement plan of the Company or any Subsidiary nor affect any benefits or compensation under any other benefit or compensation plan of the Company or any Subsidiary now or subsequently in effect. 17.10 No Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, Common Stock, Stock Options or other property shall be issued or paid in lieu of fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated. 23 EX-5 4 OPINION LETTER EXHIBIT 5 WEIL, GOTSHAL & MANGES LLP 100 Crescent Court, Suite 1300 Dallas, Texas 75201-6950 (214) 746-7700 (214) 746-7777 (fax) June 26, 1998 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 26, 1998 (the "Registration Statement"), under the Securities Act of 1933, as amended, with respect to the offer and sale by the Company of up to 977,713 shares (the "Registered Shares") of the common stock, par value $.01 per share, of the Company issuable from time to time under the Company's 1998 Incentive Compensation 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, a form of award agreement to be utilized 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. Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that when (a) the purchase price for the Registered Shares issuable under the Plan has been appropriately determined in accordance with the terms of the Plan and the provisions of the 1 General Corporation Law of the State of Delaware (the "DGCL") (including the provisions requiring the payment of consideration having a value not less than the par value of such shares); (b) each award under the Plan has been duly authorized in accordance with the terms of the Plan and the applicable provisions of the DGCL and the award agreement has been duly executed and delivered by the Company and the recipient of such award; and (c) such Registered Shares are issued and delivered in accordance with the terms of the Plan and the award 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. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, 2 EX-23.1 5 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS 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 January 27, 1998 included in Berg Electronics Corp.'s Form 10-K for the year ended December 31, 1997, and to all references to our firm included in this registration statement. ARTHUR ANDERSEN LLP St. Louis, Missouri June 26, 1998 1 -----END PRIVACY-ENHANCED MESSAGE-----